I organisation of sports clubs and sports governing bodies
i Sports Kenya
The Sports Act establishes a body known as Sports Kenya.2 It is established as a body corporate with perpetual succession and a common seal. It is capable of suing and being sued; taking, purchasing or otherwise acquiring, holding and disposing of moveable and immoveable property; borrowing money; and doing or performing any other things or acts for the proper performance of its functions under the Act that may be lawfully done or performed by a body corporate.
The Act gives it a number of functions but the main one is to promote, coordinate and implement grassroots, national and international sports programmes for Kenyans, in liaison with the relevant sports organisations, and facilitate the active participation of Kenyans in regional, continental and international sports, including in sports administration.3 The Act spells out a number of functions expected of it, so it is by no means limited to the main function alone.4
ii Powers of Sports Kenya
Apart from its functions, the Act confers powers on Sports Kenya. It is given the powers to:5
- erect buildings and structures and carry out works necessary or desirable for the purposes of Sports Kenya;
- appoint agents and attorneys;
- engage persons to perform services for Sports Kenya;
- obtain commercial sponsorship for Sports Kenya and participate in marketing arrangements involving endorsement by Sports Kenya of products and services associated with sports;
- provide, whether by sale or otherwise, any article or thing bearing a mark, symbol or writing that is associated with Sports Kenya;
- regulate the provision of services and use of the facilities of Sports Kenya;
- act as an agent for any person engaged, whether within Kenya or elsewhere, in the performance of services, or the provision of facilities, of a kind similar or complementary to those performed or provided by Sports Kenya;
- undertake the construction or execution of any works on land vested in Sports Kenya; and
- make regulations, as stipulated in the Act, with the approval of the Cabinet Secretary.
iii Requirements of constitutions of Kenyan sports organisations
In terms of corporate governance, the Second Schedule to the Sports Act provides for matters to be provided for in the constitution of sports organisations.
It requires that the constitution of a body seeking registration as a sports organisation shall provide that elections of officials and athletes representatives at the national, branch and sub-branch levels shall be done directly by club representatives or club members and that only citizens of Kenya shall be eligible for election as the chairperson, secretary or treasurer of a body at the national level. It further requires that contemplated elections shall be held at regular intervals of between two and four years, and persons elected as officials shall consequently hold office in such a manner that the chairperson holds office for a term not exceeding four years, but is eligible for re-election for one more term, while any other official shall hold office for a term not exceeding four years, but is eligible for re-election for one more term.
It also requires that the elections shall be held in accordance with the general principles for the electoral system as stipulated in Article 81 of the Constitution of Kenya, 2010.6 The constitution of such sports organisations should also provide for the subscription to anti-doping policies; rules that conform with the World Anti-Doping Agency Code; compliance with the requirements set out in the anti-doping policy and rules of the National Anti-Doping Organization; subscription to the Court of Arbitration for Sports policies; rules that conform with requirements set out in the Sports Disputes Tribunal policy; and rules for sports disputes resolution.
Officials at national, branch and sub-branch levels should be elected directly and only registered club members are entitled to vote at those elections. Constitutions should also provide that the selection of the Kenyan team and the technical personnel shall be done in good time and transparently using fair criteria, and that the criteria for authorisation and registration of sportspersons and sportspersons' representatives shall be codified, transparent and fair.
iv Confederation of African Football
The Confederation of African Football Statute governs football in Kenya and Africa in general. It stipulates the Objectives and Principles of Confederation of African Football (CAF).7
The objectives of CAF are the following.
- To promote and develop the game of football and increase its popularity in Africa; while considering its global, educational, cultural and humanitarian impact by implementing youth and development programmes.
- To promote the development of women's football and ensure the full participation of women at all levels of football governance.
- To organise its own continental competitions and any other intercontinental and international competitions assigned by FIFA.
- To draw up regulations and adopt provisions governing its activities, and to ensure those are respected.
- To manage all forms of football by means of adopting and implementing the necessary or appropriate measures to prevent any infringements of the Statutes, Rules and Regulations as well as any decisions or directives of FIFA and CAF; inclusive of the provisions of the Laws of the Game.
- To prevent practices or procedures that may jeopardise the integrity of the players, the game, or its competitions; or give rise to any form of abuse of the game of football.
- To maintain relations with FIFA, the IOC, international sport organisations, as well as with other continental football confederations and zonal unions.
