Sport and drugs : a critical analysis of the legal framework on doping in Kenya / Silicho Simiyu Soita. - Nairobi : Strathmore University, 2017. - Submitted in partial fulfilment of the requirements of the Bachelor of Law Degree, Strathmore University Law School

Abstract:

Doping has been inadequately provided for in law, policy and practice in Kenya over a long period of time. Proliferation of doping cases among Kenyan athletes raised doubts over the ability of the Kenyan legal framework on anti-doping to regulate the use of performance enhancing substances. This resulted into a sanction by the World Anti-Doping Agency.
This study seeks to critically analyse the Kenyan legal framework on doping and assess its suitability to curb the number of doping incidences among Kenyan athletes. Among the issues to be considered include: the sufficiency and efficiency of existing Kenyan anti-doping laws, factors impeding the application of these laws and finally recommendations to improve their applicability and efficiency.

Contents:

Chapter One-Introduction
Chapter Two: The Legal Framework On Doping In Kenya
2.1 Introduction
2.1.1 Sports Policy Framework
2.1.1.1 Drugs And Substance Abuse In Sports
2.1.2 Sessional Paper No. 3 Of 2005 On Sports Development
2.2 International Anti-Doping Legal Regime
2.3 National Anti-Doping Legal Framework
2.3.1 Legislations Relevant To Doping Before The New Anti-Doping Legal Framework
Chapter Three- Comparative Study On Anti-Doping Legal Frameworks
3.1 Introduction
3.2 Germany
3.2.1 History Of Doping In Germany
3.2.2 Role Of The Federal Government In Fighting Doping
3.2.3 The German Anti-Doping Legal Framework
3.3 South Africa
3.3.1 Lessons From The Comparative Study
3.3.2 Conclusion
Chapter Four- Suitability Of The Kenyan Anti-Doping Legal Framework In Regulation Of Doping
4.1 Introduction
4.2 The Constitution Of Kenya 2010
4.3 The Sport Act
4.4 The Anti-Doping Act
Chapter 5-Conclusion And Recommendations
5.1 Introduction
5.2 Findings
5.2.1 Treatment Of Doping As A Sports Rule Violation Rather Than A Crime
5.2.2 Need To Further Harmonize Laws Regulating Doping
5.2.3 Independence Of The Anti-Doping Agency Of Kenya (ADAK)
5.2.4 Establishment Of A Physical Anti-Doping Infrastructure
5.2.5 Public Awareness
5.3 Recommendations
5.3.1 Need For Enlightenment On Doping
5.3.2 Need To Ensure Independence Of ADAK
5.3.3 Establishment Of A Physical Anti-Doping Infrastructure
5.4 Conclusion
Bibliography
Books
Articles
Reports
Legislations
Constitutions
Acts Of Parliament
Foreign Acts Of Parliament

In July 2017 the Anti-Doping Agency of Kenya (ADAK) has reported an anti-doping rule violation against the Athlete Joseph Kariuki Gitau after his sample tested positive for the prohibited substance 19-norandrosterone. After notification a provisional suspension was ordered. The Athlete filed a statement in his defence and het was heard for the Judiciary Office of the Kenya Sports Disputes Tribunal.

The Athlete gave a prompt admission of the violation and stated that he had used once deca-durabolin, purchased from a pharmacy in Nairobi and administered intravenously.

The Panel finds that the anti-doping rule violation has been established and admitted by the Athlete. Therefore the Judiciary Office of the Kenya Sports Disputes Tribunal decides on 13 September 2017 to impose a 4 year period of ineligibility on the Athlete starting on the date of the sample collection, i.e. on 8 January 2017.

IAAF 2018 IAAF vs Jemimah Jelagat Sumgong
January 17, 2019

In April 2017 the International Association of Athletics Federations (IAAF) has reported an anti-doping rule violation against the Kenyan Athlete Jemimah Jelagat Sumgong after her sample tested positive for the prohibited substance recombinant human erythropoietin (rhEPO). After notification a provisional suspension was ordered. The Athlete file a statement in her defence and was heard for the Judiciary Office of the Kenya Sports Disputes Tribunal.

The Athlete admitted the violation and stated that she underwent medical treatment in the Kenyatta National Hospital in February 2017 for a severe bleeding due to a extopic pregnancy and that a blood transfusion and medication was administered. The Athlete asserted that the ectopic pregnancy condition is a taboo within her community and this cultural issue is also reason why she did not apply for a TUE.

