The Sunday Mail
Sports Reporter
THE International Cricket Council’s decision to suspend Zimbabwe from its membership has torched another storm in a domestic game already consumed in flames stemming from internal battles and serious allegations of maladministration.
Youth, Sport, Arts and Recreation Minister Kirsty Coventry as well as the Sports and Recreation Commission have remained adamant that the move to suspend the Zimbabwe Cricket board did not amount to government interference. A detailed case has been submitted to the ICC and below are excerpts from the paper.
“The SRC considers that on demonstrable precedent alone, there exists, at the very least, an inarguable case for ‘acceptable non-compliance’ in respect of the present circumstances of ZC, and that as such, suspending ZC’s membership, or its funding from the ICC, would not, with respect, be reasonably justified nor be in the best interests of the game. The SRC for its part, and to the extent that it may be required to do so, undertakes to ensure that ZC fulfills all of its ICC sanctioned commitments during the tenure of the interim committee which, in any event, ends not later than 15th September, 2020.
The SRC’s statutory mandate is to register, regulate and supervise national sporting associations such as ZC. It does this by ensuring that these national sporting associations adhere to their registered constitutions.
Matters relating to the controversies dogging the ZC provincial elections were brought to the SRC board’s attention.
There were allegations of fraudulent electoral processes, and in one instance, a court had nullified the elections in Mashonaland Central province. The board was able to establish factually, that the notice convening ZC’s elective annual general meeting was defective. It had not been issued in accordance with ZC’s own constitution which provides that: The AGM shall be convened by a proper notice given to all provincial associations in accordance with this constitution, at least 21 days prior to the holding of the AGM, with a copy of the agenda and the latest audited financial report.
This had not been done at all. It was for this principal reason, apart from all of the other controversies engulfing ZC, that the SRC addressed an urgent letter to ZC, directing that it suspends its AGM until further notice.
ZC did not respond immediately. Instead they made immediate contact with the ICC’s incoming CEO, asking for guidance in respect of what was put across as ‘Government interference’ with its affairs, and stating that they were, in any event, proceeding with the meeting.
The ICC did not respond immediately. However, ZC insinuated to the Press and the delegates gathered in Victoria Falls that the ICC had given the greenlight for the meeting to proceed notwithstanding the SRC directive.
It was on the back of this ‘greenlight’ that the delegates resolved to continue with the AGM.
Under Zimbabwean law, and as indeed is the case in most Commonwealth jurisdictions, “…the failure to convene a meeting properly invalidates it. Omission to give notice, or proper notice, of a meeting to one or more persons entitled to receive notice invalidates the proceedings of that meeting.”
In short, ZC’s failure to abide by its own constitution with regard to the form and manner of convening an AGM rendered the notice irregular, and the proceedings at the AGM irregular, including the election of board members.
It was for this reason that the SRC then wrote to the ZC on the 17th of June, 2019, requiring it to explain why it had ignored a lawful directive to suspend its AGM in light of reported irregularities. The essence of ZC’s response was that if it had abided with the SRC directive, it would have been in breach of its obligations to the ICC to ‘resist’ Government interference.
The SRC considered that this response did not in any way provide lawful justification or excuse for ignoring its directive, taking into account that ZC still had up to September 15th, in any given year, to convene or re-convene a proper AGM.
It was on the basis of this intransigence, giving rise to an irregularly appointed Board of Directors, that the decision was made to suspend the entire ZC board, as well as the acting managing director, on the 19th of June, 2019
The SRC’s decision to suspend the ZC board was deliberate in emphasizing to the suspended directors that they had a right to appeal to the Administrative Court in terms of Section 32 of the SRC Act, in the event that they were not happy with the decision to suspend them.
They filed such an appeal on the 24th of June, 2019. The appeal is pending. The noting of an appeal to the Administrative Court does not suspend the operation of the decision appealed against. It is perhaps for this reason that the suspended directors sought, on an urgent basis, an interdict (injunction) to suspend the operation of the SRC’s decision, and to have the High Court confirm that pending the outcome of the Administrative Court appeal, they could remain in office. The application was rejected by the High Court on a number of grounds.