- To promote football free from discrimination against any country, person or group of persons, be it the grounds of ethnicity, gender, language, religion, politics or any other reason.
- To encourage national associations and public authorities to do their utmost to work towards the professional and social development of footballers.
- To fight against doping, and to take the necessary measures to combat the use of prohibited substances to protect the health of footballers and the credibility of the competitions.
- To promote friendly relations between national associations, zonal unions, clubs, officials and players.
- To ensure the independence of the management of African football, and avoid any form of political interference.
- To adhere to the fundamental principles of the Olympic Movement and to undertake:
- the promotion of peace, solidarity, fraternity and unity among footballers, officials and clubs; both in Africa and worldwide;
- to support the measures undertaken by the African Union and by other non-governmental organisations in favour of the youth, development of sport, culture and education; and
- to partake in the fight against scourges ravaging or posing a threat to the continent and humanity; in cooperation with the United Nations, the African Union, and other specialised organisations.
All football clubs are required to comply with the CAF licensing requirements before getting their certificates. According to CAF, licensing is a certificate confirming the fulfilment of all the mandatory minimum requirements by the licensee in order to activate the admission procedure for CAF inter-club licensed competitions.
Some of the requirements are that the clubs comply with before getting the certificate include, submitting their logo, official nickname, club motto, history of the club, samples of home and away kit and the physical address of the club. They should also have a postal address, website and official digital platforms.
Clubs' home grounds must be all green grass or artificial turf with proper marking. The stadiums should also have an internal perimeter fence to prevent unauthorised people from accessing the pitch. The stadiums should have a seating arrangement to separate home and away fans, the same as separate changing rooms for home, away teams and match officials.
Financially, clubs must submit a budget for the whole season, the source of their funds and a bank statement for the past 12 months. The clubs will also be required to have youth teams and professional players who have written contracts, and all the players, including the youth teams, must be registered with the local federation – in this case the Football Kenya Federation (FKF). The senior team members must have jersey numbers that should not be changed for the entire season.
The Kenyan Premier League Limited (KPL) and National Super League (NSL) clubs will have to employ a chief executive officer. The KPL sides should have a coach who has attained a CAF level B licence, while the FKF coach should have a CAF level C licence holder with well constructed contracts.
v Objectives of the licensing
The licensing seeks to achieve clearly outlined objectives towards a well-developed system of administration both at the club and federation level with a general target of raising the profile of the game:
- the promoting and improving of the quality and the level of all aspects of football in Africa;
- ensuring that the clubs have the appropriate infrastructure, knowledge and application in respect of management and organisation;
- adapting and improving the clubs sporting infrastructure;
- improving the economic and financial capacity of the clubs, through proper corporate governance and control;
- ensuring and guaranteeing the continuity of the international competitions of clubs during the season; and
- allowing the parallel development and comparison between clubs by ensuring the necessary compliance in terms of financial, sporting, legal, administrative and infrastructure criteria.
vi Office of the Registrar of Sports
The Act also establishes the Office of the Sports Registrar, which is established as an office within the Public Service.8 It mandates the Public Service Commissions to appoint the Registrar who should be responsible for the Office of the Sports Registrar; matters relating to the licensing of professional sports and professional sports persons in accordance with the provisions of the Sports Act; and the arbitration of registration disputes between sports organisations.
The Registrar is also responsible for the registration and regulation of sports organisations and multi-sports bodies representing sports organisations at national level, in accordance with the provisions of the Act. He or she is also charged with issuing licences for professional sports in accordance with the regulations and the requirements that the Cabinet Secretary may prescribe and any other relevant law.
vii Registration of sports organisations
The Act prohibits any body or organisation to operate as a sports organisation unless it is registered under the Act. The Registrar registers sports organisations as either a sports club, a county sports association or a national sports organisation.
All national sports organisations registered under the Act are to be open to the public in their leadership, activities and membership. The certificate of registration issued under the section are deemed conclusive evidence of authority to operate throughout the country as may be specified in the certificate of registration; and may contain such terms and conditions as the Registrar may prescribe.
II THE DISPUTE RESOLUTION SYSTEM
i Sports Dispute Tribunal
The Sports Act establishes the Sports Dispute Tribunal (Tribunal).9 It stipulates that the Tribunal shall consist of members appointed by the Judicial Service Commission in consultation with the national sports organisations. The members will include a chairperson who shall be a person who is qualified to be appointed as a judge of the High Court;10 at least two advocates of the High Court of Kenya with at least seven years' experience and either experience in legal matters relating to sports or an involvement in sport in any capacity; and at least two and not more than six other persons with at least 10 years experience in sport, in any capacity.
