Kalusha Bwalya steps up fight against being banned from contesting the FA presidency


Kalusha Bwalya steps up fight against being banned from contesting the FA presidency

THE SouthernTIMES May 15, 2020

    By Jeff Kapembwa

    Lusaka----Kalusha Bwalya, Zambia’s celebrated icon and former Africa footballer of the year’s fate hangs in the balance following his protracted appeal seeking to contest the country’s top Football Association (FA) seat in this years 28 February abortive elections.

    Kalusha had been vetoed by the FA based on the global football’s governing rules premised on the integrity of candidates ahead of the polls last February. Bwalya, the former FA’s vice Chairperson, together with two others petitioned higher courts seeking redress, arguing there were shortcomings in the decision of the committee in scrutinizing potential candidates and wanted redress.

    After seeking redress from the FIFA’s Court of Arbitration for Sport (CAS), Bwalya is set to hear his fate after he appeals through a video conference on either May 18 or 22, the dates Zambia’s FA Football Association of Zambia (FAZ) had vetoed presidential aspirant, Kalusha.

    The FA argued that Bwalya could not get merit based on an integrity test they carried out, the same argument he contested through CAS. Bwalya had also requested, among the provisional measures, that the elections be halted until his case is heard, which the FA did.

    According to correspondence seen by The Southern Times, CAS now has to decide whether Kalusha Bwalya should be barred or it should be put to the voters to have a last word. It has, however, thrown out a request by Bwalya to suspend proceedings in the arbitration case.

    On 27 April 2020, Bwalya’s Spanish lawyers wrote to the CAS, requesting the Swiss-based court to suspend arbitration proceedings, basing his argument on the outcome of the Ndola High Court proceedings which stayed contempt proceedings.

    In a letter Bwalya’s lawyer Paolo Torchetti of Ruiz-Huerta & Crespo Sports Lawyers of Valencia in Spain read in part: “Although the Appellant’s position in his letter of 20 April, 2020 remains unchanged, that he insists that an oral hearing be held in this matter, he writes to request that the procedure be suspended. Firstly, we note that the FAZ elections have been suspended due to an order issued by the High Court for Zambia.

    “That injunction has been enforced and the matter has been referred and escalated to the Zambian Constitutional Court. Most recently, the High Court for Zambia heard an application for an Order to stay a ruling of the High Court pending the hearing and determination of the Appeal to the Constitutional Court. 


    "That application was granted where the FAZ electoral process cannot resume before all matters have been effectively dealt with. Therefore, the injunction prohibiting the elections and related issues will be heard by the Zambian Constitutional Court before any electoral process can proceed.” It read in part.

    However, Zambia’s FA lawyers, Mando and Pasi Advocates have argued that Kalusha’s request was factually incorrect, noting that there was a deliberate attempt by the appellant to misrepresent facts in terms of cases before the Zambian courts.

    The FA contends that their elections had been halted by the restrictions put in place by health authorities as they address the spread of the COVID 19 pandemic worldwide.  It further contends, the appellant deliberately ignored such a fact in his argument.

    FAZ also argued that since arbitration proceedings under CAS were independent of any other proceedings including the national courts, the decisions of the Zambian courts had no bearing and were not binding on CAS.

    The FA, in its submissions argued on the other hand that the CAS proceedings were binding on and enforceable in the Zambian Courts. It suggested that it made more sense to stay the Zambian court proceedings and proceed with the arbitration than suspending the CAS proceedings for the sake of the appellant’s hope that he may get some relief from proceedings he was not even a party to.

    “It is either the appellant is the architect of [or] has an interest in the matter in the court below and merely using the plaintiffs as his proxies in the Zambian proceedings. If this is the case, this would be tantamount to forum shopping which the tribunal should not allow,” FAZ submitted.

    “The correct thing for the appellant to do is to discontinue this arbitration and pursue his claim in the Zambian Courts or instruct his proxies to withdraw the Zambian proceedings and focus on this arbitration. If the foregoing is not the case, then the proceedings in the court below should have no bearing on the outcome of this matter and vice versa.”

    Bwalya’s lawyers, on the other hand, had also raised the continued stay in office of the incumbent FAZ president Andrew Kamanga. The FA’s legal team argues that Bwalya’s lawyers were misleading CAS and that they were aware of the correspondence from FIFA affirming that the Kamanga executive must continue holding office until after elections were concluded after the COVID-19 pandemic.

    The FA stated that the letter from FIFA was a response to the appellant’s lawyers’ letter, demanding that the association’s executive vacates office.

    “…the Appellant’s request for suspension of the proceedings is for an indefinite period, contrary to R32 which requires that any such suspension be for a limited period of time,” FAZ argued, adding that the arbitration should proceed or the appellant should withdraw the appeal or should pay security for costs, failure to which the appeal should be deemed withdrawn.

    In its ruling, the CAS’ Sole Arbitrator Sophie Roud stated: “…I note that the appellant will not withdraw his appeal and that he maintains his request for suspension. On behalf of the Sole Arbitrator, the appellant’s request for suspension is denied.”

    This means that the court of arbitration will go ahead and decide Kalusha’s fate without taking into consideration the case in the Zambian courts. In its preliminary ruling, CAS had thrown out Kalusha’s challenge on the decision of the FAZ electoral committee to disqualify him from contesting in the association’s elections.

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