SPORTS LAW: Government, Magogo differ on NCS, registration of federations

The general feeling, for years, has been that the running 1964 National Council of Sports Act is outdated and needs to be repealed.

The Ministry of Education and Sports struggled to lead the way for years until Budiope East Member of Parliament Moses Magogo tabled a Private Members’ Bill in December 2021.

Some say, government could have been postponing things deliberately in order not to over regulate sports.

“If a law comes under a legal regime of a country, it means it is subservient to the constitutional framework of that country,” our Columnist Ivan Ojakol, a Sports Lawyer and Partner at Matrix Advocates, shared.

“Therefore it will no longer be enough for sports to say ‘we are independent’ when government wants to look at certain things like accountability mechanisms?

Would we be looking at only money from government? It (new law) opens a can of worms as government could now look into money from international federations and other sources,” Ojakol explained.

Magogo, who has been serving as Fufa president since 2013, is however on record saying the current NCS Sports Act curtails the professionalization and commercialization of sports in Uganda. There was no way he was going to play the cat and mouse chase with government when he had an opportunity as MP to further his legacy by tabling The National Sports Bill – 2021, commonly referred to as the Magogo Bill and one with 72 clauses divided into seven parts.

Magogo’s move prompted government to ‘harmonize’ its own ideas with those of Magogo into what they tabled last July as The Physical Activity and Sports Bill, 2022. It has 75 clauses and has since been backed by The National Physical Education and Sports Policy written in September 2022 but still unknown to most stakeholders.

Now both bills are before the Committee on Education and Sports, which is tasked with coming up with one popular enabling law.

Let us examine their attempt to reform NCS and incorporate national sports organisations.

Establishment of NCS

Both bills endorse the continued existence of The National Council of Sports established under the yet to be repealed Act as a body corporate with perpetual succession and a common seal and may, in its corporate name; acquire, hold and dispose of movable and immovable property; sue or be sued; enter into any contract and other transactions.

The departure starts in the functions of Council, where Magogo wants NCS to fund the activities of not only national teams and athletes but clubs representing Uganda in international sports competitions too. The government bill erased clubs.

Magogo’s argument will be popular with federations, who will on Monday and Tuesday next week make their recommendations to the Committee, but the history of NCS’s struggles trying to fund national teams hovers over this argument.

Uganda Swimming Federation (USF) president Moses Mwase says “Council has showed that it can fund organisations like USSSA (Uganda Secondary School Sports Association) which are not registered so it is possible for them to fund clubs but it is not sustainable.”

Composition of NCS board

Both bills continue to envisage a NCS board led by a chairperson that is appointed by the Minister of State for Sports.

Magogo offers all board members a five year term renewable once but government differs by just one year. Government, however, wants the chairman to hold the position for a two year term renewable just once as is the current practice.

The bills want the national federations to either appoint (Magogo) or elect (government) a representative to the board.

Magogo, who says board members shall be paid by the entities they represent, wants the head of Uganda Olympic Committee (UOC) on the board. It should also have representatives from the ministries responsible for; Sports; Finance, Planning and Economic Development; Trade, Industry and Cooperatives; Gender, Labour and Social Development; Tourism, Wildlife and Antiquities.

For government – which says board members shall be paid as the Minister of Sports in consultation with the Minister of Finance may specify – want UOC to have an elected representative. They prefer representatives from the ministries of; Sports; Local Government; and Tourism. They would also want an elected athletes’ representative, plus representatives from the private sector and education institutions.

Definitely having these ministries represented on the leading sports board will help the industry have more backers for its needs. For example, district sports officers are grappling with land issues because local governments do not understand why sports facilities need to be protected.

Mwase says that having these representatives stipulated in the law sounds like the entities are being compelled to send representatives yet they should be impressed to.

For the elected representatives, the Minister would need to draw up regulations on how athletes, who participate in different disciplines, and federations can congregate to choose their leaders.

