The Sports Law Review: Kenya
Organisation of sports clubs and sports governing bodies
i Sports Kenya
Sports Kenya was established by the Sports Act of Kenya. It is established as a body corporate with perpetual succession and a common seal and in its corporate name be capable of suing and being sued, taking, purchasing or otherwise acquiring, holding and disposing of moveable and immovable 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 be performed by a body corporate.
The Act gives it a number of functions, the main function being 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. The Act spells out a number of functions expected of it, so it is by no means limited to the main function alone.
ii Powers of Sports Kenya
Apart from its functions, the Act donates powers to Sports Kenya. It is given the powers to:
- 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 and 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 after a period of between two and four years, and persons elected as officials thereof shall consequently hold office in such a manner that the chairperson holds office for a term not exceeding four years, but will be eligible for re-election for one more term, while any other official shall hold office for a term not exceeding four years, and will also be 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. The Constitution should also provide for the subscription to anti-doping policies and rules that conform with the World Anti-Doping Agency Code and compliance with the requirements set out in an anti-doping policy and rules of the National Anti-Doping Organization; and subscription to Court of Arbitration for Sports policies and 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 the Confederation of African Football (CAF). The objectives of CAF are 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;
- promote the development of women's football and ensure the full participation of women at all levels of football governance;
- organise its own continental competitions and any other intercontinental or international competitions assigned by FIFA;
- draw up regulations and adopt provisions governing its activities, and to ensure those are respected;
- 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;
- 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;
- maintain relations with FIFA, the IOC, international sport organisations, as well as with other continental football confederations and zonal unions;
- 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;
- encourage national associations and public authorities to do their utmost to work towards the professional and social recycling of footballers;
- 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;
- promote friendly relations between national associations, zonal unions, clubs, officials and players;
- ensure the independence of the management of African football, and avoid any form of political interference;
- 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 to activate the admission procedure for CAF inter-club licensed competitions.
Some of the requirements that the clubs comply with before getting the certificate include submitting the following: club logo; official nickname; club motto; history of the club; samples of home and away kit; and physical address of the club. They should also have a postal address, website and an official digital platform or 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 and away teams and for 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 football aspects 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. It mandates the Public Service Commissions to appoint the Registrar who should be in charge of the Office of the Sports Registrar, responsible for matters relating to the licensing of professional sports and professional sports persons in accordance with the provisions of the Sports Act and responsible for 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 the national level, in accordance with the provisions of the Act, responsible for matters relating to the licensing of professional sports and professional sports persons in accordance with the provisions of this Act, and responsible for the arbitration of registration disputes between sports organisations.
The Registrar is required to keep and maintain a register of the registered sports organisations and such other particulars relating to the registered sports organisations as may be prescribed. He or she is charged with the mandate of issuing licences for professional sports in accordance with the regulations and the requirements that the Cabinet Secretary may prescribe and any other relevant law.
vi Registration of sports organisations
The Act prohibits any body or organisation from operating 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 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.
The dispute resolution system
i Sports Dispute Tribunal
The Sports Act establishes the Sports Dispute Tribunal (Tribunal). 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; at least two members who shall be advocates of the High Court of Kenya with at least seven years' experience and have experience in legal matters relating to sports or have been involved in sport in any capacity; and at least two, and not more than six, other persons who have experience in sport, in any capacity, of at least 10 years.
The Act also spells out the Tribunal's jurisdiction. Its jurisdiction is 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. 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. It donates to 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 Agency's Anti-Doping Rules, among other legal sources.
The Tribunal is to establish its own procedures.
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.
Save as otherwise provided for under Article 4.4.7 of the Code on Therapeutic Use Exemptions, 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 Agency, the national anti-doping organisation of the person's country of residence, World Anti-Doping Agency, 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.
The law avails an avenue of appeal from the Tribunal to the Court of Arbitration for Sport. The Agency 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. It also provides that an international-level athlete, an athlete's support personnel, the Agency, 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 insofar 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.
Sports and taxation
Sportspersons are not exempt from paying taxes in Kenya. Subject to, and in accordance with, the Income Tax Act, a tax to be known as income tax is charged for each year of income upon all the income of a person, whether resident or non-resident, which accrued in or was derived from Kenya. It is noteworthy that one of the functions of Sports Kenya under the Sports Act is to recommend, in liaison with the relevant sports organisations, tax exemption for sportspersons.
Where sports income is earned overseas by a sportsperson who is a resident of Kenya for tax purposes, such 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. Such 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 Kenyan residents for tax purposes. The Income Tax Act defines a person who is a resident in Kenya for tax purposes when applied in relation to an individual means that the person has a permanent home in Kenya and was present in Kenya for any period in a particular year of income under consideration; or that 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 was 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.
On the issue of double taxation, Kenya has double taxation treaties with several countries, which protect residents earning income from these countries from double taxation. The Kenyan government has concluded double taxation agreements (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.
Under the Act, the Minister may from time to time by notice declare that arrangements, specified in the notice and being 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.
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.
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
Specific sports issues
The Anti-Doping Act establishes a body known as the Anti-Doping Agency of Kenya. 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; owning, taking, purchasing or otherwise acquiring, holding, charging and disposing of moveable or immovable 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. 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. 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 wellbeing of competitors and the rights of all persons who take part in sport. 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 analysis of samples and other required specimens.
It also implements anti-doping activities in the country including the testing of collected samples in all sports, sport federations and sport organisations, 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.
It is noteworthy that 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. It is an Act of Parliament to provide for the control and licensing of betting and gaming premises; for the imposition and recovery of a tax on betting and gaming and for the authorising of public lotteries.
The Act establishes the body to be known as the Betting Control and Licensing Board. 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.
Part 3 of the Act governs the control and licensing of betting under which it provides for offences in betting and gaming. Some of the offences it creates include the prohibition against unlicensed bookmaking, betting by means of unlicensed totalisator, offences relating to pool betting schemes, prohibition against touting, prohibition against advertising of betting, prohibition against liquor on licensed premises, prohibition against playing games of chance on licensed premises, betting with young persons as an offence and betting in public places an offence.