The Act also spells out the Tribunal's jurisdiction,11 namely that it shall determine appeals against decisions made by national sports organisations or umbrella national sports organisations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue.12 The Tribunal further has the jurisdiction to hear appeals from decisions of the Registrar under the Act.
The Anti-Doping Act also lays down the jurisdiction of the Tribunal over anti-doping matters referred to it.13 It confers on the Tribunal jurisdiction to hear and determine all cases on anti-doping rule violations on the part of athletes and athlete support personnel and matters of compliance of sports organisations. It stipulates that the Tribunal shall be guided by the Code, the various international standards established under the Code, the 2005 UNESCO Convention Against Doping in Sports, the Sports Act and the Anti-Doping Agency of Kenya's Anti-Doping Rules, among other legal sources.
The Tribunal is to establish its own procedures.14
Disputes involving national and county level athletes, athlete support personnel, sports federations, sports organisations, professional athletes and professional sports persons are resolved by the Tribunal both at the first instance and at appeal, each consisting of three members appointed by the chairperson of the Tribunal.15
Save as otherwise provided for under Article 4.4.7 of the Code on Therapeutic Use Exemptions,16 disputes involving international-level athletes are resolved by the Tribunal at the first instance with an appeal to the Court of Arbitration for Sport. In all disputes, there is a right of appeal within 30 working days of the date of communication of the Tribunal's decision by the accused, the Anti-Doping Agency of Kenya, the national anti-doping organisation of the person's country of residence, the World Anti-Doping Agency, the International Paralympic Committee International Sports Federation, the International Olympic Committee and any other international sports body.
For the avoidance of doubt, the Act clearly spells out that the Tribunal shall not have jurisdiction over national crimes related to doping as they relate to recreational athletes and other persons, entities or organisations.17
The law provides an avenue of appeal from the Tribunal to the Court of Arbitration for Sport.18 The Anti-Doping Agency of Kenya may lodge an appeal against a decision of the World Anti-Doping Agency or an International Federation to the Court of Arbitration for Sport in accordance with Article 4.4 of the Code.19 It also provides that an international-level athlete, an athlete's support personnel, the Anti-Doping Agency of Kenya, an international federation or the World Anti-Doping Agency may appeal against a decision of the Tribunal to the Court of Arbitration for Sport in accordance with Article 13 of the Code.
ii Specific internal dispute resolution mechanisms: Kenya Premier League
The Kenyan Premier League has a disciplinary body called the Independent Disciplinary and Complaints Committee (IDCC). The IDCC is the tribunal for resolving disputes in the game of football managed under the auspices of the KPL. The IDCC is guided by Article 1.1 of the Rules of Kenyan Football Rules, which states that the Kenyan Football Federation consists of branches and clubs approved by the executive committee.
All branches and clubs must apply and adhere to the Laws of the Game and Rules approved by the FKF and international football authorities such as CECAFA, CAF and FIFA. Consequently, the rules of law applied in deliberations of the IDCC consist of Laws of the Game as approved by FIFA, the Rules of Kenyan Football, the policy decisions made by the KPL, the FIFA Disciplinary Code, other FIFA Rules and Regulations, the decisions of the Court of Arbitration for Sports (CAS) case law from IDCC and other jurisdictions, the Laws of Kenya, the rules of natural justice and other documentation in so far as such documentation adds relevant value to the particular circumstances of a given case.
Where there is a discrepancy or conflict in any of the above, the FIFA Disciplinary Code, other FIFA rules and regulations and decisions of the CAS have precedence.
III Professional sports and labour law
An employee is defined to mean a person employed for wages or a salary.20 Athletes and sportspersons who fit this criterion are employed for wages or salary.21 The Act also applies to all persons employed by any employer under a contract of service.22 Persons who would fall under this category include persons employed by sports clubs.
