Thursday, June 2, 2011

Constitution Review

Guest post by CLAWS

Before amending a constitution, it is important for people to understand what they are supposed to be amending. The current constitution of Leopards can be downloaded here or by clicking the link http://www.mediafire.com/download.php?59sha1smes8roca
 
It has been proposed by the Executive Committee of the club through an announcement made through this link that the club intends to amend the same and that the proposed draft constitution can be accessed here or by clicking the link http://www.afcleopards.net/assets/files/AFC%20LEOPARDS%20CONSTITUTION%202011%20revised.pdf

CLAWS, a Leopards Supporters Trust, having gone through the proposed constitution, makes the following observations about the proposed amendments. 


Pg
Clause
Comments
Front

Replace word AMMENDED with AMENDED
1
Preamble
This preamble is unnecessary and should probably be deleted. 

Further, the references to AFC Leopards community, AFC, AFC Leopards should all be uniform so that it remains AFC Leopards Sports Club (‘the Club’).

The word community is not defined anywhere in the document.
2
Name
This clause seeks to replace the word ‘Club’ with ‘Society’. It is an unnecessary amendment as the full name of the club is AFC Leopards Sports Club. Section 2 of the Societies Act defines a society to include a club so there is no need to use two separate terms. In any event, for consistency, some parts of the document have referred to the word ‘Club’ such as Clause 3(a), the last word.
2
Club Colours
This is not necessary. The colours of the club are a marketing function of the club. The team also plays in other kit such as red and black and others which need not be mentioned in the constitution.

To the extent that colours have different shades and what may be cyan, cobalt blue, sky blue, denim, international Klein blue duke blue can all be taken as blue. It is better for the colour to develop as an identity rather than be forced by way of a constitution.
2
Objects
Firstly, the objects of an organization should be different from the aims of the organization and should be distinguished from the methods of doing the activities of the organization. ‘Why do we exist as a club?’ is the question that should be answered by the objects.

Providing good institutional governance structure as per 3(h) for instance, or gender parity under 3(j) is not the aim of the club. This should be deleted in addition to 3(i) which is also a method rather than aim.

Under 3(b) add the letter ‘s’ to the word ‘meeting’

3(k) is interesting as it provides for a method of fund raising for the club. This could be acceptable but there are issues of accountability that arise, together with the added headache of how a society manages a Collective Investment Scheme or whether it should be done by a company.

There is a deletion of the clause that gives the Club powers to undertake all other related services. I see no need for the deletion of this clause which would have been better than some of the added clauses that are mere methods rather than objects.

3
Membership
The current membership categories are life and ordinary. It has been proposed that the membership be divided into three, super, premium and standard. This is quite unnecessary.

What should have been done is to increase the amounts payable under the current two types of membership. Life membership can be pegged at a figure of say Kshs. 30,000 whilst Ordinary could be put at a figure of say Kshs. 1,500. These are merely administrative amounts. The club isn’t selling anything for you to become a member.

The members can be on equal footing and all have the right to attend and vote at the meetings of the Club.

The club can raise the other funds separately such as the merchandise indicated under the ‘benefits’.

A constitution is not a marketing document and therefore it is unnecessary to have benefits listed after each category. We have to avoid a scenario of having to amend the constitution frequently. Therefore any references top benefits should be deleted.

Further the drafting leaves a lot to be desired. There is use of (i) and therefore making reference is difficult. Different characters should be used such as (A)(a)(I)(i) instead of repeating the (i).

Standard Membership is used in one heading when it refers to Super membership.

Some abbreviations have not been defined such as KPL. There is no need to refer to a particular league as the circumstances may change such as the league changing names (previously it was Kenya national Football League, Super League) or the fortunes of the club may change and we play in a lower tier.

The rest of the document is untidy with references such as ‘shall pay Kshs. 5,000 (five thousand only) per year’ instead of the better sounding ‘shall pay an annual fee of Kenya Shillings Five Thousand (Kshs. 5,000)’.

There is also no consistency on the amounts, such as having words followed by figures in brackets. For instance 4(c) on the payments to get the constitution talks about ‘Kenya shillings 100’ instead of ‘Kenya Shillings One Hundred (Kshs. 100)’ as it should be.
4
Membership
Clause 4(b)
There could be some contradiction with 4(h) as it anticipates election of persons into office when they haven’t paid the fee requires to contest the elections.  Unless reference was made only to co-opted members.

Membership
Clause 4(d)
The reference to the secretary should be Secretary General for consistency.