On being asked by the Anti-Doping Agency of Kenya the Kenyatta National Hospital reported in June 2017 that the medical records provided by the Athlete were not authentic and that the Athlete did not undergo medical treatment in the Hospital in February for a gynaecological emergency as an ectopic pregnancy. There was no record that EPO was administered to the Athlete and EPO as medication was not the standard practice as treatment in the Hospital for ectopic pregnancies.
The Hospital stated that the Athlete only visited the Hospital in April 2017 for a second opinion consultation regarding the treatment of ectopic pregnancy and surgery she underwent in 2009.

The Panel finds that the test result established the presence of rhEPO, she failed to demonstrate that the violation was not intentional and failed to explain how the substance entered her system. Also the Panel finds that the Athlete attempted to deceive the Panel about her alleged medical treatment in the Hospital.

Considering the very serious nature of the violation and the Athlete’s degree of Fault the Panel of the Judiciary Office of the Kenya Sports Disputes Tribunal decides on 31 October 2017 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 3 April 2017.

On 18 October 2016 the Independent Tribunal Panel of the Africa Zone V Regional Anti-Doping Organization (RADO) decided to impose a 4 year period of ineligibility on the Athlete Ken Kirui after his sample tested positive for the prohibited substance betamethasone.

Hereafter the Athlete appealed the RADO decision with the Judiciary Office of the Kenya Sports Disputes Tribunal. The Athlete filed a statement with evidence in his defence and he was heard for the Appeal Panel.

The Athlete requested the Panel to impose a less severe sanction and argued that the anti-doping violation was not intentional because he had used an over-the-counter drug Celestamine containing Betamethasone as treatment for his allergies. In support the Athlete produced medical evidence about his allergies and the performed treatments. The Athlete argued that he was tested for the first time in his carreer, he mentioned his medication on the Doping Control Form, had received minimal anti-doping education and was unknown with a TUE.

The RADO admitted that the imposed sanction on the Athlete was too strict and too harsh because the Athlete gave a prompt admission, the violation was not intentional, he mentioned his medication on the Doping Control Form and was honest in his statements.

The Appeal Panel accepted the Athlete’s statement and finds that the Athlete established how the substance entered his system. The Panel finds also that the Athlete failed to apply for a TUE. Therefore the Appeal Panel of the Judiciary Office of the Kenya Sports Disputes Tribunal decides on 14 June 2017 to set aside the RADO decision of 18 October and to impose a 1 year and 3 month period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 21 July 2016.

In December 2016 the Anti-Doping Agency of Kenya (ADAK) has reported an anti-doping rule violation against the Athlete Shieys Chepkosgei after her sample tested positive for the prohibited substances androsterone, etiocholanolone and testosterone. After notification a provisional suspension was ordered. The Athlete filed a statement in her defence ans she was heard for the Judiciary Office of the Kenya Sports Disputes Tribunal.

The Athlete admitted the anti-doping violation and stated that the day before the competititon in Malaysia in October 2016 she suffered from strong pains in her body, used a tablet purchased in a pharmacy and knew that the drug would enhance her performance.

The Panel finds that the Athlete has admitted the violation and that the substance was used intentionally to enhance her sport performance. Therefore the Judiciary Office of the Sports Disputes Tribunal decides on 5 October 2017 to impose a 4 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 26 December 2016.

In 2016 the Anti-Doping Agency of Kenya (ADAK) has reported an anti-doping rule violation against the Athlete Florence Jepkosgei Chepsoi after her sample tested positive for the prohibited substance prednisone and prednisolone. After notification the Athlete filed a statement in her defence ans she was heard for the Kenya Sports Disputes Tribunal.

The Athlete admitted the violation and stated, supported by evidence, that she used the substance as prescribed medication for her condition. She stopped with the medication 2 weeks before the sample collection and only mentioned the use of substances on the Doping Control Form of the last 7 days as required.

The Panel accepted the Athlete’s statement and evidence and finds that the violation was not intentional and that she acted with No Significant Fault or Negligence. Therefore the Judiciary Office of the Sports Disputes Tribunal decides on 5 October 2017 to impose a 2 year period of ineligibility on the Athlete starting on 5 November 2016.