The Act lays down general principles of mandatory application, including in the employment of athletes.23 These principles include prohibition against forced labour, discrimination in employment and sexual harassment.24 The law also requires that all contracts of service be in accordance with the Act.25 It recognises both oral and written contracts as valid contracts of service.26 It requires, however, that a contract of service for a period or a number of working days that amount in the aggregate to the equivalent of three months or more, or that provide for the performance of any specified work that could not reasonably be expected to be completed within a period or a number of working days amounting in the aggregate to the equivalent of three months, shall be in writing.27
It lays strict requirements as to the contents of the contracts. In particular, it demands that a written contract of service shall state the name, age, permanent address and sex of the employee. The contract should also state the name of the employer; the job description; the date of commencement of the employment; and the form and duration of the contract.28
Contracts should spell out the place of work; the hours of work; the remuneration, scale or rate of remuneration; the method of calculating remuneration and details of any other benefits; the intervals at which remuneration is paid; the date on which the employee's period of continuous employment began, taking into account any employment with a previous employer that counts towards that period; and any other prescribed matter.29
The Act lays down strict requirements as to the payment, disposal and recovery of wages and allowances to employees.30 An employer is obliged to pay the entire amount of the wages earned by or payable to an employee in respect of work done by the employee in pursuance of a contract of service directly, in the currency of Kenya in cash; into an account at a bank or building society, designated by the employee; by cheque, postal order or money order in favour of the employee; or in the absence of an employee, to a person other than the employee, if the person is duly authorised by the employee in writing to receive the wages on the employee's behalf.31
As to when wages or salaries are due, the Act stipulates that where a contract of service entered into under which a task or piece-work is to be performed by an employee, the employee shall be entitled when the task has not been completed, at the option of his or her employer, to be paid by his or her employer at the end of the day in proportion to the amount of the task that has been performed, or to complete the task on the following day, in which case he or she shall be entitled to be paid on completion of the task.32
In the alternative, the employee is entitled in the case of piece-work, to be paid by his or her employer at the end of each month in proportion to the amount of work that he or she has performed during the month, or on completion of the work, whichever date is the earlier.33
Subject to the above, however, wages or salaries shall be deemed to be due in the case of a casual employee, at the end of the day; in the case of an employee employed for a period of more than a day but not exceeding one month, at the end of that period; in the case of an employee employed for a period exceeding one month, at the end of each month or part thereof; in the case of an employee employed for an indefinite period or on a journey, at the expiration of each month or of the period, whichever date is the earlier, and on the completion of the journey, respectively.34
Termination has proven to be most contentious in terms of the relationship between employees and employers in sports. Alive to this, the Act has very elaborate provisions to govern termination and dismissal. Very relevant are its provisions on the requirement of a termination notice prior to termination of the employment, or in the alternative payment in lieu of notice.35 Where an employee gives notice of termination of employment and the employer waives the whole or any part of the notice, the employer shall pay the employee remuneration equivalent to the period of notice not served by the employee, as the case may be, unless the employer and the employee agree otherwise.36
The Act further makes guidelines prohibiting termination of employment on account of redundancy unless certain specific grounds spelled out in the Act are met.37 It also places an obligation on employers to issue a notification and hold a hearing before termination on grounds of misconduct.38
The Act also makes extensive provision on summary dismissal and unfair termination since they form the bulk of the employment disputes that end up in court and the Sports Dispute Tribunal. On summary dismissal, the Act anticipates that it takes place when an employer terminates the employment of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term. As a general rule, no employer has the right to terminate a contract of service without notice or with less notice than that to which the employee is entitled by any statutory provision or contractual term.39 Nevertheless, subject to the provisions of the Act, it allows an employer to dismiss an employee summarily when the employee has by his or her conduct indicated that he or she has fundamentally breached his or her obligations arising under the contract of service.
In an attempt to provide clarification, it lays down matters that may amount to gross misconduct so as to justify the summary dismissal of an employee for lawful cause. Some of these matters include:40
- without leave or other lawful cause, an employee absents him or herself from the place appointed for the performance of his or her work;
- during working hours, by becoming or being intoxicated, an employee renders him or herself unwilling or incapable to perform his or her work properly;
- an employee wilfully neglects to perform any work that it was his or her duty to perform, or if he carelessly and improperly performs any work that from its nature it was his or her duty, under his or her contract, to have performed carefully and properly;
- an employee uses abusive or insulting language, or behaves in a manner insulting, to his or her employer or to a person placed in authority over him or her by the employer;
- an employee knowingly fails or refuses to obey a lawful and proper command that it was within the scope of his or her duty to obey, issued by his or her employer or a person placed in authority over him or her by the employer;
- in the lawful exercise of any power of arrest given by or under any written law, an employee is arrested for a cognisable offence punishable by imprisonment and is not within 14 days either released on bail or on bond or otherwise lawfully set at liberty; or
- an employee commits, or on reasonable and sufficient grounds is suspected of having committed, a criminal offence against or to the substantial detriment of his or her employer or the employer's property.