Membership
Clause 4(e)
There is no need to depart from the provisions of the previous constitution at Clause 3(7) and (8)
5
Membership
Clause 4(g)

Compare the old

http://3.bp.blogspot.com/-txQB7dRrROc/TedSy3_iqOI/AAAAAAAAAc0/UV3iVRWvhm8/s320/image010.png

and the proposed

http://3.bp.blogspot.com/-2wCXp_C0Mjg/TedS78ceE3I/AAAAAAAAAc4/DiHz6bRTgNU/s320/image011.png

Whilst the former talks about the possibility of cessation (use of the word ‘may’) the amendment wants to introduce mandatory cessation by using the word shall and the word ‘automatically’.

Whilst they both may be talking about the same thing, it is important to note the tenor of the statements.

5
Membership
Clause 4(h)
Whilst it makes sense to have persons seeking leadership positions pay some amount into the club, this should be part of the Electoral Code that can be attached to the document. In my view, the club should not be minting money from the contestants, Instead, the practice should have been top ask the persons contesting to provide a bank guarantee for a certain amount as they are in a leadership position that means they will owe the members a fiduciary duty which if breached should have some consequences.

Again, this is one of those populist and not well thought out additions.

5
Membership
Clause 4(i)
The Societies Act is very clear on the amendment of the Constitution of the club. It is not necessary to state a time frame for amendment. Any of the clauses of the constitution can be amended. By putting a limitation that the constitution should be amended after ten years can be reason to challenge it if it is amended after five years. This is undesirable and another not well thought out introduction to the constitution.

The clause on amendment of the constitution should be enough.
5
Office Bearers
Clause 5
This clause seeks to increase the term of office of the elected members to three years. The AGM is scheduled to be held in June of each year which would be mid season now that the country isn’t following the FIFA calendar of league matches being held from August to May.

Whilst there is appreciation that an office needs to have a plan that it can implement, the proposed term of three years is very long. This should be reduced to a term of two years or maintained at the term of one year so that the performances of each office are keenly monitored and there is no being saddled with an ineffective office for too long.

People who argue that there will be disruption of programmes should know that the reason such disruptions occur is where there is no proper handing over to the next office. Leopards has been operating like a village team where each person who comes into office starts his own website, his own logo and there is no proper handing over.  We should instill discipline and adherence to the constitution so that we do not have the sort of characters who want to stay in office for too long under the guise of being given time to implement their manifesto.
5
Duties of Office Bearers
Clause 6
Curiously, the duties of the Chairman have been reduced to merely chairing meetings.

The current constitution reads:
http://2.bp.blogspot.com/-MYgbQTmt2W0/TedTIw82bjI/AAAAAAAAAc8/0IJd9YGMXQg/s320/image012.png


The Chairman has the duty to ensure that the club is properly managed and carrying out its objects (or objectives). In the amendment, the duty to ensure the club is properly managed is deleted!

http://1.bp.blogspot.com/-nVILiOpkUqc/TedTPE6ZljI/AAAAAAAAAdA/i1ZSq0Y99Kc/s320/image013.png

For the duties of the Secretary General, the amendment removes the requirement for the decisions reached by the Chairman and Secretary General to be ratified at the next meeting of the Executive Committee! It is unclear why anyone on the Executive Committee would want to vote on such an amendment that takes away the power to confirm if the decision made is correct and justifiable and worth ratifying.

With the club contemplating what is being called a Secretariat, it not clear if the Secretary General shall be keeping the minutes and records of the team at the Secretariat.

If the Secretary is responsible for the official correspondence, should we therefore assume that any postings on the website that are currently done by the CEO as official communication shall cease and only those by the Secretary General shall be considered. It is apparent that even now, there are conflicts between the Secretary General and the CEO and this proposed constitution seeks to do nothing about it.

6
Executive Committee
Clause 7
The proposed constitution seeks to increase the number of the executive Committee to fifteen made up of the 8 office bearers, 1 CEO, 3 committee members and another co-opted 3 members.
7
Secretariat
Clause 8
The establishment of the Secretariat and the creation of the office CEO may create some friction. It is however a good idea for the club to have an office and the old constitution provides for the registered office of the club.

Just because the previous regimes have failed to comply with the law does not mean that the constitution has to be amended.

Some clauses such as 8(iv), which says, the CEO shall be answerable to the Executive Committee through the Chairman as a direct report does not make sense.

There has been a suggestion by a fan on the Facebook Branch wall that instead of having a CEO, the club should just make a provision that the Office bearers may incorporate three members who are specialized and have some sill such as Marketing, Accounting and any other field so that they can make contributions to the Executive Committee during the meetings and they could be paid a stipend for that.