GS of Council

The general secretary (GS) of Council, government argues should be appointed by the board as has been the norm and he or she can be ex officio of the board with no voting rights.

Magogo prefers a GS appointed by the Minister.

According to Parliament’s website, when the UOC delegation led by Dunstan Nsubuga, their first vice president, appeared before the Committee on December 14, 2022, they argued Magogo’s proposal “would water down checks and balances at NCS.”

Quizzed on why by the deputy chairperson of the Committee, Hon. Cuthbert Abigaba, on why this would be the case, Nsubuga said, the GS “was best occupied by a technical person and not someone simply appointed,” adding that “issues of allegiance and professionalism would emerge when Council is making decisions.”

At least all agrees that the GS should have considerable knowledge and experience in commerce, finance, law, sports administration and should hold office for a period of five years and eligible for re-appointment for a one more term only unlike the current case that call for three year terms with no limits of renewals.

Our argument at SCORE is that the length of terms of office for all board members and the GS should be tailored to the Strategic Plan of NCS.

Registration of federations

The GS as the Accounting Officer and chief executive officer of Council essentially oversees the registration and incorporation of federations.

Invoking the NCS Statutory Instrument 2014 No.38, NCS under Nicholas Muramagi asked all federations to re-register with them in 2014. Fifty two federations have since been registered by the body, although kickboxing had their license and certificate cancelled last March by Bernard Patrick Ogwel’s secretariat over administration wrangles.

These national sports associations and federations are all incorporated and registered under various laws including; the Trustees Incorporation Act and the Companies Act, 2010.

Magogo says some are also incorporated under the Partnerships Act, 2010 and the Non-Governmental Organisations Act, 2016.

“The lack of uniformity in the registration and incorporation has resulted in governance and administration challenges including, lack of legal personality, multiple reporting and regulatory legal regimes, interference and lack of independence of national sports associations contrary to international sports governing body regulations, existence of numerous national sports associations regulating a single sports discipline, disputes and wrangles, wastage and mal-administration of the affairs and funds of national sports associations and federations,” Magogo writes in his memorandum.

For government, incorporation is straight forward as all federations’ applications for registration should be accompanied by a certificate of incorporation issued under the Companies Act 2012.

When successful, the certificate of registration issued under the proposed clause 32 (2) shall be valid for a period of one year and Council shall annually conduct a compliance test on a national sports federation to examine its compliance its own constitution and with the Act.

Where a national sports federation fails to comply with Councils’ directions, it is given 90 days to remedy its transgressions. And if it fails, the Board may appoint a person or committee to assume the management, control and conduct of the affairs of the said federation or its officer.

Federations in their nature should be a collection of associations – like referees, players, coaches – coming together to run a given sports discipline. But government seems to recognize federations as entities running a sport, which is also what is happening in practice – many of our sports bodies call themselves federations or associations at will.

Magogo is more elaborative on what NCS should register as entities that run national sports. He breaks them down into community clubs, national associations, national federations and national organisations.

First he says a person shall not operate a community sports club unless it is registered by the Council in accordance with this section. But his explanation of what a community club is, is vague. He, however, insists that the club’s members must prove that they are citizens of or residents in Uganda and that upon incorporation and registration, they be deemed a body corporate.

NCS has been treating clubs as the members that make up federations or associations. Asking clubs to register under NCS could be a strain and could lead to federations losing part of their relevance.

For a national association, Magogo says it must have presence in at least half of all districts of Uganda and that its leaders must be elected by a national delegates conference comprised of persons drawn from at least half of all districts of Uganda.

Going by NCS’s Monitoring and Evaluation exercise of 2021, this requirement could disqualify more than half of the current sports bodies as most are Kampala-based.

He says that the certificate of registration issued by NCS for associations should be valid for a period of one year and shall be renewed by the Council, upon payment of the prescribed fees.