On unfair termination, the Act is explicit that no employer shall terminate the employment of an employee unfairly.41 It spells out a criterion of what the employer must prove to satisfy that the termination effected was not unfair.42 It requires the employer to prove that:
- the reason for the termination is valid;
- that the reason for the termination is a fair reason related to the employee's conduct, capacity or compatibility, or based on the operational requirements of the employer; and
- that the employment was terminated in accordance with fair procedure.
The Act further codifies what cannot be a ground for dismissal or for the imposition of a disciplinary penalty.43 These include a female employee's pregnancy, or any reason connected with her pregnancy; the going on leave of an employee, or the proposal of an employee to take any leave to which he or she was entitled under the law or a contract; an employee's membership or proposed membership of a trade union; the participation or proposed participation of an employee in the activities of a trade union outside working hours or, with the consent of the employer, within working hours; an employee's seeking office as, or acting or having acted in the capacity of, an officer of a trade union or a workers' representative; an employee's refusal or proposed refusal to join or withdraw from a trade union; an employee's race, colour, tribe, sex, religion, political opinion or affiliation, national extraction, nationality, social origin, marital status, HIV status or disability; an employee's initiation or proposed initiation of a complaint or other legal proceedings against his or her employer, except where the complaint is shown to be irresponsible and without foundation; or an employee's participation in a lawful strike.
The Act also makes provision for foreign contracts of services.44 It lays down requirements of the contract before it is attested to by the parties.45 It requires that a foreign contract of service shall not be attested unless the labour officer is satisfied that:
- the consent of the employee to the contract has been obtained;
- that the contract is free of any fraud, coercion or undue influence, and any mistake of fact or misrepresentation that might have induced the employee to enter into the contract;
- that the contract is in the prescribed form, so that the the terms and conditions of employment contained in the contract comply with the provisions of the Act and have been understood by the employee;
- that the employee is medically fit for the performance of his or her duties under the contract; and
- that the employee is not bound to serve under any other contract of service during the period provided in the foreign contract.
IV SPORTS AND TAXATION
Sportspersons are not exempt from paying taxes in Kenya. Subject to, and in accordance with the Income Tax Act, income tax is charged for each year of income upon all the income of a person, whether resident or non-resident, accrued in or derived from Kenya. However, one of the functions of Sports Kenya under the Sports Act is to recommend, in liaison with the relevant sports organisations, tax exemptions for sportspersons.46
Where sports income is earned overseas by a sportsperson who is a resident of Kenya for tax purposes, the income is considered to have accrued in or to have been derived from Kenya and is therefore taxable in Kenya. However, the tax paid overseas is offset against the tax computed locally on the income earned overseas as provided under Section 39(2) of the Income Tax Act. The sportsperson is, however, required to furnish evidence of tax paid overseas to be allowed to offset it against tax computed locally.
Where the sportspersons use their earnings to pay sports managers and agents who are non-residents, they should deduct withholding tax at the rate of 20 per cent of the gross amount payable and pay the balance to the manager or agent. That withholding tax is payable to the Commissioner of Domestic Taxes Department by the 20th of the month following the month of payment.
Local organisers of sporting events are also required to deduct 20 per cent withholding tax on any payment made to non-resident sportspersons and sports managers and agents.
It is instructive to underline that the tax only applies to those resident in Kenya for tax purposes. The Income Tax Act defines an individual who is a resident in Kenya for tax purposes as a person with a permanent home in Kenya who was present in Kenya for any period in a particular year of income under consideration; or a person who has no permanent home in Kenya but was present in Kenya for a period or periods amounting in the aggregate to 183 days or more in that year of income; or present in Kenya in that year of income and in each of the two preceding years of income for periods averaging more than 122 days in each year of income.47
On the issue of double taxation, Kenya has double taxation agreements (DTAs) with several countries, which protect residents earning income from these countries from double taxation. The Kenyan government has concluded DTAs with a number of countries and is currently expanding its treaty network. DTAs are important since they help in alleviating double taxation where business is conducted in different tax jurisdictions and also assist tax administrations in preventing fiscal evasion.48
Under the Act, the Minister may from time to time by notice declare that arrangements, specified in the notice, are arrangements that have been made with the government of any country with a view to affording relief from double taxation in relation to income tax and other taxes of a similar character imposed by the laws of the country.49
For countries with which Kenya does not have double taxation treaties, the law provides for special relief by the Minister of Finance, which allows the residents to offset taxes paid in other countries.50
i DTAs in Kenya
Ratified and in force
The following DTAs that have been ratified and are therefore in force. The Legal Notices contain the full text of the conventions.
