Executive recklessness and interference in Sports
Alexis De Tocqueville the 18th Century French Philosopher, Thinker and Lawyer in his brilliant treatise and seminal work Democracy in America described Mexico's Federalism as not having the same sense and spirit of the Federalism in the United States. Perhaps Tocqueville had Nigeria in mind, as his description is not far lost on Nigeria. Our government does have not the sense and spirit of in its practise of any form of government let alone the intricate nuances of federalism as espoused by Tocqueville. Whatever pretensions or delusions of grandeur we may have as a so called 'giant' of Africa or window dressing and prop disguised as invitations at G8 conferences, the art of governance in Nigeria can be compared to that practised in a banana republic. The idea that you wake up one morning and order a ban by executive fiat is the height of executive recklessness at best and for all this government's utterances on rule of law and good governance, time and time again this government has shown that its words speak better than its actions. In short this government only governs through rhetoric and whenever a situation calls for it to talk the talk and walk the walk, it comes out 'talk the talk only'. The recent directive widely published on the internet announced on 30 June 2010 through President Jonathan Goodluck Media Adviser Ima Niboro withdrawing the country's football team from international football competitions for two years to enable the country put its house can aptly be defined as an exercise in futility, illegal, unconstitutional, ultra vires, null and void ab initio (from the beginning).
From a strictly legal point of view President Jonathan Goodluck's directive and order is contrary to the powers granted to him in the Constitution. It portends a dangerous situation that a directive by the government is announced through the media, not published in the national gazette or sanctioned by Nigeria's laws. I have noted with interest the comments from learned colleagues including senior members of the bar and I am somewhat puzzled that only a few have grasped the seriousness of the President's actions. It is said that the law does not act in vain. Similarly acts of public officials no matter their position should be and must be governed by existing laws not laws enacted by whim. Frankly speaking the President in exercising his powers in this regard has been badly advised by his aides including the members of the so-called Presidential Task Force on the 2012 World Cup, the Attorney General and Minister of Justice and his Minister of Sports. This is no doubt a gambler's ad populum decision taken to play to the public gallery which if care is not taken may come back to haunt us and fraught with legal and cost implications to the NFF and the government.
While much has been said within the last few days about the non interference in the internal affairs of domestic football associations by the International Federation of Association Football (FIFA) as set out in its Statutes Regulations Governing the Application of the Statutes Standing Orders of the Congress August 2009 edition Article 17 Independence of Members and their bodies provides, '
1. Each Member shall manage its affairs independently and with no influence
from third parties.
2. A Member's bodies shall be either elected or appointed in that Association.
A Member's statutes shall provide for a procedure that guarantees the
complete independence of the election or appointment.
3. Any Member's bodies that have not been elected or appointed in
compliance with the provisions of par. 2, even on an interim basis, shall not be
recognised by FIFA.
4. Decisions passed by bodies that have not been elected or appointed in
compliance with par. 2 shall not be recognised by FIFA. It is worth nothing that the FIFA statutes in respect of the President's directions are nothing but a distraction. I shall dwell on the implications of the FIFA statutes later in this discourse. Rather than placing reliance on the FIFA statutes the relevant primary applicable law in this instance is the Constitution (CFRN 1999). The fact of the matter is that the actions of the President are incompatible with the provisions of the Section 1 of CFRN 1999, which provides that the governance of Nigeria shall be in accordance with the provisions of the Constitution and that any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void. For the avoidance of doubt any other law includes directives and orders enacted by the president. The President is a creation of statute; he cannot railroad directives just because he is not pleased with the outcomes of our national sporting team. The era of executive branch of government acting with impunity is long gone. The King is always right is doctrine that is dated hence the reason it is not provided for in our constitutional democracy and much as I despise the cabal governing the Nigerian Football Federation (NFF), the fact of the matter is that the President under our system is accountable in law in the exercise of his functions.
Perhaps it is said that the provisions of CFRN 1999 Chapter II titled Fundamental Objectives and directive Principles of State Policy support the Presidential directive. Chapter II outlined inter alia states in Sections 17 (1) on Social objectives The State social order is founded on ideals of Freedom, Equality and Justice, 18 (1) on Educational objectives. Government shall direct its policy towards ensuring that there are equal and adequate educational opportunities at all levels and 19 on foreign objectives (a) promotion and protection of the national interest, (b) promotion of African integration and support for African unity; (c) promotion of international co-operation for the consolidation of universal peace and mutual respect among all nations and elimination of discrimination in all its manifestations. These are the relevant provisions that relate to the President's directive however these provisions either in express or implied terms do not give the President carte blanche powers to withdraw any sporting team of the federation from international events for two years.