CAS 2017/A/5157 World Anti-Doping Agency (WADA) v. Africa Zone V Regional Anti-Doping Organization & Anti-Doping Agency of Kenya (ADAK) & Athletics Kenya (AK) & Sharon Ndinda Muli

Athletics (middle-distance)
Doping (19-norandrosterone and its metabolite 19-noretiocholanolone)
Balance of probability
Establishment of source of prohibited substance

1. The standard of proof of balance of probabilities requires an athlete to convince the CAS panel that the occurrence of the circumstances on which the athlete relies is more probable than their non-occurrence.

2. In order to establish under the World Anti-Doping Code (WADC) how a prohibited substance entered an athlete’s body, it is not sufficient for the athlete merely to protest their innocence and suggest that the substance must have entered his or her body inadvertently from some supplement, medicine or other product which the athlete was taking at the relevant time. Rather, an athlete must adduce concrete evidence to demonstrate that a particular supplement, medication or other product that the athlete took contained the substance in question.

In December 2016 the Africa Zone V Regional Anti-Doping Organization (RADO) has reported an anti-doping rule violation against the Kenyan Athlete Ndinda Muli after her sample tested positive for the prohibited substances 19-norandrosterone and 19-noretiocholanolone.

On 30 March 2017 the Sports Disputes Tribunal of Kenya decided to impose a 1 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. 6 December 2016.
The Athlete argued that she suffered from an heel injury and as treatment she used prescribed medication as possible source of the positive test.

Hereafter in May 2017 the World Anti-Doping Agency (WADA) appealed the decision of 30 March 2017 with the Court of Arbitration for Sport (CAS). WADA requested the Panel to set aside the decision of 30 March 2017 and to impose a 4 year period of ineligibility on the Athlete due to the Athlete failed to establish that the anti-doping violation was unintentional.

The Anti-Doping Agency of Kenya (ADAK) and the RADO confirmed that the Athlete had no TUE; that the Sports Diputes Tribunal made some errors and misapplied itself by shifting the burden of proof from the Athlete to the RADO; and the Athlete failed to explain the source of the prohibited substances in her system. ADAK and RADO rejected the claim that they are incompetent and misconceived.

In this case the Sole Arbitrator determines the following issues:
1.) The Occurrence of an ADRV and the Standard Sanction
2.) Burden and Standard of Proof
3.) Was the Athlete's ADRV intentional?
4.) Reduction Based on the Athlete's Prompt Admission?
5.) Sanctions

The Sole Arbitrator finds that the anti-doping rule violation was established and undisputed with a standard sanction of 4 years. The Athlete has the burden of proof and she failed to explain, on the balance of probability, how the prohibited substances entered her system or establish the source of the prohibited substances. The Athlete failed to demonstrate that the violation was not intentional and her prompt admission does not grant her automatically an reduction of the sanction from 4 to 2 years as WADA has not approved such a reduction.

Therefore the Court of Arbitration for Sport decides on 10 October 2017 that:

1.) The appeal filed on 30 May 2017 by the World Anti-Doping Agency against the 30 March 2017 Decision rendered by the Sports Disputes Tribunal of Kenya is upheld.
2.) The 30 March 2017 Decision by the Sports Disputes Tribunal of Kenya is set aside.
3.) Ms Sharon Ndinda Muli is sanctioned with a four-year period of ineligibility starting the date of her provisional suspension (i.e. 6 December 2016).
4.) Ms Sharon Ndinda Muli is disqualified from the Kenya Defence Force Championship on 29 April 2016 with all the resulting consequences including forfeiture of any medals, points, and prizes.
5.) All results earned by Ms Sharon Ndinda Muli after 29 April 2016 are disqualified, with all resulting consequences.
6.) The costs of arbitration, to be determined and notified to the parties by the CAS Court Office, shall be borne by the 40% by Africa Zone V Regional Anti-Doping Organization, 40% by the Anti-Doping Agency of Kenya, and 20% by Ms Sharon Ndinda Muli.
7.) The Africa Zone V Regional Anti-Doping Organization, the Anti-Doping Agency of Kenya, and Ms Sharon Ndinda Muli shall pay jointly and severally a total amount of CHF 3,000 (three thousand Swiss franc) to the World Anti-Doping Agency as contribution to its legal costs and other expenses that it has incurred in these proceedings.
8.) All further and other requests for relief are dismissed.

