UNBUNDLING THE PROPOSED FAZ EMERGENCY GENEAL MEETING

Welcome back. In the morning I gave my opinion on the legitimacy of the EGM called by the minister and also explained what it takes to call one and convene it.

EGMs in many institutions are called Extra-Ordinary General Meetings. FAZ calls its EGM the Emergency General Meeting. The operative word here is “emergency”. Now, what emergency do we have right now to have this meeting when all the agenda items can actually be discussed at the elective AGM already scheduled after the courts have concluded and the COVID-19 epidemic is no more.

DECISIONS OF THE EGM BEING FINAL AND BINDING

The Sports Minister, in his national address on Saturday, added that the outcome of the AGM would be final and that everyone would have to comply with resolutions. The minister also promised to ban anyone who would abrogate what would be agreed upon by the EGM.

Two problems I find in that ….. Firstly, I am at sea here because FAZ Council resolutions can easily be changed by subsequent council meetings provided agenda items in the subsequent meetings allow. So I don’t know what is being said to be finally here. Further, a person who is a party to the FAZ process can always appeal to the Court of Arbitration for Sport (CAS) pursuant to Article 65(1) since the FAZ Arbitration Tribunal hasn’t been appointed yet in accordance with Article 63. Clearly, the minister should recognise that whatever is discussed in the EGM – if it will even happen – can be appealed against through the Court of Arbitration for Sport. Nothing from EGM is final albeit binding. Secondly, the shocking thing here is that the ministry is not part of FAZ. So how can the minister direct what is to be discussed in these meetings and then use decisions therefrom to ban people? The first part starts to sound like interference in the running of the association. Let the clubs and other members of FAZ call for this meeting if they need it and then make their own decisions. And implement those decisions. Not the ministry. Or NSCZ.

The duty of the NSCZ is not to direct and manage activities within the various associations. The National Sports Council of Zambia (NSCZ) Act, enacted in Parliament in 1977 under Cap 142 of the laws of Zambia, seeks to promote, coordinate, monitor, evaluate and register all sports associations. The main function of the National Sports Council of Zambia is to “Coordinate development of strategic plans on sports development in all the sports associations and ensures the adoption of approved standards of coaching, administration, and management in all aspects of sport delivery in line with international practice in sports”. It has no powers call for meetings within associations. The Powers of the FAZ Council, in Article 23 (Q), include “passing decisions at the request of a member in accordance with these statutes”. This means that there is no room for decisions to be made on matters proposed by the minister or the National Sports Council of Zambia unless these were being made by members.

So clearly they the ministry and NSCZ cannot call this meeting or chair it or enforce its decisions. In fact, Article 21(1) of the FAZ Constitution of 2017 as amended in 2019 clear states that “… Only an AGM that is duly convened has the authority to make decisions.” This means that if a FAZ AGM or EGM is not duly convened, then its decisions shall not be legitimate and binding. If the ministry or lawyers force the EGM, whatever decisions are made there are not binding. This is exactly what happened when Simataa and Kamanga and others had an AGM in Kabwe but the legitimate FAZ leaders had theirs in Moba Hotel. The Kabwe AGM was ultra vires. All decisions were void ab initio! Only an AGM that is duly convened has the authority to make decisions. Binding decisions. Legitimate decisions based on the mandate.

RECOGNITION OF KAMANGA AS FAZ PRESIDENT IS KEY TO THE HOLDING OF ANY EGM

The irony of this who debacle is that the FAZ EGM cannot be held without Kamanga and Kashala or should I say, Andrew and Adrian. For the last few weeks now, sections of the Zambian society have been saying the mandate of Kamanga has ended. Article 21(3) of the FAZ Statutes says that “The president shall conduct the AGM business in compliance with the standing orders of the Council. Without him chairing the EGM it becomes an illegal meeting. So will the people who don’t recognise him now recognise him so that he can chair this EGM? If yes, why? What is so important about the AGM then you can even recognise a person you didn’t did so before?

