WADA: Why ADAK was declared non-compliant

It appears the Anti-Doping Act of 2016 was mutilated in parts to deliberately reduce the scope of mandate of the Anti-Doping Agency of Kenya (ADAK) while giving more powers to the Sports Ministry to control its operations.

Citizen Digital obtained a copy of parts that the World Anti-Doping Agency (WADA) ruled failed to comply with its Code that are published in full below as a high-powered delegation led by Cabinet Secretaries Dr. Hassan Wario (Sports) and Ambassador Amina Mohammed (Foreign Affairs) left the country for Canada to meet the global watchdog on Sunday evening.

ADAK chairman; James Waweru and CEO, Japhter Rugut and eminent local anti-doping expert, Prof. Moni Wekesa were part of the travelling party.

“We hope we can resolve all the issues and comeback with good news. We are going to have a good discussion, a good negotiation and have a way forward,” Ambassador Amina told Citizen TV at Nairobi’s Jomo Kenyatta International Airport.

The Foreign Affairs minister added they were expected back after two days.

WADA declared ADAK non-compliant last Wednesday sparking fears that have since been allayed that Kenyan athletes would miss the Rio 2016 Olympics.

However, the latest doping crisis as the country seeks to take steps to clean its sports has nothing to do with the sportspersons but the law that was meant to stem the vice that has seen over 40 Kenyan runners serve sanctions for testing positive.

WADA tore into the much-publicised Anti-Doping Law pointing out sections in the 36-page act where changes from the Bill that was compliant in the Code were made and it is not clear whether it was a deliberate attempt to water down the powers of ADAK.

The global anti-doping body took issue with the clause that gave anti-doping officers powers to arrest and hold any suspected drug cheat or agent for 24 hours arguing sanctions for substance abuse should be separated from the criminal procedure and sanctions.

Other serious  amendments to the final version of the Bill declared compliant by WADA and what was signed into law by the Head of State were sections where the Cabinet Secretary, not the public and WADA would have the powers to scrutinise ADAK activities and spending making the minister take effective control of the body.

Other surreptitious changes saw federations ‘excused’ from the requirement to bind them to the anti-doping law and some clauses added or deleted from what was recommended by the world anti-doping body without consultation.

Full transcript of parts of the Anti-Doping Law No. 5 of 2016 that WADA found to be non-compliant.

PART 1 PRELIMINARY

“athlete” means any person who competes in sport at the international level as defined by an international federation or at the national level as defined by the Agency;

“athlete support personnel” includes a coach, trainer, manager, agent, team staff, official, medical or paramedical personnel, parent or any other person working with, treating or assisting an athlete participating in or preparing for a sports competition;

“attempt” means purposely engaging in conduct that constitutes a substantial step planned to culminate in the commission of a prohibited activity:

Provided that there shall be no commission of a prohibited activity based solely on an attempt to commit a prohibited activity if the person renounces the attempt prior to it being discovered by a third party not involved in the attempt;

The following defined terms, that were part of the final version of the bill declared in line by WADA, have been deleted:

-Adverse Analytical Finding

– Adverse Passport Finding

-Anti-Doping Organization

-Athlete Biological Passport

-Atypical Finding

-Atypical Passport Finding

-Consequences of Anti-Doping Rule Violations

-Contaminated Product

-Disqualification

-Event Venues

-Event Period

-Fault

-Financial Consequences

-Independent Observer Program

-Individual Sport

-Ineligibility

-International Event

-Major Event Organizations

-National Event

-No Fault or Negligence

-No Significant Fault or Negligence

-Person

-Provisional Hearing

-Provisional Suspension

-Publicly Disclose or Publicly Report

-Regional Anti-Doping Organization

-Signatories

-Specified Substance

-Strict Liability

-Substantial Assistance

-Team Sport

However, since definitions are contained in both the policy and the NADO rules, we do not consider it to be an issue.

Comment [AN2]: This definition has been amended, however we do not have any specific comment as it can be read in conjunction with the corresponding definitions of international-level athlete and national-level athlete provided in the policy and in the NADO rules.

Comment [AN3]: This definition is different than the one appearing in the final version of the bill declared in line by WADA. Could you please clarify how “prohibited activity” can be defined and why this expression has replaced “anti-doping rule violation”?

“healthcare practitioner” includes any person who has obtained health professional qualifications and is licensed by the relevant regulatory body;”

Comment [AN4]: Could you please clarify whether a healthcare practitioner (definition that was not present in the final version of the bill declared in line by WADA) would fall under the definition of Athlete Support Personnel or whether there is a distinction to be made?

