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11.04.2007 Football News

WHAT IS CONFLICT OF INTEREST

By Kwesi Nyantakyi

It is the failure to adhere to the prohibitions governing conflict situations that may amount to an infringement of the rules

A Conflict of interest situation arises when an office holder places himself in a position that results in a rivalry between his personal and official interests.

The rule derives its roots from the common law rule of natural justice, which postulates that no one should be a judge in his own cause. (Nemo judex in causa sua)

The rules on conflict of interest have been given elaborate expression in all legislations, statutes, rules and regulations bordering on corporate governance.

The constitution of the republic of Ghana, The companies code, the Civil Service Act, and all other Acts of Parliament setting up Governmental agencies have provided room for the rules on conflict of interest.

Conflict of interest is not an eccentricity or an aberration per se.

It is the failure to adhere to the prohibitions governing conflict situations that may amount to an infringement of the rules.

Under Ghana corporate law, an officer of a company or a corporate body may not be faulted for being interested or having an interest in a given case within the set up of the corporate body.

However, in a consideration of a given case in which the official has an interest, the official is in duty bound to declare his interest.

Such a declaration may lead to the officer being requested to excuse himself from all deliberations relating to the subject matter.

In some cases, where the company thinks that the presence of the officer will not affect the decision making process, he may be allowed to participate in the deliberations.

Conflict situations may be mitigated by avoidance, third party evaluations and the adherence to a certified code of ethics.

One main consideration in all cases of conflict of interest is the principle of DISCLOSURE.

There must be a full disclosure of interest by officers in all transactions in which they are interested.

It is therefore an erroneous and fallacious conclusion to surmise that there is an automatic case of a conflict of interest anytime an issue about a company and its interested officers arise.

If the rules on conflict of interest were that wide and unrestrictive in their application almost all public officers in Ghana will be caught in the web.

In the famous Sallah case, the Court of Appeal considered a preliminary objection which sought to disqualify a member of the panel of judges who presided over the case on the grounds that he played the game of tennis with the Plaintiff who was his friend and distant relative.

The Court ruled that in Ghana where everybody is related to everybody else it would be inappropriate to disqualify a judge from sitting on a case merely because he is a distant relative of a party.

Many judges in Ghana will be ineligible to preside over several cases on that premise.

There are examples of companies in Ghana where some directors are legal advisors or financial or management or tax consultants of the said companies.

A case of conflict of interest may be presumed in such cases but the defect is usually cured by the disclosure of interest by such directors.

The only prohibition against dual office holding is the one who is both a director and an auditor of the same company.

If you stretch the meaning of conflict of interest to the limit of perception only, lot of injustice, unreasonableness and absurd consequences will be reached by disqualifying several well-meaning persons who would otherwise be eligible to hold public offices in Ghana.

It is against this background and context that the recent discussions about a conflict of interest situation involving the president of the Ghana Football Association must be understood.

There is a school of thought that argues that the President of the Football Association should not be affiliated to any club in Ghana either as a Shareholder or a Member of Management.

The fear in that position is that officials of the GFA will favour his club.

That view may be right only in a situation where there are no rules and regulations governing various aspects of the game and everything subjected to the whims and caprices of the FA President. Alas, the reality is different.

The FA is governed by a well laid out rules and Regulations with clearly defined structures and institutions.

It is practically impossible for any single individual to be favoured on account of the network of his relationships and roles. The same legal and institutional framework has been drawn up for the management of football right from FIFA to the national associations.

At the global level, Mr. Sepp Blatter is the President of FIFA. He is a Swiss.

Switzerland is a Member of FIFA and takes part in most FIFA organized competitions.

There are officers responsible for various aspects of FIFA's work.

Mr. Blatter has no veto or overbearing influence over the organs of FIFA and their decisions.

The same practice pertains in CAF. Alhaji Issa Hayatou is a Cameroonian. He is also the President of CAF.

There are defined structures and mechanisms in place to address all issues within CAF. He cannot be accused of being in a conflict situation because CAF is ruled by law and not by man.

The structures of CAF and FIFA are replicated at the National Associations. Membership of most football associations is open to clubs, women's football, coaches, and referees. and others.

Officers elected to run football associations are chosen from representatives of members of the Associations.

Presidents and Executive Committee Members of most football associations worldwide are elected from the ranks of the clubs and other members of the FA's.

A few examples from Africa and Europe may provide some illumination on the issue.

Jacques Bernard Anouma is the President of the Ivorien Football Federation. He is also the President of Jeunesse Club d'Abidjan, a premier division club in Ivory Coast.

