Athletics Kenya officials led by President Jackson Tuwei have been dealt a blow after the High Court ordered them to vacate office with immediate effect.
Milimani High Court Justice Lawrence Mugambi issued the orders after 10 petitioners challenged the process undertaken in revising the Athletics Kenya Constitution.
"An order be and is hereby issued that by dint Sections 46 and 49 of the Sports Act and the Second Schedule thereof, the officials and Executive Committee of the 1st respondent (Tuwei), who have been in office office for a cumulative period of eight years since the coming into force of the Sports Act, have served their terms in full and must forthwith vacate office. They shall be ineligible to contest for any position in the organisation," the order reads.
The petitioners included Moses Tanui, Julius Korir, Julius Kariuki, Christopher Kosgei, Wilson Boit, Susan Sirma, Leah Malot, Nixona Kiprotich, Hosea Logo and Mary Chemweno.
They said Athletics Kenya, through Tuwei in November 2015, begun the process of reviewing the body's Constitution so that its provisions could be compliant with the Constitution of Kenya and the Sports Act.
On April 27, 2016, during an Annual General Meeting (AGM), the amended Constitution was approved.
The court heard that the former Constitution had been enacted under the Societies Act prior to the enactment of the Sports Act, 2013.
The petitioners argued that the decision taken to amend Athletics Kenya Constitution was null and void as it was in breach of the Constitution and the Sports Act.
They asserted that for the guidelines to comply with the laws, amending it was not the solution, instead a new Constitution ought to have been enacted.
They said the Constitution, having been enacted under the Societies Act could not be amended to bring into line with the Sports Act.
They maintained that under Sections 46 and 49 of the Sports Act as read together with Articles 10, 36 and 81 of the Kenya Constitution, the organisation's members and leaders registered and elected under the Societies Act, had no right or power to amend AK's Constitution in line with Section 46 of the Sports Act.
They contended that by initiating the process, Tuwei violated the rights protected under Articles 10, 21, 27, 28, 35, 36, 47 and 50 of the Constitution having regard to Section 46(6) of the Sports Act, which requires that all national sports organisations registered under the Act be open to the public in terms of leadership, activities and membership.
In response, Tuwei told the court that when the amendment process started, the organisation's Executive Committee appointed a constitutional review subcommittee.
The subcommittee was to facilitate the reception of the views and proposals on the intended amendments.
He added that in view of their stakeholders, they issued notices to all branches to submit their views on the process of amendment.
He also said that through an advertisement in the print media, Athletics Kenya invited its members, athletes and stakeholders to submit their views and comments on the same.
"The final draft was prepared after all the views had been received and considered," the court heard.
Athletics Kenya was sued alongside Sports Cabinet Secretary, Registrar of Sports, Registrar of Societies and the Attorney General.
The respondents refuted the claims in the petition, maintaining that public participation was conducted as a key component of the constitutional review process that was undertaken to amend the AK Constitution.
After going through the submissions, Justice Mugambi on Thursday further ordered that;
"Given that the act of registration confers the 1st Respondent monopolistic status as the only registered National Sports Organisation in the athletics discipline by dint of Section 47 (1) of the Sports Act, a declaration be and is hereby issued that the 1st Respondent has a duty to the public to conduct its affairs having due regard to public interest and is thus enjoined by Article 10 (2) of the Constitution and Section 46 (6) of the Sports Act to hold consultation with the public and demonstrably give due consideration to concerns raised by the public while formulating or reviewing its policy documents."
He also directed Athletics Kenya to carry out a further review of its Constitution adopted and or ratified on April 27, 2016, within the next 90 days effective March 7, 2024.
He said the same should be done in consideration to public views gathered during its last review for purposes of enhancing inclusivity, democratic representation of various players in the athletics discipline and 1st Respondent’s top decision-making organ and to guarantee enhanced transparency in areas of concern raised by the public and stakeholders.