|Double taxation agreements||Legal Notices|
|Zambia – 27.8.1968||Legal Notice No. 10/1970|
|Norway – 13.12.1972||Legal Notice No. 6/1973|
|Denmark – 13.12.1972||Legal Notice No. 5/1973|
|Sweden – 28.6.1973||Legal Notice No. 14/1973|
|UK – 31.7.1973||Legal Notice No. 253/1977|
|Germany – 17.5.1977||Legal Notice No. 20/1980|
|Canada – 27.4.1983||Legal Notice No. 111/1987|
|India – 12.4.1985||Legal Notice No. 61/1989|
Signed but not in force
The following DTAs have been signed but have not been ratified by all the contracting states and are therefore in not in force:
- Italy – 15 October 1979; and
- Tanzania and Uganda – 31 March 1999 L/N No. 45/1999 (renegotiated by EAC states on 23 November 2005 in Arusha, Tanzania).
Draft agreements under negotiation
The following DTAs are at different stages of negotiation. For those that are in force, but under review, the existing DTAs continue to operate until the review is complete. This will be intimated through a Legal Notice revoking the existing one.
- Tanzania and Uganda (renegotiated 23 November 2005);
- France (second round negotiations, Nairobi, 3 February 2006);
- Thailand (first round negotiations, Bangkok, 7 July 2006); and
- India (review first round, New Delhi, 14 July 2006).
Draft agreements for negotiation
The following draft DTAs are under discussions by the Task Force on Double Taxation and Investment Agreements under the chair of the Ministry of Finance:
- South Africa;
- the United Arab Emirates; and
V SPECIFIC SPORTS ISSUES
The Anti-Doping Act establishes a body known as the Anti-Doping Agency of Kenya.51 The Agency is a body corporate with perpetual succession and a common seal, which is capable, in its corporate name, of suing and being sued; and owning, taking, purchasing or otherwise acquiring, holding, charging and disposing of moveable or immoveable property. It is also granted the authority of receiving and borrowing money, entering into contracts and doing or performing all such other acts that may lawfully be done or performed by a body corporate.
The Agency is the only organisation permitted to carry out anti-doping activities in Kenya and its authority is recognised by all national federations in Kenya.52 The Agency is the successor in title to the Anti-doping Agency established under the Anti-doping Agency of Kenya Order 2015, which ceased to have effect immediately upon the commencement of the Act.53 The headquarters of the Agency are in Nairobi.
The main function of the Agency is to promote participation in sport, free from doping to protect the health and well-being of competitors and the rights of all persons who take part in sport.54 Its function is also to create awareness to discourage the practice of doping in sport among the public and the sporting community in particular. It also develops a national strategy to address doping in sport in collaboration with the Ministry of Sports, implement the World Anti-Doping Code and associated international standards, periodically gazette international standards and use World Anti-Doping Agency accredited laboratories for the analysis of samples and other required specimens.55
It also implements anti-doping activities in the country including the testing of collected samples in all sports, sport federations and sport organisations; and undertakes, coordinates or arranges for research to be undertaken in the field of performance-enhancing substances, and methods and doping practices in sport. As its mandate, it also promotes and implements the application of various guidelines and international standards in matters related to anti-doping.
In the performance of its functions, the Agency is required to address the needs of minors, take into account the needs of persons with disabilities or other persons with special needs, and ensure that the rights of everyone involved in the doping control procedures are respected.
The Agency is granted all the powers necessary for the proper performance of its functions under Section 8 of the Act.
Betting in Kenya is regulated by the Betting, Lotteries and Gaming Act,56 which provides for the control and licensing of betting and gaming premises; the imposition and recovery of a tax on betting and gaming; and the authorising of public lotteries.
The Act establishes the body to be known as the Betting Control and Licensing Board.57 The Act stipulates that the Board shall have power to issue licences and permits in accordance with the Act and any regulations made thereunder; during the subsistence of a licence or permit, to vary, or for good cause to suspend or cancel it and to inquire into complaints against licensees or permit-holders.58
Part 3 of the Act governs the control and licensing of betting and provides for offences in betting and gaming. Some of the offences it creates include unlicensed bookmaking,59 betting by means of unlicensed totalisator,60 pool-betting schemes,61 touting,62 advertising betting,63 liquor on licensed premises,64 playing games of chance on licensed premises,65 betting with young persons66 and betting in public places.
