Home / ATHLETICS / The AFN CASE: A CASE BETWEEN THE LAW AND EMOTIONS

The AFN CASE: A CASE BETWEEN THE LAW AND EMOTIONS

By Temitope Idowu

In light of recent happenings, we will like to simplify and breakdown the court judgment for the Ibrahim Shehu Gusau VS Hon. Minister of Youth and Sports & 3 others.

THE GENESIS

On the 3rd of December, 2019, some members on the board of the Athletics Federation of Nigeria (AFN) called a meeting and supposedly suspended Hon. Engr. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS from his position as president of the AFN and Hon.Olamide George was appointed as the acting president of the Federation.

At another meeting of board members held on the 23rd of January 2020, the suspension of Hon. Engr. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS was upgraded to impeachment and Hon. Olamide George’s position was upgraded to substantive president of the Federation.

The actions of these members along with the perceived instigation by the Federal Ministry of Youths and Sports Development spurred Hon. Engr. Shehu-Gusau to approach the Court of the land seeking the lawfulness of the acts.

In delivering judgment, Hon. Justice A.I. Chikere of the Federal High Court 3, Abuja Division, made reference to the 2017 International Association of Athletics Federations (IAAF) Constitution, the 2017 AFN Constitution and the 2017 Code of Governance which will be used here.

THE 2017 IAAF CONSTITUTION

The IAAF now known as the World Athletics (WA) is an association of the Member Federations.

Article 6 and 85 of the IAAF 2017 Constitution defines its members: “The members of the IAAF are the Member Federations.

Article 84.2 of the IAAF Constitution states:

“The dispute or difference referred to in Article 84.1 means those between:

a. Member Federations;

b. a Member Federation or Member Federations and an Area Association;
c. Area Associations;
d. a Member Federation or Member Federations and the IAAF; or
e. an Area Association or Area Associations and the IAAF”

Article 7 of the IAAF Disputes and Disciplinary Proceedings Rules 2017 provides thus:

Each member shall incorporate a provision in its constitution that all disputes with another Member or an Area Association shall be referred to the Council. The Council shall determine a procedure for the final adjudication of the dispute depending on the circumstances of the case in question.”

The above citied articles show that the IAAF constitution only binds Member Countries and not individuals (natural persons). The constitution also doesn’t bind individuals or persons within a member country but rather, it binds countries that have been admitted as its members after complying with Article 7 of the IAAF Constitution.

The present case as can be seen is between persons within Nigeria (see further explanation in numbers 3 & 4 of Key Things about the 2017 AFN Constitution below).

 

THE 2017 AFN CONSTITUTION

Article 1 of the Constitution states: “Athletics Federation of Nigeria (AFN) founded in 1944 as one of the National Sports Federation with the statutory mandate to regulate and develop Athletics in Nigeria. It is affiliated to the Confederation of Africa Athletics (CAA) and the International Association of Athletics Federations (IAAF).”

Article 8.2.1 of the Constitution states that: “The AFN Board shall meet at least once every quarter of the year and any time the president will consider it necessary.”

Article 8.2.2 of the Constitution goes further to say:  “The Secretary General under the directive of the President shall circulate notice of meeting and agenda to all Board Members.”

Both decisions of suspension and impeachment of Hon. Engr. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS were done at a Board Meeting called without his notice and contradict Articles 8.2.1 and 8.2.2 of the AFN Constitution.

Article 8.9.2 of the Constitution further states: “In case the position of the President becomes vacant, through resignation or otherwise an extraordinary elective congress will be convened by the secretariat within two months to elect a new President.

By Article 8.9.2, Hon. Olamide George can’t be said to be the president because he wasn’t at any point elected into the office of President.

In the case whether Sunday Adeleye can be removed from his position as the Technical Director (TD), the AFN constitution in Article 8.6.5 states that: “The President is to appoint members of Commissions, Committees or Working Groups that he/she considers necessary for a proper functioning of the AFN.”