Another suggestion is that the CEO office be established and there be a clear demarcation of duties between the CEO and the Secretary General to avoid frictions that have existed between the CEO and the Secretary General (Micah and Asembo or Richie and Bukachi). Surely, minimal standards such as advertising for the post and properly interviewing candidates for a post of CEO should be hard. The CEo can then run the club much as a Managing Director to whom a Board of Directors delegates its functions.

8
Branch Network
Clause 9
Whilst the Societies Act allows the formation of branches, the way the branches are being introduced in the proposed constitution leaves a lot to be desired.

There is nothing to gain by having a limit of country branches. The geographical branches do not augur well as the club may not be having support across the country for instance in parts of the country that support a rival team.

Setting rules for the members of the branches also does not augur well as the branches should be allowed to have their own regulations or by laws. There is no need to have a set number of officials if the Branch cannot afford to have it.

Attempting to control the branches through the constitution may send out the wrong message that the Executive Committee is more interested in affairs of the branches than that of the team. The branches should be treated as partners of the team rather than subjects.

Clauses on finances seem to dominate the constitution provision on branches such as the percentages of sharing funds collected (instead of the profits that may be made).

The rest of the Clauses need to be relooked to see the way the relationship of the branches can be addressed so that they bring in members of the club instead of obsessing with the control of the branches.

The other way to look at it is to have a Schedule of By Laws for the Branches and the procedure on application for recognition.

There are also some typos such as Clause 9(b)(ii) which misspells the word ‘minimum’ as ‘minimun’
10
Procedure at Meetings
Clause 11(c)
For the election of the Office Bearers, the same can also adopt a separate Schedule that will have By Laws for the Electoral Code.

This is where any requirements for a guarantee and other procedural requirements of candidates can be spelt out. As it is, the proposed constitution does not address this in detail.
10
Trustees
Clause 12
This retains a clause that was in the previous constitution which was also always ignored. The persons who run the club should be aware that they can face criminal sanctions if they ignore provisions of the constitution. The Societies Act is very clear about this.

The Electoral Code should therefore also make provision for the election of the Trustees. These Trustees should follow up on some of the properties of the club that have been wasted or which have not been duly registered in the name of the trustees of the Club or the Club itself.
10
Auditor
Clause 13
The club has over the years disabused and ignored this clause. It is not enough to have a constitution but a constitution that is respected by office bearers.

Members need to be sensitized on this so that they can look through the audited accounts and can keep the Executive Committee on its toes on the utilization of funds. The tendering procedures at the Club have to be above Board. The bus that we hire for players, the hotels that the players sleep in, the training ground that we use all have to be taken after proper procurement procedures so that there is no underhand deals.

11
Funds
Clause 14
The sequence of payment is all wrong. The playing unit should take precedence over the secretariat in payment of salaries. However, the clause is reasonable pending the decision on the establishment of the secretariat.

Theft of Club Funds that is implied under Clause 14(e) should be met with stern criminal action against any official who does not account for the funds. Any payment that a member makes to the club whether it is in buying of merchandise, or in buying a ticket or paying membership fees should be accounted for. Supporters groups should therefore be on watch so that any wastage is minimized. Sponsorship funds should also be properly accounted for.

11
Amendments
Clause 15
It is not clear from the drafting whether the two thirds are the paid up members or the two thirds of the quorum present at the General Meeting.

Recently, Leopards conducted registration of members where supposedly 20,000 members were registered. It is not clear if the current Executive Office has kept the Register of all this members.

How the amendment of this proposed Constitution shall be conducted shall be crucial so as to avoid a case where any dissatisfied member who holds a membership card goes to court to challenge the amendment.

12
Transition
The clause is laudable so that once the constitution has passed, it does not automatically grant the current office a three year regime as a previous office had tried to do.

This is why making amendments should be taken seriously as there could be another office that comes in and members have to know they will be in office for three years.

20
Repeal of Previous Constitution
It is again unnecessary to state that the constitution in place is namely Abaluhya Football Club since the club changed names and by so doing, the constitution had already been amended automatically to reflect the new name. Gazette No. 335 of 30th January 1981 at page 145 confirmed the change. There is therefore no more need to refer to Abaluhya Football Club.

http://2.bp.blogspot.com/-SdDsbRXN-MQ/TedTsEHQwuI/AAAAAAAAAdE/LWjtiD0xSo0/s320/image009.jpg


Once a certificate of change of name has been issued, there is no need to state that the constitution currently in place is named Abaluhya Football Club.



 

Our view is that the current constitution needs to be taken as it is and then amendments be proposed on each and every clause rather than a complete overhaul of the constitution. There are provisions that can be amended such as those of the figures mentioned as inflation and rising costs mean that the figures indicated in the old constitution cannot stand today. But for each proposed amendment, there should be reasons given so that people can understand the reasons for the amendments.

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