“national-level athlete” means a person, other than an international-level athlete, who is designated by the Agency, or the national anti-doping agency of another country, as being within the Registered Testing Pool of the Agency or that National Anti-Doping Organization, as the case may be

Comment [AN5]: The following definition has been changed compared to the one which was part of the final version of the bill declared in line by WADA. This definition is contrary to the one provided for in the policy and in the NADO rules (which is in line with the Code’s requirements) and shall be amended accordingly.

“out-of-competition testing” means the collection and testing of a sample from an athlete for the purpose of doping control procedures while the athlete is out-of- competition;

Comment [AN6]: The following definition has been changed compared to the one which was part of the final version of the bill declared in line by WADA. This definition is contrary to the one provided for in the policy and in the NADO rules (which is in line with the Code’s requirements) and shall be amended accordingly.

“prohibited association” means association by an athlete or other person subject to the authority of the Agency in a professional or sport related capacity with any athlete support person who if subject to the authority of the Agency, is serving a period of ineligibility; or if not subject to the authority of the Agency, and where ineligibility has not been addressed in a results management process pursuant to the Code, has been convicted or found in a criminal, disciplinary or professional proceeding to have engaged in conduct which would have constituted a violation of Anti-Doping Rules if Code-compliant rules had been applicable to such person;

Comment [AN7]: The following definition has been changed compared to the one which was part of the final version of the bill declared in line by WADA. This definition is contrary to the one provided for in the policy and in the NADO rules (which is in line with the Code’s requirements as it refers to any Anti Doping Organizations and not only to the Kenyan NADO). Therefore this definition in the law shall be amended accordingly.

“trafficking” means selling, giving, transporting, sending, delivering or distributing or possessing for any such purpose a prohibited substance or prohibited method by an athlete, athlete support person or any other person subject to the jurisdiction of the Agency to any third party;

Comment [AN8]: The following definition has been changed compared to the one which was part of the final version of the bill declared in line by WADA. This definition is contrary to the one provided for in the policy and in the NADO rules (which is in line with the Code’s requirements as it refers to any Anti Doping Organizations and not only to the Kenyan NADO). Therefore this definition in the law shall be amended accordingly.

athletes and athlete support personnel who are members or licensees of any national federation or sports organization in Kenya; (ii) athletes and athlete support personnel who participate in such capacity in events, competitions and other activities organized or recognized by any national federation or sports organization;

Comment [AN9]: These provisions were not part of the final version of the bill declared in line by WADA. We note that the scope of the Act is narrower than the scope of the NADO rules (which had been defined in cooperation with WADA, see article 1.3.1.1); in particular we note that the scope in the Act should be extended to “any member or affiliate organization of any National Federation in Kenya (including any clubs, teams, associations or leagues)”.

Comment [AN10]: Please refer to our comment above and article 1.3.1.2 of the NADO rules.

PART II-ESTABLISHMENT OF THE ANTIDOPING AGENCY

The functions of the Agency shall be to

Comment [AN11]: We note that numerous rights and obligations of the Agency were removed from the Act in comparison to the final version of the bill declared in line by WADA. Will the Agency be responsible, as was set out in the previous draft, for

– Being the only organization permitted to carry out anti-doping activities in Kenya and that such authority is recognized by all National Federations in Kenya

– Results management (save for events of international federations and major event organizers)?

– overseeing the process of the TUE committee and have the authority to establish an TUE Committee that shall be recognized by all National Federations?

– Education and research

– Publish information at least annually regarding its activities as required by article 14.4. of the Code

(Please also refer to our comment below regarding article 14.4. of the Code).

– Implement the ADAMS program

– Have the authority to amend the Anti-Doping Rules in conformity with any amendments to the

Code or International Standards and ensuring that such amendments are binding on all National

Federations in Kenya and all Athletes or other Persons subject to the Rules?

If so, why were such provisions removed?

(1) The conduct and regulation of the business and affairs of the Board shall be as set out in the Schedule.

(2) Subject to the provisions of the Schedule, the Board may determine its own procedure and the procedure for any committee of the Board.

Comment [AN12]: These provisions were not part of the final version of the bill declared in line by WADA. We look forward to receiving the draft for our review. Furthermore, could you please clarify in which sense this article is addressing the issue of conflict of interest, as stated at point 5K of the “summary of amendments to the Anti-Doping Act 2016”?

Any function or power delegated under this section shall be performed and exercised in the name and on behalf of the Authority.