The actions of the government are specifically a flagrant and clear breach of Section 19 (d) of CFRN 1999 respect for international law and treaty obligations as well as the seeking of settlement of international disputes by negotiation, mediation, conciliation, arbitration and adjudication, generally a violation of the provisions of Chapter II CFRN 1999 and the African Charter on Human and Peoples' Rights. Professional Footballers much as we may express our dissatisfaction with their performance and conduct in their chosen endeavour, the government has no legal right to exercise actions that could be deemed as a restraint on their trade and adversely impact their right to work and earn a living. The government has no compelling or indeed overriding national and public interest in hindering professionals from fulfilling their contractual obligations. It is settled in law that a restraint on an individual right to fulfil their contract obligation is illegal and unreasonable. Nigerian Professional footballers that ply their trade in different countries of the world are also to a large extent dependent on the earnings derived from commercial endorsements based on the number of appearances playing for the national team. Article 15 of the African Charter provides that, 'every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work'. It is respectfully submitted that the Presidential ban is also contrary to Section 36 CFRN 1999 Right to Fair Hearing, reading this CFRN 1999 provisions in conjunction with Article 15 of the African Charter.
The Presidential ban is ultra vires as it is decision that has been taken beyond the powers of the office of the President. The government has not given any valid reasons for taking this decision and it is settled by the courts that the validity of decisions made by the executive is subject to challenge in the courts if the decision is unreasonable, unfair and ultra vires. The Supreme Court held in Timothy Adeilo Adefulu & 12 Others V Bello Oyesile & 5 Others (1989) 12 NILR 8 that the decision of government that is irregular, unlawful and not in accordance with the law is null and void ab initio and that any purported appointment following such action is erroneous and deemed never to have occurred. Similarly the learned Mahmud Mohammed J.S.C. in the case of Senator Rashidi Adewolu Ladoja v Independent National Electoral Commission & Ors (2007) 7 NILR 136 adopting this classic position of the law in this regard stated in his reasoning that, 'it is settled law, that when an act is declared null and void, the position is that from the angle of the law, the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed'. The government has not acted in accordance with the law and there is nothing in the constitution and statutory law that gives the president the authority to act in such circumstances. Section 46 (1) and (2) of CFRN 1999 provides for an aggrieved party to institute writs including the prerogative writ of mandamus in the High Court to compel the government to reverse its decision as on its face the government are in breach of the provisions of Chapter IV Fundamental Rights of CFRN 1999. Footballers affected by the President's actions should be advised and indeed would be justified in seeking recourse in the High Courts in Nigeria as provided for in Section 46 of CFRN 1999.
It is often said that the government should not intervene in sports however where there are compelling public and national interest at stake then such intervention is deemed reasonable, fair and justifiable. The sporting boycott of the apartheid regime in the 70s and 80s is universally adjudged to have been a successful. Similarly Israel withdrawal of its contingent from the 1974 Munich Olympic games following the tragic murder of 11 Israeli athletes and coaches, and a West German police officer by Palestine extremists was justified given the circumstances. The circumstances prevalent in these examples are not prevalent in the case of the ban imposed by the President.
The actions of the government has ramifications for every facet of life on the people it serves and where such actions are taken as a knee jerk reaction to perceived problems unintended consequences invariably would occur. The government has opened itself liable to a pandora's box of multiple legal suits as a consequence of its actions. The NFF as a body corporate and creation of statute namely the Nigeria Football Federation (Amendment) Act has entered into contractual agreements with leading multinational companies in the sportswear and equipment, telecommunications, banking and fast moving consumer goods (FCMG) sectors to sponsor, promote and fund its activities over a specified period of time. The government is naïve if it thinks that these public liability companies who owe it to their shareholders and board of directors to make a profit would just let their investment go down the drain! In fact their directors would be in dereliction of their duties if they do not take action to recover their companies costs and lost profits and revenue from the NFF and the government by instituting legal actions in the courts for breach of contract. The government through its actions has invariably made itself a necessary party joined with the NFF should these companies seek recourse in the courts of law. It is highly unlikely that the courts would rule in the government's favour as the government by its actions has put in jeopardy the NFF's ability to fulfil its contractual obligations. The government ban has effectively ensured that the NFF would not be able to perform its contract to these companies for the next two years and where this is the case then the NFF would be in fundamental and material breach of contract. The breach of contract caused by the reckless act of the government is fundamental and material because the ban on the participation by the national team from international competitions and events effectively shuts out these companies to any legitimate business transactions they were to have with the NFF. At the time the companies entered into these contracts they were unlikely to envisage that their contract with the NFF could be suspended unilaterally and without mutual consent. These companies would be entitled to monetary damages in the courts. A responsible government would not readily and knowingly undertake actions that could result in it is paying out millions of its hard earned cash following a brazen act by the President that could otherwise have been avoided.