Talking about chairing and attending this EGM, the minister said his ministry through NSCZ would attend the meeting as “referees”. Further, I am told there were suggestions that the EGM being called by the minister be chaired by NSCZ. Now, this is illegal as far as the FAZ constitution is concerned. There is no room for the minister and others to attend as “referees” as far as the FAZ Statutes are concerned. The ministry and NSCZ can only attend the EGM as observers. Article 21(3) says “The AGM may appoint observers who take part in the Council without the right to deliberate or vote.” So NSCZ cannot deliberate and therefore cannot chair and cast votes since the chairman always has an inherent casting vote in meetings.

Even FIFA can’t attend this meeting and undertake deliberations or vote or make decisions. The minister did hint that the EGM should include FIFA envoys. However, the FAZ statutes frown upon outsiders taking part in deliberations of an EGM let alone making binding rulings on FAZ.

What the minister, ECZ and FIFA need is what all of us have been calling for. An Indaba. This a be chaired by neutral people but won’t is under FAZ. It will be a national event. Further, what we need is for the Kalusha camp and the Kamanga camp to sign an MoU for reconciliation which spells out matters. Remember that even then it is universally agreed that the FAZ and FIFA Statutes need to be followed.

Another controversial announcement by the minister was that he wants the FAZ Council at the EGM to decide whether the FAZ Executive is still in charge or not. Now that is a wrong agenda item already. It kills the vibe altogether. It goes against the constitution and the guidelines given by FIFA. How can you recognise the FAZ ExComm and ask them to legitimately call for a meeting and hold it legally, then during the meeting you decide to discuss their legitimacy? Hmmm. Nayine ningavitakate. The FAZ Constitution is clear on the ExComm mandate in Article 5 of the Transitory Provisions. The stay in office even after their term of office has ended so that they president over the elections and hand over power AFTER ELECTIONS. Further, FIFA has already endorsed the Kamanga ExComm to remain in office over the COVID-19 period. So why should that be an agenda item?

THE COVID-19 PANDEMIC UPHEAVAL

With the Novel Coronavirus causing havoc around the world, it is impractical to call for the FAZ EGM because it is not known how long the prohibition of meetings with more than 50 people will go on. The EGM is supposed to have 132 delegates and about 30 FAZ staff and observers and 9 Executive Committee members. The meeting could easily have 200 people when you add media and others. This is against the ministry of health guidelines.

Is the EGM so important that it has to be called even during the COVID time? Why should people from COVID hotspots attend the EGM and potentially spread the virus? Surely the same way we are waiting for the league to resume, the ABSA Cup to be played in the same way the AGM can wait together with elections. I mean unless there is something we don’t know which can’t wait. Zambian lives matter. Football lives matter. Afterall nivi bola chabe ivi.

Now think of it this way… assuming football clubs and other FAZ council members come up with a petition to call for an EGM today 15th March 2020, the EGM has to be called for mid-July i.e. 15th July 2020. But what happens if the pandemic has not relented by then? Does the FAZ GS break the FAZ constitution and guidelines by postponing the EGM beyond the 3 months limit? That would be a crisis and illegal. It therefore only makes sense for the EGM to be called after the COVID pandemic ends. If it has to be called. Better still present the issues raises at the elective AGM as A.O.B. Any Other Business.

CHANGING THE CONSTITUTION TO ALLOW BARRED CANDIDATES TO STAND

Many people speculate that this meeting is only being pushed to influence the change of FAZ statutes to remove legal impediments for Kalusha Bwalya and others to stand for the FAZ presidency and other positions in the FAZ elections that were scheduled for 28th March 2020 and in which Kalusha was barred from standing. Currently, two main issues, the Integrity Test and the need for residence in Zambia, have put paid to Kalusha’s ambitions to be FAZ president again as his nomination and application came a cropper. So you would expect that these two would be targeted for amendment ahead of the EGM.

