ZC reject SRC directive

The Herald

By Robson Sharuko 

25 Janaury 2013

ZIMBABWE Cricket yesterday rejected the Sports Commission’s controversial directive, on the appointment of national team selectors, saying it was a violation of their constitution, in breach of

their contractual obligations and in conflict with the International Cricket Council’s Articles of Association.

The Sports Commission, acting under the orders of the Minister of Education, Sport, Arts and Culture, David Coltart, had directed that as of next Friday, only those who have played for the national teams would qualify to hold positions on the panel of selectors.

The ZC yesterday responded by saying that neither Coltart nor the Sports Commission had the legal capacity to force the organisation to embrace the directive.

The directive torched a storm in ZC, an organisation that has battled racial divisions in the past, with convenor of selectors, Givemore Makoni, charging that it was targeted at removing him from his post because he didn’t play for the national team.

Makoni claimed it was unfair for him to be kicked out of the panel of selectors, on the basis that he never played for the national team, without taking into consideration that his path into that team was blocked by hurdles planted by a sporting discipline that was pregnant with racial barriers.

Yesterday, ZC managing director, Wilfred Mukondiwa, officially wrote to Sports Commission director general, Charles Nhemachena, advising him that it was impossible for his organisation to implement the package of measures contained in the directive.

“Zimbabwe Cricket (‘ZC’) position on the directive is the following:
The constitution of ZC is registered with the Sport and Recreation Commission in terms of Section 29 of the Sport and Recreation Commission Act (Chapter 25:15)(‘The Act’). Subsection (7) of the Section provides that the constitution or rules or amendments, as the case may be, do not come into effect until they are registered in terms of Section 29. The constitution of ZC having been duly registered is effective and binding on the ZC and all the stakeholders.

The board of the ZC has, in terms of its constitution, registered in terms of the Act, appointed a national selection committee made up of two independent selectors, one of which is a convenor. The national head coach is also a member of the committee. The captain of the national team is also involved in selection but has no voting rights.

The effect of the directive is to require ZC to amend its lawfully registered constitution so as to oblige the board to stipulate the qualifications of the convenors as required by the directive. Simply complying with the directive, without amending the constitution, will not be competent. There will be no legal basis for reversing the actions of the board lawfully and constitutionally taken unless the constitution is itself amended.

There is presently no cause for the amendment of the constitution except the directive. The Commission cannot require the ZC to act unlawfully or outside its constitution. Moreover, ZC has entered into contracts with the current independent selectors which would be summarily terminated if the directive were to be implemented. ZC has no cause to terminate the contracts of the current selectors and has not made provision for the damages claimable by them in its budget for the breach of contracts that will be induced by implementing the directive. The contracts are due to subsist for a period of 12 months.

In terms of the Act, it does not appear that the Commission can require a national association to amend its constitution in such a manner as to determine the persons who shall take particular positions. That would appear to be micromanaging the national associations, which is not consistent with the manifest tenor of the Act. The Act empowers the Commission to provide a hands-off oversight role, except in case of a disciplinary nature. With respect, therefore, it appears that the Commission has no legal capacity to require ZC to do what its directive demands. ZC’s position is based on a reading following provisions of the Act which the SRC and the Minister may be purporting to rely upon.

Section 19 of the Act is a broad statement of the objectives of the Commission. It does not prescribe any powers to enforce the objectives. The powers have to be found elsewhere in the Act. As such, the objects are to a large extent general and apply to the controlling of sport and recreational activities in the country. They set parameters within which the Commission defines policy and do not empower the Commission to do specific actions in the administration of any sport. That is left to national associations.

Section 21 of the Act, as read with the Second Schedule, gives the Commission administrative powers to carry out its functions as a corporate body and does not certainly allow the Commission to act as it seeks to do in the present instance. The power to prescribe qualifications of national selectors, or any of the office-bearers, is left to the national associations and is not a function of the Commission.

Section 23 gives the Minister the power to give written directives of a “general character” which are in the national interest. The directive of the Minister in the present matter is not of a general character and from the points raised below will be shown to be clearly not in national interest. In any event, such directives are supposed to have a financial effect on the operations of the Commission.

This is apparent from the requirement that the Commission should report the effect of the directive in its report in terms of the Audit and Exchequer Act (Chapter 23:03). It is therefore clear that the directives that the Minister may give, in terms of the Section, are administrative in character and do not have anything to do with the running of associations.

From a practical point of view, even if ZC were minded to implement the directive, there are a number of serious problems. The amendment of the constitution cannot be achieved before the 1st of February 2013 for obvious reasons relating to the notice periods required for the necessary meetings in terms of the constitution.”

Mukondiwa said there were other challenges, which were not entirely constitutional, which made it impossible to implement the Sports Commission’s directive and these were:
It is a known fact that the game of cricket, until about 2004, was largely a minority sport. Deliberate steps were taken to integrate the sport and achieve a multi-racial composition in the playing of the sport of cricket at all levels. That process is still on-going and some of the results are apparent in the upcoming crop of young players of all races who currently constitute the national team.

Because of the position described above, there are not enough persons of a multi-racial mix eligible and available to be appointed as national selectors if the directive were to be implemented.
The implementation of the directive in the present circumstances would result in the racially skewed composition of the selectors which prevailed in the period prior to the year 2004. That would be obviously turning back the hands of time to the pre-2004 era and undo the integration efforts and programmes that were beginning to bear fruit. The current pool of retired black players is still too small to provide the selectors that may be appointed in terms of the directive. The result will be obvious.

A quick review of the status of the retired black former players, who played for the national teams, proves the point made above. Below is a table profiling the 10 persons who would otherwise be eligible if the directive were to implemented. It is apparent that, from their location in the world and their current vocations, they would not be available or willing to be appointed national selectors at this point in time or in the near future.

H.K Olonga (living and working in the UK; E.Z Matambanadzo (living and working in the USA); M. Mbangwa (living and working as a cricket commentator in SA); D.T Mutendera (living and working in Zimbabwe. Employed by ZC as a development coach); B.T Watambwa (living and working in Belgium); T. Taibu (retired to church ministry); D.T Hondo (playing club cricket in UK and New Zealand); N.B Mahwire (attending university in SA); W. Mwayenga (living and working in Australia. Involved in coaching in Sydney); T.V Mufambisi (living and working in Zimbabwe. self-employed).

Some of the current national selectors are people who did not play for the national team at any stage and did not have the opportunity to do so. They have, however, been able to contribute tremendously to the development of cricket and have raised sterling cricketers such as Tatenda Taibu. It does not make sense to contend that the same people are not able to serve as convenors of selectors. Their record speaks for itself and it appears patently unjust to disqualify them on account of their previously disadvantaged status.

For comparative purposes, looking at South Africa, which is closer to home and whose circumstances at some stage were similar to us, it is worth noting that the following were appointed as national selectors in the post apartheid era when they had not played for their national team: Gerald Majola, Mustapha Khan. Morris Garda, Joubert Strydom, S. K Reddy, Anver Mall, Rushdie Majid, Haroon Lorgat, Winkie Ximba.

In view of the foregoing, ZC does not consider that it is proper for the Commission to require it to comply with the directive. Doing so would be in violations of the provisions of the ZC constitution and in breach of contractual obligations.

Further, the actions of the Commission, in that regard, would be in violation of Article 2.9(B) of the ICC Articles of Association which prohibit government interference in the management of the affairs of the member associations.”