Fifa cannot go unchallenged

Saidi Sangula
I READ with shock the letter written by one Markus Kattner the Deputy Secretary General of FIFA, to ZIFA President Cuthbert Dube on May 18 2015.

The letter was a clear and deliberate misreading of a Constitution FIFA are on record to have painstakingly gone through when it was being crafted and approved.

Kattner says “we have taken note of the different events which led to the current situation and we understand that the ZIFA councillors, apparently made of 29 ZIFA members, have mischaracterised the opinion of our representative during his recent mission who clearly stated that the process should be guided by the ZIFA Constitution” (my emphasis).

Nothing could have been more correct and, indeed, as far as I know this is how the Councillors had taken the opinion of the FIFA representative to mean.

I argue that the meeting was held in terms of ZIFA Constitution as guided by FIFA and to hold otherwise can only be interpreted as mischievous.

On March 16, 2015, 29 ZIFA Councillors wrote to ZIFA chief executive, Jonathan Mashingaidze, requesting him to convene an Extra-Ordinary meeting to discuss certain issues related to the running of the game.

The CEO replied that their issues would be addressed in the ZIFA President’s Activity report at the Annual General Meeting set for April 27, 2015, and in any event the Association could not afford two meetings in a space of 60 days because of financial constraints.

The excuse sounded plausible to any fair-minded person and the Councillors could only but understand.

After all, April 27 would arrive and was not too far away.

No sooner had the ink even dried on the letter was another one crafted to the effect that the Annual General Meeting was now to be held on June 27, 2015.

The reasons, thereof, are not material but what is key is that the Councillors clearly felt cheated and interpreted the deferment to mean that the Board and the Secretariat were fearful of the Councillors.

It was no secret that the word on the street was that guns were out for Dube’s Board and the Secretariat.

The only logical thing was to push this meeting, in my view until after the pleasures of Zurich on May 29, 2015.

The Councillors then called for a meeting on May 16, 2015. What happened there is common knowledge.

What I want to excite the readers about is FIFA’s interpretation of the ZIFA Constitution and their clearly incorrect view that the meeting was null and void.

It is instructive to look at the relevant provision of the Constitution.

Section 28 of the said constitution provides that

“1. The Executive Committee may convene an Extra-Ordinary meeting at any time.

2. The Executive Committee shall convene an Extra-Ordinary Congress if one-third of the members of ZIFA make such a request in writing. The request shall specify the items for the agenda. An Extra-Ordinary Congress shall be held within three months of receipt of the request. If an Extra-Ordinary congress is not convened, the members who requested it may convene the congress themselves. As a last resort, the members may request assistance from CAF and FIFA.

3. The members shall be notified of the place, date and agenda at least 14 days before the date of an Extra-Ordinary Congress.

4. When an Extra-Ordinary Congress is convened on the initiative of the Executive Committee, it must draw up the agenda. When an Extra-Ordinary Congress is convened upon the request of the members, the agenda must contain the points raised by those members.

5. The agenda of an Extra-Ordinary Congress may not be altered.”

This is the full provisions of the contentious Article 28 of the Constitution of ZIFA.

Kattner’s opinion (and it is simply an opinion) was that the Council meeting of May 16, 2015 was null and void for want of the meeting being convened by the executive committee.

He says “ [A]s such and according to the Article 28 of the Constitution, the Executive Committee of ZIFA has to convene an extraordinary Congress within three months if one third of the members asks for it. Since the request was made on the 16th of March 2015, the three months’ time-lapse has not been completed yet, the deadline being 16th June 2015. In addition, the Extra-Ordinary Congress should have been convened by the Secretary General and chaired by the President which was not the case.”

In making that statement he chose to be oblivious to the fact that when the Councillors decided to hold the meeting on May 16, 2015 it was because the Executive Committee had refused to hold the meeting within the three months prescribed by the Constitution.

The AGM, where the issues raised by the Councillors were going to be discussed, among others, had been pushed to June 27, 2015, a date falling outside the three-month period.

The Councillors did not need to wait for June 16, 2015 in the clear face of such refusal.

They had to call the meeting as provided by Article 28(2) which they did and May 16, 2015 fell well within the three months.

My reading of the provision says the meeting could be held on any day within 90 days of the notice provided everything else is complied with.

Those of us who have learnt interpretation of statutes at some school will know that shall in most cases means that doing something or desisting from doing is mandatory unless the context shows otherwise or interpreting it as such would lead to a glaring absurdity.

It is not the case in this instance.

The Executive Committee clearly refused or failed to convene the meeting within 90 days and that refusal by the Executive Committee then entitled the Councillors to exercise the option to convene the meeting themselves.

I have struggled to find where it says “by the 90th day”.

In fact it says “within” which means any time before the expiry of the 90 days.

There is no provision in the Constitution that an Extra-Ordinary Congress convened by the Councillors must of necessity be chaired by the President as in the FIFA Statutes neither is there a provision that says it must in all cases be convened by the Secretary General as stated by Kattner.

To hold, as Kattner did, is not only wrong but appears to me very mischievous in the clear face of the provision of the Constitution.

It cannot go unchallenged.

He cannot seek to rewrite our Constitution as he has no mandate to do that. He is clearly misinterpreting it for selfish ends which do not promote our football in Zimbabwe.

It’s either that or the letter was written for him from some quarters in football in Zimbabwe and all he did was put it on a FIFA letterhead.

How else does one explain his use of the word “so-called” when referring to legitimate ZIFA Councillors whose identity and membership to ZIFA was never doubted by ZIFA itself since March 2014?

I hold no brief for anyone but there is no doubt in my mind that after May 16, 2015, Dube, Hara and Chihuri are no longer bona-fide members of the ZIFA Board after their mandate was legally revoked.

I am convinced that in their hearts of hearts they know this.

It is a lame argument that if it was the Councillors’ intention to revoke the mandate the names of the persons and the issue itself should have been an agenda item at the Council meeting.

Article 22(m) is very clear on that.

That argument will only prevail if the Congress was dismissing them.

They were not being dismissed but had their mandate to lead the ZIFA family revoked.

Dismissal is in terms of Article 22(l) whereas revocation is in terms of 22(m). I did not write the Constitution, they did.

Those are two distinct provisions.

I, therefore, believe that the honourable and decent thing is for Dube, Hara, Chihuri and perhaps the whole Board to graciously depart from their seats as it is clear they lost the confidence of the Council to lead.

Waiting for June 16 is only delaying the inevitable unless something catastrophic happens before then.

The Councillors have spoken and they should be listened to. It is the decent thing to do. They gave them the mandate which they have revoked.

I have said June 16, 2015 should put an end to this saga unless something earth-shattering happens.

To that end there is some correspondence being alleged to have been generated from the CEO’s office to the effect that a roll call of members who attended the meeting of May 16, 2015 was being compiled.

I can only hope this is not with sinister motives and if it is, FIFA need to step in to protect the “noblemen of May 16” from persecution and depletion of Council before June 16, 2015.

They owe it to our football-loving nation and to the Councillors themselves who have been civil enough to accept this clearly flawed decision by FIFA.

If they do not I will be justified in losing faith in the institution called FIFA and our ability to adhere to constitutionalism as the nation of football.

One will be justified in approaching the Courts for a declaration that the meeting was constitutional and that the “deposed” members no longer have the mandate to lead football.

It remains to be seen whether after he chairs the meeting the legality of that meeting will not be an issue with some people whatever FIFA says.

I wait to see.

Saidi Sangula is a lawyer who has worked in various structures of Zimbabwe football