VI OUTLOOK AND CONCLUSION
Kenya has a worldwide reputation in athletics, especially long-distance running. Paula Radcliffe had her 16-year women's marathon world record broken by a Kenyan, Brigid Kosgei, who ran the Chicago Marathon in 2:14:04 on 13 October 2019. This came just a day after Eliud Kipchoge, also a Kenyan, became the first person to run a marathon in under two hours, making it a historic weekend for marathon running in the world and Kenya. This demonstrates how important sports are to Kenya, and reflects the importance of the laws and administrative arrangements relating to sport in Kenya.
1 John M Ohaga is managing partner at TripleOKlaw Advocates, LLP, and chair of the Kenya Sports Disputes Tribunal. Franklin Cheluget Kosgei is an associate at TripleOKlaw Advocates, LLP.
2 Section 3 of the Sports Act, No. 25 of 2013.
3 Section 4 of the Sports Act.
4 The Act spells out other functions. Those functions are to:
(a) Promote, coordinate and implement grassroots, national and international sports programs for Kenyans, in liaison with the relevant sports organisations and facilitate the active participation of Kenyans in regional, continental and international sports, including in sports administration;
(b) Manage and maintain the sports facilities specified in the First Schedule and any other facilities which the Cabinet Secretary may, by notice in the Gazette, declare to be sports facilities for the purposes of this Act;
(c) Establish, manage, develop and maintain the sports facilities, including convention centers, indoor sporting and recreational facilities for the purposes of this Act;
(d) Adopt, develop, plan, set stadia standards and licence and regularly inspect stadia for sporting and recreational use;
(e) Establish and maintain a sports museum;
(f) Participate in the promotion of sports tourism;
(g) Provide the necessary amenities or facilities for persons using the services or facilities provided by Sports Kenya;
(h) Operate sports facilities on public grounds in such manner as it deems necessary;
(i) Collaborate with county governments, learning institutions and other stakeholders concerned with sports and recreation, in the search, identification and development of sporting talent, provision of sports equipment, facilities and technical training;
(j) Identify and recommend talents in sports to national sports organisations;
(k) Inculcate the sense of patriotism and national pride through sports and recreation, create awareness on matters of national interest through sporting events, create awareness on the benefits of regular participation in sports for healthy living and provide advisory and counselling services to athletes;
(l) Determine the national colours to be used in national and international competitions, in consultation with the relevant national sports organisations;
(m) Facilitate the preparation and participation of Kenyan teams in various international events and the hosting of similar events in the country and recommend members of steering committees for international sports competitions, in consultation with the relevant national sports organisations;
(n) Recommend to the relevant authorities issuance of work permits and visas to foreign athletes and technical sports personnel, in consultation with the relevant national sports organisations;
(o) Approve, at the request of the respective national sports organisations, the clearance of foreign sports technical personnel before engagement by national sports organisations and other sporting bodies;
(p) Organise and coordinate training, conduct research, maintain a resource centre and provide and engage consultancy services for sports development programmes, in consultation with the respective national sports organisations;
(q) With the approval of the Cabinet Secretary, prescribe charges or fees in respect of:
i Access to, or use of, any of the resources or facilities of Sports Kenya;
ii The provision of programmes, services, information or advice by Sports Kenya; and
iii The admission of persons to events and activities organised by Sports Kenya;
(r) Recommend, in liaison with the relevant sports organisations, tax exemption for sportspersons; and
(s) Perform such other functions related to the implementation of this act as may be directed by the cabinet secretary.
5 Section 5 of the Sports Act.
6 Article 81 of the Constitution of Kenya, 2010 spells out the general principles for the electoral system. Pursuant to Article 81, the electoral system shall comply with the following principles:
(a) freedom of citizens to exercise their political rights under Article 38;
(b) not more than two-thirds of the members of elective public bodies shall be of the same gender;
(c) fair representation of persons with disabilities;
(d) universal suffrage based on the aspiration for fair representation and equality of vote; and
(e) free and fair elections that are:
- by secret ballot;
- free from violence, intimidation, improper influence or corruption;
- conducted by an independent body; transparent; and
- administered in an impartial, neutral, efficient, accurate and accountable manner.