Pertinent to this position paper was the finding by the High Court that the SRC had in fact acted in accordance with its own Act in respecting the rights of the suspended directors to be heard before giving effect to the suspension.
The learned judge in this respect stated:-
The letter of 17 June 2019 was the acting chief executive officer’s response to the directive to suspend the elective annual general meeting. The acting chief executive officer did not address that letter in his individual capacity. He addressed that letter on behalf of Zimbabwe Cricket and the applicants. Therefore, it cannot be said by any stretch of the imagination that applicants’ right to be heard was violated. It is the disclosure of these communications that the applicants have suppressed in the present application. They have clearly not been candid with the court on this aspect. It is critical to emphasise, in this respect, that Tavengwa Mukuhlani had deliberately under oath, sought to mislead the High Court by failing to disclose that the SRC had in fact complied with the law before making the decision to suspend him and his fellow ZC directors, most of whom had deposed affidavits supporting this intended deception.
Edward Rainsford, one of the suspended directors (but not party to the deception), has since, through his lawyers, distanced himself from this irregular meeting, pointing out that he was not aware of his nomination as a director of ZC, and had not accepted any such nomination, and in fact rejects any such nomination.
His letter is a further example of the irregular nature of the elective annual general meeting.
Despite media reports, the suspended directors have not, to date, filed any appeal against this High Court decision, and any such appeal will not, in any event, suspend the operation of the SRC’s decision.
Most of the ZC employees have not been at work. They are being prevented from doing so by some of the suspended directors. There is in existence, and tendered to the High Court during the hearing, a recorded conversation with a ZC security guard in which he confirms that an instruction was issued by the ZC security manager to inform staff coming into work to go back home until further notice.
The allegation has been made that the Government of Zimbabwe has unilaterally interfered with ZC’s affairs. With respect, the SRC does not consider this to be the case, and rejects any such allegation in its totality.
As has been explained, the SRC is a statutory body created by an Act of Parliament. It is not ‘Government’ in so much as the Parliament of Zimbabwe cannot be considered to be Government, nor indeed, it must be said, the Courts of Zimbabwe. There are no politicians or civil servants on the SRC board.
The decision to suspend the ZC board is not subject to ministerial or Government approval. It is only subject to review by the Administrative Court. Whereas certainly the interim committee is appointed by the Minister of Sports, she can only make that appointment on the recommendation, or after consultation, with the SRC board. There is not a single politician or civil servant on the appointed interim committee, made up mostly of cricket people, save for the exception of one member who is nonetheless heavily involved in sport. If the SRC is considered to be a ‘Government, public or quasi-public body’, then the logical and extrapolated conclusion must inescapably be that the ICC long condoned interference by the Government of Zimbabwe by continuing to allow a politician and a member of Parliament, Tavengwa Mukuhlani, to sit on the board of ZC as its chairman. The same conclusion could be applied to the fact that there was Government interference when the Reserve Bank of Zimbabwe involved itself in the finances of ZC through the restructuring and taking over of its US$14 million debt through ZAMCO. Clearly, however, the point is that it is apparent that the ICC takes into account other considerations, including an individual member’s particular circumstances, before determining what ‘Government interference’ is acceptable, if indeed it can be termed that.”
Acceptable non-compliance
ln this respect, therefore, and ultimately, even if the ICC holds the firm view that there has been Government interference, by whatever name or formulation, then the point is made that there exists sufficient precedence to establish a case of ‘acceptable non-compliance’, borrowing from the term coined by the former ECB chief executive, David Collier.
Certainly, this appears to have been the case in the following instances, where conceivably it was apparent that there had been a breach of the particular members’ obligations under Article 2.4D of the ICC constitution regarding ‘Government interference’, if the wider meaning of the term is applied.
India
On January 30th, 2017, the Supreme Court of India nominated a four-member committee of administrators to look after the administration of the BCCI in order to implement the Lodha Committee reforms.