Strategic Plan 2016/17-2019/20 / Anti-Doping Agency of Kenya (ADAK). - Nairobi : ADAK, 2017

Contents:

CHAPTER 1 INTRODUCTION
1.1 Background
1.2 Mandate and Functions of ADAK ADAK Board
1.3 Vision, Mission and Core Values
1.4 Rationale for Preparing the Strategic Plan
1.5 Linkages with other Policies and Strategies
1.6 Challenges facing Anti-Doping Initiatives
1.7 Organization of the Strategic Plan
CHAPTER 2 SITUATIONAL ANALYSIS
2.1 Introduction
2.2 Extent of Doping in Kenya
2.3 Past Anti-Doping Coordination Initiatives
2.4 Strengths, Weaknesses, Opportunities and Threats (SWOT SWOTSWOT) Analysis
2.5 PESTEL Analysis
2.6 Stakeholder Analysis
CHAPTER 3 STRATEGIC MODEL FOR ADAK
3.1 Introduction
3.2 Strategic Themes, Key Objectives and Strategies
CHAPTER 4 IMPLEMENTATION OF THE STRATEGIC PLAN
4.1 Introduction
4.2 Human Capital Management and Administration
4.2.1 Current Staff Establishment
4.2.2 Staff Development
4.3 Financial Resources
4.4 Current Organizational Structure
4.5 Proposed Organizational Structure
4.6 Proposed Staff Establishment
4.7 Risk Management
CHAPTER 5 MONITORING AND EVALUATION
5.1 Introduction
5.2 Monitoring and Evaluation Framework
5.3 Reporting
ANNEX 1: STRATEGIC PLAN IMPLEMENTATION MATRIX

Anti-Doping Policy / Anti-Doping Agency of Kenya (ADAK). - Nairobi : ADAK, 2016

Acting with the guidance of the Anti-Doping Agency of Kenya – (ADAK) the National Government and the Devolved County Governments have sought to satisfy the requirements of the UNESCO Convention by adopting the anti-doping policy framework set out in this document (the “Kenya National Anti-Doping Policy”, or “Policy”). The purpose of the Kenya National Anti-Doping Policy is to set out the policy objectives and requirements of the National Government and the Devolved County Governments in the field of doping in sport, and to identify the roles and responsibilities of each of ADAK, the Sports Fund, and the national and County governing bodies of sport in Kenya (i.e., a national or regional entity which is a member of or is recognized by an International Federation ), as well as of the Sports Tribunal, in delivering on and/or otherwise supporting those objectives and requirements.

Anti-Doping Rules / Anti-Doping Agency of Kenya (ADAK). - Nairobi : ADAK, 2016

Contents:

Fundamental Rationale For The Code And ADAK's Anti-Doping Rules
The National Anti-Doping Program
Scope Of These Anti-Doping Rules
Article 1 Application Of Anti-Doping Rules
Article 2 Definition Of Doping - Anti-Doping Rule Violations
Article 3 Proof Of Doping
Article 4 The Prohibited List
Article 5 Testing And Investigations
Article 6 Analysis Of Samples
Article 7 Results Management
Article 8 Right To A Fair Hearing
Article 9 Automatic Disqualification Of Individual Results
Article 10 Sanctions On Individuals
Article 11 Consequences To Teams
Article 12 Sanctions And Costs Assessed Against National Federations
Article 13 Appeals
Article 14 Confidentiality And Reporting
Article 15 Application And Recognition Of Decisions
Article 16 Incorporation Of ADAK Anti-Doping Rules And Obligations Of National Federations
Article 17 Statute Of Limitations
Article 18 ADAK Compliance Reports To WADA
Article 19 Education
Article 20 Amendment And Interpretation Of Anti-Doping Rules
Article 21 Interpretation Of The Code
Article 22 Additional Roles And Responsibilities Of Athletes And Other Persons
Appendix 1 - Definitions
Appendix 2 - Examples Of The Application Of Article 10
Appendix 3 - Application Form For Therapeutic Use Exemption
Appendix 4 - Notification Form For Anti-Doping Rule Violation (Art. 2.1)
Appendix 5 - Notification Form For Anti-Doping Rule Violation (Arts. 2.2-2.10)