7 Article 2 of the Confederation of African Football Statute.
8 Section 45 of the Sports Act.
9 Section 55 of the Sports Act.
10 The author of this chapter, John Morris Ohaga, currently sits as the chair of the Tribunal.
11 Section 58 of the Sports Act.
12 Such appeals would include appeals against disciplinary decisions; appeals against not being selected for a Kenyan team or squad; other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear.
13 Section 31 of the Anti-Doping Act, No. 5 of 2016.
14 Section 31(3) of the Anti-Doping Act.
15 Section 31(4) of the Anti-Doping Act.
16 If the medication an athlete is required to take to treat an illness or condition happens to fall under the Prohibited List, a therapeutic use exemption may give that athlete the authorisation to take the necessary medicine.
17 Section 31(7) of the Anti-Doping Act.
18 Section 32 of the Anti-Doping Act.
19 Pursuant to Section 2 on Interpretation, the Code means the World Anti-Doping Code that has been adopted by sports organisations, international sports federations and national anti-doping organisations to regulate doping in sports.
20 The law in Kenya defines an employee to mean and include an apprentice and indentured learner.
21 Section 2 of the Employment Act Cap No. 226.
22 Section 3 of the Employment Act 2007.
23 Part II of the Employment Act.
24 Section 4, 5 and 6 of the Employment Act.
25 Section 7 of the Employment Act.
26 Section 8 of the Employment Act.
27 Section 9 of the Employment Act.
28 Section 10 of the Employment Act.
29 Section 10 of the Employment Act.
30 Section 17 of the Employment Act.
31 Section 17 (1)(a), (b), (c) and (d).
32 Section 18 (1)(a) of the Employment Act.
33 Section 18(1)(b) of the Employment Act.
34 Section 18(2) of the Employment Act.
35 Section 35 and 36 of the Employment Act.
36 Section 38 of the Employment Act.
37 Section 40 of the Employment Act.
38 Section 41 of the Employment Act.
39 Section 44(1) of the Employment Act.
40 Section 44(4) of the Employment Act.
41 Section 45 (1) of the Employment Act.
42 Section 45 (2) of the Employment Act.
43 Section 46 of the Employment Act.
44 Part XI of the Employment Act.
45 Section 84 of the Employment Act.
46 Section 4(r) of the Sports Act.
47 Section 2 of the Income Tax Act.
49 Section 41 (1) of the Income Tax Act.
50 Section 42 of the Income Tax Act.
51 Section 5 of the Anti-Doping Act No. 5 of 2016.
52 Section 5 (2A) of the Anti-Doping Act.
53 Section 5 (3) of the Anti-Doping Act.
54 Section 7(a) of the Anti-Doping Act.
55 Section 7(b) to (v) lays out the functions of the Agency. The Act does not specifically state that the first function is the main function, however. It only lists them all out without giving any preference as to priority. The first function is, however, arguably the main function since it seems to summarise the overall role of the Agency.
56 Betting, Lotteries and Gaming Act Cap 131 Laws of Kenya.
57 Section 3 of the Betting, Lotteries and Gaming Act.
58 Section 4 of the Betting, Lotteries and Gaming Act.
59 Section 15 of the Betting, Lotteries and Gaming Act.
60 Section 16 of the Betting, Lotteries and Gaming Act.
61 Section 21 of the Betting, Lotteries and Gaming Act.
62 Section 24 of the Betting, Lotteries and Gaming Act.
63 Section 25 of the Betting, Lotteries and Gaming Act. This prohibition is, however, qualified, and limited to circumstances that the Act spells out. It states:
A person who, in connection with any licensed betting premises, licensed bookmaking or licensed pool betting scheme, without the approval of the Board –
(a) holds himself out by advertisement or notice or public placard as willing to bet with members of the public;
(b) displays any written or printed placard or notice relating to betting in any shape or form, so as to be visible in a public street or place; or
(c) prints or publishes, or causes to be printed or published, any advertisement or other notice, shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding three months or to both; but nothing in this section shall prohibit the printing, reproduction and publication of circulars giving information relating to betting on an intended horse race or other race in Kenya or elsewhere, if the circulars are issued by a person granted a licence under this Part.
64 Section 26 of the Betting, Lotteries and Gaming Act.
65 Section 27 of the Betting, Lotteries and Gaming Act.
66 Section 28 of the Betting, Lotteries and Gaming Act.