International Law Implications
Section 19 (d) of CFRN 1999 cited states that the government has to abide by international law as well as its treaty obligations and seek the settlement of international disputes by alternative dispute resolution. In case the government has a short memory, Nigeria is founding member of the World Trade Organisation (WTO), which has established core principles for governing international trade, these principles are namely Non-Discrimination, Reciprocity, Binding and enforceable commitments, Transparency and Safety valves. Football today is a global commercial business and under the WTO rules services classification list the business of football is recognised as Recreational, Cultural and Sporting Services including sports and recreational sports event promotion and organization services. There is no valid reason and just cause under the WTO rules for the government's actions. In fact the government's actions are a violation of these principles as well its constitutional provisions of honouring its foreign objectives pursuant to Section 19 (d) of CFRN 1999. Member states could in theory refer the action of the government as a breach of the WTO principles asserting that trade by companies trading in their countries have been adversely affected by the ban on the national football team.
The government's action portrays a negative and bad image to the outside world. In fact we are perceived as a laughing stock by observers in the western media that the outcome of an issue as 'trivial' as the fate of National football team should be occasioned by such drastic, decisive and punitive measures when there are other pressing areas of national and public interest that the government has been found completely wanting and failing to act. I do not seek to address in this discourse the need for government action in the areas of corruption, electricity supply, road, the Niger Delta, Oil pollution, conduct of elections and Police reform to mention but a few but the challenges and need for the government to deal with these are common knowledge. The violation of WTO rules by the government is intricately linked to having an adverse impact on foreign direct investment (FDI) in Nigeria. The question is this, is it likely that the foreign businesses in the sectors I mentioned earlier would be attracted to investing or doing business in Nigeria? With actions like this the government does not create or promote an enabling environment for the foreign business to operate in Nigeria. This is the reason FDI in Nigeria is very low and our institutions are structurally weak because the decision of one man acting alone can scupper and impact the success of FDI in the country.
Perceived independence of FIFA's members
At this juncture it is imperative to consider the provisions of the FIFA statutes earlier cited particularly the so-called Independence of members clause provided for in its Article 17. However stricto senso this has not always been the case as one only has to look at the wider context of football administration in Nigeria and indeed in most countries. In Nigeria can it be the said that the government is a third party in the administration of football? Certainly not is my response. The NFF as I stated earlier is a creation of statute namely Nigeria Football Federation (Amendment) Act and the Nigeria Football Federation (NFF) 2009 Statutes recognises the role of the government in its administration, Article 10 on Admission states that the members of NFF are: g) the agency of the Government of Nigeria in charge of Sports and Article 76 on Revenue which states that the revenue of NFF arises specifically from:
a) all money as may be granted to the NFF by the Federal Government of Nigeria.
In our case, the role of the government in the administration of the NFF is two fold one as a member of the NFF and secondly as provider of funds disbursed through its agencies particularly the Nigeria Sports Commission (NSC) and the Ministry of Sports being the agency defined in Article 10 of the NFF statutes. It is virtually impossible for the NFF administer its affairs without the direct intervention and supervision of the government as there is close nexus between the two bodies and to say that the government's role is interference irrespective of the degree of the so called interference of a third party is a wrong application of FIFA's Article 17. The question in issue is whether that interference is prejudicial to the genuine development of football in Nigeria. In the United Kingdom (UK), the Department of Works and Pensions (DWP) has a direct influence on the administration of football particularly in the issuing of work permits. In brief, work permits for overseas players in the UK are issued on a number of conditions such as the fact that the applicant should have played 75% of his country's national team matches within the last two years and also that the applicant's country should be in the top 70 countries in the current FIFA ranking. The DWP panel that adjudicates appeals against the decision not to issue the work permit comprises mainly of representatives from the English Football Association (the FA), English Premier League (EPL), Professional Footballers' Association (PFA) and 'independent football experts' usually former players. This is a structure that is completely lacking in Nigeria and in issuing the presidential ban the government has obviously not consulted with the relevant stakeholders save for the parties I mentioned at the start of this discourse. It is indicative of our structural football set up in Nigeria that there is no representative body for footballers similar to the English PFA. Another implication of the Presidential ban, which the government has not foreseen, is how difficult it may be for Nigerian footballers to obtain a work permit in the UK and a host of other countries with professional leagues that have similar work permit rules to that of the UK. Apart from the fact that the presidential ban would hinder the individual development of Nigerian footballers in plying there trade in countries with work permit rules, it is also likely that this would impact coaching and refereeing in the game as well. In fact FIFA's communications director Nicolas Maingo states that, "a suspension goes beyond the suspension of the national teams. It also freezes financial help and no referees can participate in international competition." Footballers unable to obtain work permits could rely on the on their claim against the government on the principles established in the restraint of trade rule cited earlier in this discourse.