Article 8.6.8 of the Constitution further states that: “The President is to appoint the coaches in charge of the technical management of the National teams.

This means that the responsibility to appoint lies with the President and therefore Sunday Adeleye will maintain his position as the Technical Director of the Federation.  

KEY THINGS ABOUT THE 2017 AFN CONSTITUTION

1.  The AFN Constitution 2017 has no provision for Arbitration.

2. Arbitration is usually one of the means of resolving issues between members of the same body. It is also used to resolve issues between persons or organizations bound by an agreement.

3. In the matter that was taken to court by Hon. Engr. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS, arbitration could not have been applied because the Hon. Minister of Youth and Sports and the Ministry are not bound by the provisions of the Federation’s Constitution and so cannot be subjected to arbitration, even if arbitration was provided in the Constitution.

4. Hon. Engr. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS couldn’t go to the Court of Arbitration for Sports because the issue in contention is whether the Ministry had a right to direct or interfere in the administration of the Federation and whether the process adopted by some members of the Board in arriving at their so-called “Suspension” and subsequent “Impeachment” was in consonance with the provisions of the Constitution.  

THE 2017 CODE OF GOVERNANCE

Article 1.1 of the Code of Governance states: “The Federal Ministry of Youth & Sports Development (FMY&SD) has developed a Code of Governance to ensure transparency and accountability in the management and administration of National Sports Federations in Nigeria.”

Article 1.2 of the Code of Governance states: “The National Sports Federations (NSFs) shall each have a set of laws to be known as Statutes or Constitution, which shall define its goals, mandates and modus operandi and shall define, be aligned to the FMY&SD Mission and Vision. It shall also set out the manner in which the business of the said NSF shall be conducted.”

Article 2.1 of the Code of Governance states its many purposes amongst which are;

“i. assist board members, committees and secretariat staff of NSFs in Nigeria to develop and implement a viable system of governance befitting the needs of the respective NSF;

v. apply international best practices.

Articles 1.2 and 2.1 of the Code of Governance then means that since the Athletics Federation of Nigeria (one of the NSFs in Nigeria as stated in Article 1 of the AFN Constitution), have made a Constitution, should be allowed to be governed by its Constitution in line with international best practices.

The Code of Governance though can come into play in situations where there is a vacuum in the Constitution of the AFN but can’t be used to govern the AFN.

The Code of Governance does make room for procedures to follow in case of an impeachment as written in Article 5.3;

i) The impeachment process shall begin by a formal reported case of gross misconduct before the Board.  Thereafter, the Board shall deliberate on the allegation and where the allegation lacks merit, it shall be dismissed.
ii) In the event that the petition has merit, the Board shall set up a disciplinary Committee (the Committee) to investigate the matter.
iii) The said member petitioned shall be availed a written copy of the allegation against him/her in preparation for his/her defense before the Committee.

iv) The Committee upon conclusion of hearing shall immediately present its Report to the Board.  
v) The Board shall consider the Report and where the allegation/s is/are established, the member shall be IMPEACHED accordingly. The FMYSD shall be duly informed of any such decision.

There’s no evidence to show that the above steps were taken before the impeachment of Hon. Engr. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS as the President of the AFN.

JUDGMENT

Going by the Constitution which the defendants have and claim to operate by, Hon. Justice A.I. Chikere of the Federal High Court 3, Abuja Division punctured their defense and nullified all their actions as not being in concordance with the provisions of the Constitutionthey claim to be operating.

The judge said the process/processes by which HON. ENGR. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS was purportedly removed (suspended and subsequently impeached) did not follow the provisions of the AFN Constitution thus the actions including the meetings and resolutions were null and void.

WHAT NEXT?