Before he adds that the relationship between or among members of a national sports association shall be deemed to be a partnership in accordance with Partnerships Act, 2010. This kind of incorporation was not entertained by Council in 2014 as they argued association were not relating to do business.

But Magogo’s ultimate game now is to see money flow in the sports industry.

Magogo adds that Council shall only incorporate a national sports association desirous of becoming federation upon satisfaction that it has capacity to manage, develop, promote and regulate a professional and amateur sport discipline and has operated as an association for a period of one year.    

Upon incorporation, the federation incorporated shall be deemed a company limited by guarantee.

In simple terms Magogo argues that NCS should first register a federation or association or club before it gets it legal standing as a company or partnership.

“Registration should not be such a cumbersome procedure. Saying NCS ‘after incorporation a federation shall be deemed’ is creating a lot of unnecessary legal regimes,” Mwase argued.

In case of rejection during this registration process, government gives the applicants an opportunity to submit an explanation and to be heard in person or represented by legal counsel while Magogo says “a person aggrieved by the decision of the Council may, within twenty-one days from the date of the decision of the Council and upon payment of the prescribed fees, appeal to the tribunal (more on this in the future), whose decision shall be final.”

Magogo also envisaged the registration of other sports bodies, perhaps those running multi-discipline games like UOC or maybe sports in institutions like USSSA.

Both agree that these national bodies must seek the written approval of the Council prior to participating in international sports competitions; hosting international competitions or hiring a non-citizen to provide technical expertise.

Curious case of UOC

UOC derive their mandate and legitimacy from the International Olympic Committee (IOC) charter. But in Uganda they ‘incorporate in a vacuum' and both bills try to give them recognition and legal existence.

Magogo wants a representative of Council in UOC and the Minister – by statutory instrument – to prescribe the functions and management of the UOC. This Mwase argues that “the IOC charter does not allow for the laws of the land to designate who sits on UOC.”

Magogo also wants a representative from each of the national bodies governing an Olympics sport to sit on the UOC but Mwase says there is no room for such a huge executive. However, members of all Olympic sports disciplines usually serve in the UOC commissions.

Magogo concludes that national bodies existing immediately before the commencement of this Act should within six months from the commencement of this Act comply with the provisions of this Act relating to incorporation and registration of national sports associations or national sports federations and be issued with a certificate of incorporation or registration as required by this Act.

Government, however, says the terms and conditions including the rights and obligations upon registration of a sports federation immediately before the commencement of this Act, shall not be less favourable than those that applied immediately before the commencement of this Act.

Dates

*April 4, 2014: Date when the NCS Statutory Instrument No.38 came into force

*Magogo bill gazetted on December 10, 2021

*Government draft bill written on July 5, 2022

*Sports Policy written in September 2022

*December 14, 2022: UOC delegation appeared before Committee on Education and Sports

*Jan 30-31: Days federations are invited to the Committee on Education and Sports

Numbers

51 – Number of sports federations in Uganda

58 – Years NCS Sports Act has been running

72 – Clauses in Magogo bill

75 – Clauses in government bill

Magogo’s Key Points

-NCS should fund national teams plus clubs representing Uganda

-NCS board should get two five-year terms

-Board members should be paid by entities they represent

-UOC head, federations representative should be appointed to NCS board. So should representatives from Ministries of

Sports, Finance, Trade, Gender, Labour, Tourism

-Minister of Sports should appoint NCS GS.

-NCS, all Olympics sports disciplines should be represented on UOC executive

-Community clubs should be registered by NCS. Associations should incorporate as partnerships and federations as companies limited by guarantee

-All existing sports bodies should re-register with NCS in six months after passing new law.

Government’s key points

-Board members should get two four-year terms. But chairman two two-year terms.

-Ministers of Sports and Finance should decide what board members get paid

-UOC, athletes, federations should elect representatives to NCS board

-Board should have representatives from Ministries of Sports, Finance and Local Government