Government decisions made in haste are often like bad laws without scrutiny and without thinking through the wider implications of the presidential ban. FIFA in media reports quoted on 2 July have rightly declared and issued an ultimatum to the Federal Government to reverse its decision or have its membership of FIFA suspended within 48 hours. FIFA Secretary-General Jerome Valcke said, 'If the Nigerian government is not moving back, we will have to suspend Nigeria." Furthermore FIFA has indicated that the 11 member Caretaker Committee that the government has named to restructure the administration of football in Nigeria would not be recognised by FIFA. FIFA as a multilateral independent sporting organisation is perfectly within its rights to do this. Perhaps what is surprising is that individuals like journalist Mitchell Obi, former internationals Austin 'Jay Jay' Okocha, Samson Siasia, Patrick Ekeji, former Minister of Sports Sani Ndanusa, Mrs. Jamila Buhari the first female Nigerian FIFA badged referee, two lawyers in Seyi Akinwummi and a representative from the office of the Attorney General and Minister, all with impeccable credentials, expertise and knowledge of football have allowed themselves to be part of the government's charade and unlawful committee. The position of FIFA is also supported under in the cases of Adefulu and Ladoja cited earlier. Indeed there exists precedent within FIFA rules of sanctions against erring countries as evidenced in the suspension in recent years of Tunisia and Kenya whose governments had acted in a similar way.
I find it strange that the government, which had a number of options available to act in a perfectly legal manner failed to adopt a right approach in this matter. It is common knowledge that the present executive of the NFF has condoned corrupt practices ranging from the endemic falsification of the ages of players in age grade competitions, the negligent loss of public funds kept in its office safe, the absence of any form of audited accounts for the hosting of the 2009 Under 17, the 2010 World Cup campaign and the questionable recruitment and selection process of appointing the current National team coach. Despite this government's continual beating of the drum of due process but for some unexplained reason despite serving and former public officials being in charge of the NFF this is not a process that known to the NFF. Questions need to be asked and answered by the present executive of the NFF. The executive branch of government itself is culpable because of its omission to call the executive committee of the NFF to account for how it has managed public funds and the funds in disbursed by FIFA. Also negligent for failing to act is the legislative branch of government through the designated committee of the Senate and House of Representatives in not exercising their powers of scrutiny and oversight to compel the responsible officers of the NFF executive committee to give an account of how they spent public funds. A number of members of the executive committee of the NFF have infamous antecedents in the management of public funds and the current executive Nigerian member of International Football organisations is also known to equally known to have what could be best described as questionable aspects of his integrity and conduct in previous positions of public service. Given the state of football administration in Nigeria the government should have instituted a competent Administrative Tribunal of Inquiry pursuant to the Tribunals of Inquiry Act with the terms of reference to review within a period of three months the administration and finances of the NFF, to make recommendations accordingly and where there is evidence of unlawful practices including but not limited to abuse of office, misappropriation of funds and other corrupt practices these should be referred upon the submission of the Tribunal's findings to the requisite Nigerian anti-graft agencies namely the Economic and Financials Crimes Commission (EFCC) and the Independent Corrupt Practices Commission (ICPC). A High Court Judge should chair this tribunal with members drawn from leading experts in the fields of Sports Law, Public Sports Administration and the Sports media.
The government has no choice but rescind its ban forthwith. Perhaps this is a wake up call for the government to ensure that the administration of football like any other industry should be run by stakeholders with expertise, competence and knowledge of the beautiful game such as former players, coaches, referees and experts with a distinguished history of service in the sport and their respective careers. The era of amateurs and impostors in charge of administering football in Nigeria is long gone.
*Omoba Oladele Osinuga Esq. an International Criminal Lawyer works in the Mission of a leading International Governmental Organisation in Europe writes from Dagenham Essex UK.