Added to this is the fact that the BCCI has long indicated that it will not play a bilateral series with Pakistan unless the Indian central government allows it to do so. There must be cogent reason for the ICC not taking action in respect of the above violations of the aforesaid Article 2.4D, and whatever those reasons might be, they obviously constitute acceptable non-compliance.
Pakistan
The Pakistan Cricket Board’s constitution allows the Prime Minister of the country to nominate its chairman, as is reported to have recently occurred. On the face of it, this constitutes a violation of the ICC’s articles. Again, however, inaction appears to have been motivated by applying the principle of acceptable non- compliance, particularly when one takes into account that the individual concerned is in any event a highly respected and experienced member of the cricket fraternity and a former chairman of the ICC.
The point is emphasized that the interim committee is constituted of persons with a background in sport, in particular cricket, and that it is abundantly clear that this committee has been appointed out of a genuine desire to fix Zimbabwean cricket once and for all.
Sri Lanka
On May 31st, 2017, the country’s Sports Minister appointed an interim committee known as a Competent Committee for Sri Lanka Cricket owing to an impasse over the holding of its elections. There is an obvious parallel with what has happened in Zimbabwe between the SRC and the ZC board.
Indeed, just as is intended by the interim committee in Zimbabwe, the competent committee in Sri Lanka saw to it that credible elections were eventually held eight months later.
It is clear that the ICC deemed developments in Sri Lanka as acceptable non-compliance.
New Zealand
In December 2005, the government of New Zealand stated quite clearly that it would not allow the Zimbabwe cricket side to tour that country, citing grounds that were clearly political in nature. The tour was called off, and New Zealand cricket could only have escaped censure by the ICC upon the application of the acceptable non-compliance principle.
England
Zimbabwe’s tour of England in 2008 was cancelled upon the intervention of the UK government. This action was defended at the time by the then CEO of the ECB as acceptable non-compliance.
Australia
In 2007, the Australian government barred its cricket side from touring Zimbabwe. It in fact passed a law making it illegal for the team to tour. John Howard, then Prime Minister of Australia, acknowledged that this constituted government interference, and that his administration took full responsibility for it.
Numerous other examples abound.
The point, however, is not to engage in finger pointing, but rather to emphasize the fact that the ICC appears to have adopted the principle of acceptable non-compliance where government intervention in the affairs of several ICC members has been noted.
Assuming therefore that the SRC’s actions are considered as ‘government intervention’, there is little to distinguish its actions from that of the aforementioned examples.
If this submission is accepted as correct, which, with respect, it is, then the inescapable conclusion is that there exists no basis, based on the aforesaid precedence, for the suspension of Zimbabwe Cricket’s membership of the ICC, or indeed its funding.
As is express in the terms of reference for the interim committee, the SRC has been clear in directing the committee to seek the active assistance and participation of the ICC in the discharge of its mandate.
It is the SRC’s desire that the interim committee carry out its duties in consultation and agreement with the ICC, particularly in relation to the forensic audit and the supervising of new controversy-free elections.
The SRC is perfectly capable of recommending to the Sports Minister, the appointment of any persons seconded by the ICC as members of the interim committee should this be deemed desirable.
The SRC for its part, and to the extent that the ICC requires it, undertakes to ensure that ZC fulfills all of its remaining ICC sanctioned commitments during the tenure of the interim committee.
ICC is fully aware of the problems bedeviling the development of the sport in Zimbabwe. These can be put down to poor governance, including the presence of persons who have absolutely no appreciation of cricket and its administration in the corridors of Zimbabwe Cricket.
This is a fact. The results of this are there for all to see.
The SRC takes seriously its responsibility to ensure the continued viability of the game in Zimbabwe. It considers that its actions, no matter how unilateral in application, are consistent with the long term objectives of the ICC. ZC, given the relative size of the country, has been extremely well funded by the ICC in the past. It is in fact by far the best funded sporting discipline in the country, surpassing even football, Zimbabwe’s largest sporting discipline, by a considerable margin.
