* FAM is an organisation that is associational in nature and not formed out of a Parliamentary Act
* All association football-related matters in Malawi are in the purview of FAM and its affiliates
* That ACB was able to proceed to halt the elections is an anomaly
* It should not have happened and should never happen in football
By Duncan Mlanjira
While Football Association of Malawi (FAM) has adhered to the order made by the Anti-Corruption Bureau (ACB) that it should administer fresh regional football associations elections, the football governing body faults the ACB for its intervention that was brought to its attention by interested football officials.
At its Executive Committee emergency meeting held virtually on February 17, FAM deliberated the ACB report and sought a legal opinion.
In a statement, FAM quotes a court ruling in Government Employees Medical Scheme, Gunvant Goolab and Marthinus Johannes Kruger vs The Public Protector of the Republic of South Africa, Joel Moagl Tumelo Bennedict Ngwato, The Registrar of Medical Schemes and the Council of Medical Schemes  ZASCA 111, which stated that “organisations that are associational in nature and not formed out of a Parliamentary Act should be governed by internal rules”.
“FAM and its affiliates fall within these associations as they are bodies not formed by an Act of Parliament,” says the statement signed by FAM General Secretary Alfred Gunda and copied to Secretary General for world football governing body FIFA; Malawi National Council of Sports and all the three region football association.
“From the above, all association football-related matters in Malawi are in the purview of the Football Association of Malawi and its affiliates.
“That ACB was able to proceed to halt elections for Regional Football Associations is an anomaly that should not have happened and should never happen in football.
“FAM understands that ACB proceeded on the premise that it has discretion to issue Restriction Notices under section 23 of the Corrupt Practices Act. Discretion is only exercisable where there is jurisdiction.
“Much as we appreciate the investigative role of the ACB in any alleged or suspected corrupt practice, FAM is of the view that ACB does not have jurisdiction over football matters apart from investigating whether there are corrupt practices and bringing to book through the court of law those who have breached the Corrupt practices Act.”
FAM faults the ACB’s observations in the letter issued on February 5, saying the findings do not have details, supporting evidence and particulars of the alleged forgery or malpractices in respect to the nomination process.
FAM further says the ACB should have expressly stated the district football associations which did not convene meetings, the current members of the regional football association who influenced the nomination process and also the particular members who disowned their signatures on the nomination forms as well as the members who forged the nomination forms.
“FAM believes that the information could have assisted FAM to make an informed decision in respect of this matter and possible way forward.
“Further, FAM has noted that one of the findings is that nomination forms were forged. Forgery is a serious criminal offence and it is only a court of law that can make a conclusive determination on the issue. FAM was therefore expecting more details from ACB regarding this serious offence.”
The football governing body further contends that the ACB findings do not specify the breach to the specific provisions of the Regional Football Association Statutes and also the District Football Association Statutes.
As regards to the absence of a ‘corrupt practice’ finding or a finding of breach of any district football associations and regional football association’s statutes and further the absence of details showing the gravity of the malpractices, FAM “is failing to understand the basis for the recommendation that nominations that were conducted in October 2020 should be nullified and fresh nominations be conducted”.
“Further, FAM appreciates the mandate and role of ACB in the fight against corruption in the country, which role gives the ACB the right to carry out an investigation on any alleged or suspected corrupt practice or offence under the Corrupt Practices Act.
“However, FAM believes that in the exercise of its investigative role, ACB ought to take cognisance of the Football Associations operations, the governing statutes, the football structures and how the associations report to each other.
“This is the case since the game of football is well governed and controlled by FIFA Rules and Regulations and also Association Statutes.”
It further says this is also the case for similar organizations such as churches, clubs, associations and professional bodies where ACB doesn’t have jurisdiction to interrogate how these organizations conduct their elections let alone issue directives on how these organizations should conduct their elections and any day to day business.
“The same principle applies to FAM as an association and all its affiliates. It is against this background that FAM submits that the ACB’s exercise of power to stop an election and further nullify the nomination process that is governed by clear internal rules is ultra vires and a complete interference by a Government Institution (in this case ACB) into football matters which is against FIFA statutes particularly Article 17 of FIFA Constitution which clearly states that members of FIFA shall manage its affairs independently and with no influence from third parties.
“FAM is cognisance of the fact that the law abhors a vacuum and that mandates of office bearers for Regional Football Associations have long expired. This has a huge bearing on the football calendar as it would be difficult or even next to impossible to run regional leagues if the status quo continues.
“FAM will, therefore, proceed to guide the Regional Football Associations to conduct fresh nominations and elections thereafter following due process under their governing statutes.”
FAM also takes note of the ACB’s recommendation that together with Sports Council it should oversee the nomination process and not regional committee members.
FAM says it will be that in cognizance of Section 10 (4) of the Corrupt Practices Act, saying as an organization, it has the right to follow ACB recommendations or explain why a recommendation will not be followed.
“FAM would like to bring to your attention that under the Malawi National Council of Sports (MNSC) Act, main function is to develop, promote, encourage and control all forms of sport in Malawi on a national basis.
“Further, FAM is an affiliate of MNCS hence in the football structure FAM has mandate over Regional Football Associations affairs as its affiliate which trickles down to the Regional Football Associations having mandate over the District Football Associations as their affiliates.
“In this football structure, it will be absurd for MNCS to regulate and participate in the electoral process for Regional Football Associations and even worse nominations done by District Football Associations.
“Elections for Regional Football Associations are governed by the associations’ respective Statutes. A reading of the three Statutes does not provide an instance where the MNCS is permitted to participate in the electoral process.
“The only way MNCS can participate in the respective electoral processes is where the Statutes are amended or where MNCS is invited as an observer. However, with the current statutes, MNCS has no mandate or right to participate in the electoral process. FAM will where necessary, proceed to engage MNCS to play a role of an observer in the elections.”
FAM says in the nearest future — in consultations with its affiliates — it shall proceed to review the regional football associations statutes i.e. electoral guidelines and processes. However, as per its own statutes and that of its affiliates, this is an internal process hence FAM shall proceed to carry out the exercise without the involvement of a third party i.e. MNCS or ACB as recommended in the letter.
Thus FAM — as per the requirements of section 10 (4) of the Corrupt Practices Act, FAM will proceed to provide guidance to its regional football associations in the conduct of the election by advising its affiliate to proceed with fresh nominations.
“And as per the provisions of their statutes, FAM as a returning officer shall receive all the fresh nominations within a period of 10 days and to proceed to act as a returning officer and oversee the election process and if need be engaging MMCS as an observer.
“In the nearest future, FAM shall engage its affiliates to formulate an electoral code to regulate the Regional Football Associations elections. This process shall happen without involvement of third parties,” concludes the statement.