Now any constitutional changes have to have the blessings of FIFA. Can FIFA approve a FAZ constitution without an integrity test? Fat chance. Can they approve a constitution that affects elections that are already going on and already endorsed and approved by FIFA? Touche! Alternatively, you would think that Kalusha could make the EGM act like an appeals body for his disqualification. Unfortunately, it doesn’t work that way. The FAZ Council doesn’t work retrospectively except in matters of ratifications which are already itemized under its powers. Even the disciplinary matters like Kashala’s – which is an agenda item at the elective AGM – are discussed there and then. So the FAZ Council sitting at an EGM or AGM can’t entertain an appeal. But the FAZ Council can allow change of rules and constitutions so that there are changes during the 2024 elections. For Kalusha it is still CAS that can listen to his appeal. And this is why we should not have the EGM but wait for The CAS to make its final ruling.

And then there is the 2/3 majority threshold needed in voting for the changes to the constitution. Can this be met? Are people sure that 2/3 of clubs and other FAZ Council members want changes to the constitution when they unanimously voted for the constitution last year in 2019 and again unanimously voted for the integrity test and the FAZ Electoral Process of 2020?

COURT CASES

Lastly, in his national address, the minister reported that part of the reconciliation process involves dropping of all court cases again FAZ and that the cases shall be withdrawn to allow for this reconciliation process. I am not sure whether the dropping of the cases has already been done or it will be done only in case of the EGM being called or what. The idea to avoid courts is definitely a positive move. I have always supported that. However, you will be shocked to know that I personally feel that it is better to let the court cases continue until they conclude. This is so that decisions that are made are final and we don’t have to second guess. Further, this will set precedents so that in future such things don’t repeat themselves. It will be nice to see how the courts interpret Article 10 (c) and (d) which say that an entity that applies to be a member of FAZ shall apply in writing and its application must be accompanied by mandatory declarations that “it will always comply with the Statutes, regulations and decisions of FAZ, FIFA and CAF and ensure that these are also respected by its own members, clubs, officials and players” and that “it will not take matters of interpretation and application of the FIFA, the CAF and FAZ statutes, regulations, decisions and directives to Ordinary Courts, unless the FIFA, the CAF, the FAZ regulations, or binding national law, provide for or stipulate recourse to Ordinary Courts”. It is important to see how members who have made this declaration can then go before the courts. If they argue they are not members and never made this declaration, it will be good to see how they show that they have loci standing to bring the actions before the courts in matters where they are not parties to. We have potential case law here! On this issue, I submit that since we have time, let the court cases conclude. If we rush it and patch up the work, the structure will be weak. We can’t paper over cracks and think the house will stand.

Talking of courts, it would have carried weight if the court cases were withdrawn first as a sign of goodwill before the announcement was made. If the actions in this whole process are based on pre-conditions, then we won’t manage to solve decades-old problems. Like I said these problems have survived 3 presidents. The FAZ patron is the fourth. So it’s not possible for the minister to resolve these issues in a single meeting. And the EGM won’t be the panacea that we think it is.

CONCLUSION

I took a lot of time before writing about this issue. Usually, I deliberately delay allowing my thoughts to settle and leave no room to emotions and to make sure I am not missing anything egregious that needed penning down. This is the reason why I even tend to be verbose. I don’t want to be misunderstood.

I have come to the end for now. At this stage, you should be either convinced why the EGM is not necessary and is not urgent. Otherwise, you should have a strong argument to show why I am wrong. But if you feel any anger towards me, it is only because you are so disappointed that I have been right most of the time and I am saying things that are at variance to your wishes. In that case, don’t get annoyed. I have not insulted Kamanga, The Icon or the Minister. I have not disrespected the minister or Kamanga and Kalusha. I am just standing on my points and sometimes I do it bluntly, candidly and I am not beating about the bush.

When I return later today or tomorrow, I will address the letter the minister wrote to FIFA, which I am attaching, then address the response by FIFA, tackle the various statements issued by FAZ in the press in the last week and then we can move to another issue which is about FIFA and CAF and what the chances are for Zambia to have a person sitting there anytime soon.