After judgment was passed on the 1st of July 2020 by Hon. Justice A.I. Chikere of the Federal High Court 3, Abuja Division, a press release by the legal counsel to the Hon. Minister was made to the public and it read thus :

PRESS RELEASE

IBRAHIM SHEHU GUSAU VS HON. MINISTER OF YOUTH

AND SPORTS & 3 OTHERS – FHC/ABJ/CS/113/2020

THE JUDGMENT TODAY AT THE FEDERAL HIGH COURT (FHC) ABUJA BEFORE JUSTICE CHIKERE AND THE POSITION OF FEDERAL MINISTRY OF YOUTH AND SPORTS DEVELOPMENT.

1.​The judgment given by Justice Chikere this morning is a declaratory Judgment and the Ministry has a right of appeal within 90 days.

What is a declaratory Judgment?

(a) It defines rights of parties.

(b) It does not order anything specific to be done, and

(c) It does not award any damages.

2.​Though the Judgment demonstrates Gusau’s declaration of autonomy of AFN, independent of Government is a non-issue.

3.​This civil matter has nothing to do with all the criminal allegations against Gusau before the various investigating Agencies. The Ministry will explore it’s rights of appeal within the statutory period allowed for appeal.

4.​The implication for appeal since this is a declaratory Judgment is that parties will maintain status quo Ante.  

Signed

Danjuma Muhammad Director Legal Services Federal Ministry of Youth and Sports Development.

BREAKDOWN

In paragraph 3 of the press release mentioned above, counsel to the Hon. Minister mentioned “criminal allegations against Gusau.”

The major criminal allegation against Gusau is misappropriation of funds. Again, we look at what the Code Governance says about finances.  

Article 4.2.5 of the Code of Governance states “The President of the NSF shall consider and approve all financial requests recommended by the Secretary General in accordance with Due Process and Financial Regulations of the Federal Government.

Article 4.4.1 down to 4.4.15 of the Code of Governance speaks about the roles of the Secretary General amongst which are:

4.4.1The Secretary General of a National Sports Federation, who must be a civil servant and a graduate of physical education, sports administration or its equivalent qualification, shall be seconded by the FMY&SD.

4.4.2He shall be the Chief Administrative and Chief Accounting Officer of the NSF and shall coordinate all activities of the Federation.

4.3.2 He shall be the ‘A’ signatory signing jointly with the Treasurer to all Accounts of the NSF in accordance with the provisions stated in Article 4.2.5 of this code.

In the same vein, Article 4.6.1 down to 4.6.7 of the Code of Governance states the roles of the roles of the Treasurer amongst which are:

4.6.1The Treasurer, who shall be a university graduate in accountancy or its equivalent must be a staff of the Accounts Department of and nominated by the FMY&SD.

4.6.2He shall keep and maintain all financial records/ documents of the NSF.

4.6.3He shall prepare all vouchers and other documents required for payment purposes.

4.6.4He shall serve as B Signatory signing jointly with the Secretary General to all accounts of the NSF.

These articles clearly show that all financial dealings go through the Secretary General and Treasurer (both members of staff of the Ministry).

It also has to be noted that agencies in charge of investigating cases of corrupt practices in the land has invited HON. ENGR. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS and Sunday Adeleye for questioning and have found no evidence to support these claims of funds misappropriation.

So the question that begs for answer is; how does a person/s make account for money he/they had no access to?

In paragraph 4, the legal counsel to the Hon. Minister said: “....is that parties will maintain status quo Ante.”  

The term status quo ante bellum (also status quo ante bellum and often shortened to status quo ante) is a Latin phrase meaning “the state existing before the war”. The term was originally used in treaties to refer to the withdrawal of enemy troops and the restoration of prewar leadership.

Another question that begs for answer from the above statement: Are the Hon. Minister and all other defendants going back to the beginning when HON. ENGR. Ibrahim Shehu-Gusau, PhD, FNSE, FNCS was the president before the war started?

If yes, what then are they appealing?

Note its only a competent court of the land can declare a position of status quo ante bellum.”

Conclusion

It is obvious that the Athletics Federation of Nigeria (AFN) has worked its way to achieving Article 11.3 of the Code of Governance which states: “NSFs must work towards self-sustenance in the execution of their programmes and activities.”

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