Mr. Tata Avlessi Adaglo is the President of the Togolaise Football Federation. He is also the President of Union Sportive Masseda, a premier division club in Togo.

Mr. Iya Mohammed is the President of the Football Association of Cameroon. He is also the President of Cotonsport de Garoua, a premier division club in Cameroon.

Mr. Irvin Khosa is the vice President of the South African Football Association (SAFA). He is also the President of Orlando Pirates, a premier division club in South Africa.

Kaizer Motaug, the President of Kaiser Chiefs is an Executive Member of SAFA.

David Dein of Arsenal and Franz Beckenbauer of Bayern Munich are the vice Presidents of the English and German Football Associations respectively. Some of the gentlemen are in fact owners of their clubs.

The practice of club owners, managers or representatives holding elective positions on the Football Association including the office of President is not exceptional to Ghana.

A lot of examples abound in several jurisdictions across the globe. The rational for the practice is well thought out. Clubs are members of the Football Association.

The communality of interest among the clubs is association football.

Together as one whole the clubs have given unto themselves a set of rules and regulations that are intended to regulate their conduct and safeguard their interest.

Associations will usually elect one of their own to lead them because their members or their agents understand and appreciate the philosophical foundations of their creation and existence, aims and objectives, expectations and aspirations for the future.

That is why the President of the Ghana Union Traders Association is a trader, the President of Ghana National Association of Teachers is a teacher, the President of the Ghana Journalists Association is a Journalist and yet still the President of the Sports Writers Association of Ghana is a Sports Journalist.

The President of the Tailors and Dressmakers Association is a Tailor/Seamstress, and the President of the Ghana Bar Association is a Lawyer. The list is endless.

The President of the Ghana Football Association cannot be taken outside the family of football. He must be a club owner, Manager or other official or a representative of any other member of the FA.

The President is not supreme. It is the statutes, rules and regulations of the Association that reign supreme. We are all subject to the dictates of the Statutes of the Association.

No single individual can gain favours by virtue of your office in the Association.

It therefore appears that the alarm bells being rang drawing attention to the possibility of a conflict of interest in the office of the President being held by a club owner or representative is baseless.

Most previous FA Presidents and Executive Committee members were all affiliated to clubs and yet no alarm bell was rang at the time.

They include Mr. Ackah Yensu - Vipers, Nana Sam Brew Butler - Dwarfs F/C, H.P. Nyametei - Hearts of Oak and S.K. Mainoo - Asante Kotoko.

Clubs of FA chairmen/Presidents have won, drawn and lost matches on merit.

Their clubs have been subjected to the same rules and regulations of the Ghana Football Association and its disciplinary processes without fear or favour.

Will the rules and regulations then change to favour All Stars because of Kwesi Nyantakyi? The answer is an emphatic NO.

All Stars Football Club did not suddenly qualify for the premiership. It started as a second division club in Wa and gained promotion to the First Division before qualifying after the just ended National Middle League Competition.

During the campaign in the second and First Division, the club won, drew and lost matches under the prevailing rules and regulations of the GFA without regard for the position of the President of the Football Association.

The club has a Management headed by Mr. Yunus Abdul Rahaman, a Wa-based contractor. The FA President does not hold any Executive position in the club.

Isn't it strange that the apostles of public opinion have suddenly changed their position on an issue that they advocated with passion.

People within the set up of the football association were chastised as being charlatans and/or hangers-on because they did not own clubs but acted merely as Accra representatives and so on.

The apostles led a campaign to the effect that only people who had invested material resources in clubs should be encouraged to run the football association.

Earlier this year when Mr. Tata Avlessi Adaglo was elected President of the Togo Football Association they commended him highly for reportedly investing US$6m in football and extolled his standing as setting a standard for people who should be running FA's.

They then extended an invitation to persons who had invested heavily in the game like Alhaji Sly Tetteh to consider taking up elective positions on the FA.

What has suddenly changed that the President who has invested in a club that has gained promotion to the premier division is being perceived as finding himself in a situation of a conflict of interest.

That unscientific swinging of positions like an unguided pendulum reduces such an important issue to personalities. It also smacks off malice and hatred.

How does a conflict situation arise only when one's club gains promotion to the premier division? All Stars is a Member of the Ghana Football Association whether as a First or Premier Division club.

If findings of conflict of interest – perceived or real - could not be made against the President when All Stars was in the First Division what new circumstances have arisen to create a conflict situation?

We must discuss issues dispassionately and ensure that as public servants we provide the public with a fair objective factual account of events rather than our parochial personal interests which have no place in this business.

Cheers!!

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