Comment [AN13]: These provisions were not part of the final version of the bill declared in line by WADA. Could you please clarify which “Authority” this refers to?

There is established the Therapeutic Use Exemption Committee.

“A sports administrator who has since retired.

Comment [ES14]: This provision was modified compared to the final version of the bill declared in line by WADA. In the previous version, considered by WADA to be in line with the Code’s principles, a minimum timeline of two years from retirement was set. Such timeline has now been removed. Could you please clarify the reason behind this edit and how conflict of interest would be avoided?

An international-level athlete, or an athlete who participates in an international event, with a medical condition requiring the use of a prohibited substance or prohibited method, may, in accordance with the

International Standard for Therapeutic Use Exemptions, apply no later, except in emergency situations, than –

(a) thirty days before his participation in an international event; or

(b) such other period as may be provided for in the anti-doping rules of the relevant International

Federation, to the relevant International Federation for an exemption and provide the Committee with a copy of the application prior to the international event.

Comment [AN15]: These provisions were modified compared to the final version of the bill declared in line by WADA .Could you please clarify if based on this new wording the Agency has the possibility to process TUE applications from International-Level Athletes?

Unlawfully stocking, distributing, transporting, selling or in any manner unlawfully dealing in products containing prohibited substances.

Comment [AN16]: These provisions were not part of the final version of the bill declared in line by WADA. Please note that this is not an anti-doping rule violation as per article 2 of the World Anti-Doping Code (see also article 27 -4 below). In light of the above, we recommend removing this provision.

Cooperate with the Athlete Testing Programme; and (athletes caught doping)

Comment [AN17]: These provisions were modified compared to the final version of the bill declared in line by WADA. Could you please clarify what this expression refers to?

An anti-doping compliance officer may with a warrant, arrest any person whom the anti-doping compliance officer suspects on reasonable grounds of having committed an offence under this Act and may search the person and detain the person for a maximum of twenty four hours at the nearest police station.

Comment [AN18]: These provisions were not part of the final version of the bill declared in line by WADA. We recommend rewording these provisions to ensure that the anti-doping procedures and sanctions are kept separate from the criminal procedure and sanctions.

31. (1) The Tribunal shall have jurisdiction to hear –

(a) any appeal from a decision by the Agency, the

Sports Registrar or the Sports Fund;

(b) any disputes involving the following –

(i) national- level athletes or athletes who

compete at the county level;

(ii) athlete support personnel,

(iii) sports federations or sports organisations; or

(iv) professional athletes and professional sports persons

Comment [ES19]: These provisions were modified compared to the final version of the bill declared in line by WADA. Could you please clarify whether the tribunal would be acting as a first instance or second-instance jurisdiction and outline the disciplinary procedure based on the Act?

(2) Without prejudice to the generality of subsection

(1), the Agency shall, within three months after the end of each financial year, cause to be made and submitted to the Cabinet Secretary a report dealing with the activities of the Agency in accordance with Article 14.4 of the Code during the preceding financial year.

Comment [AN20]: These provisions were modified compared to the final version of the bill declared in line by WADA. We kindly remind you that the obligations arising under article 14.4 of the Code entail that the general statistical report of Kenya’s Doping Control activities be published publicly with a copy provided to WADA.

PART VI – GENERAL PROVISIONS

Comment [AN21]: In the final version of the bill declared in line by WADA, the section entitled

General Provisions contained the following:

33. All persons shall be bound by the anti-doping rules
34. Each sports federation shall prepare rules requiring all Athletes and each Athlete Support Personnel who participates as coach, trainer, manager, team staff, official, medical or paramedical personnel to agree to be bound by anti-doping rules and ADAK’s results management authority in conformity with the Code as a condition of such participation

35. All persons shall report any information suggesting or relating to an anti-doping rule violation to ADAK, and, if it is a national federation, to its international federation.

36 .All persons shall cooperate with any investigations conducted by ADAK.

Could you please inform us why such provisions were removed?

Provided that, in addition, any athlete support personnel identified as being responsible for non- compliance with any rule made under this Act shall be subjected to the sanctions under subsection (4).

Comment [AN22]: These provisions were modified compared to the final version of the bill declared in line by WADA. Could you please clarify which subsection (4) you are referring to?

(6) An athlete or athlete support personnel who commits any of the prohibited activities under section 26, commits an anti-doping rule violation and shall be handled in the manner set out under this Act.

Comment [AN23]: These provisions were modified compared to the final version of the bill declared in line by WADA. Given the content of the Act, we recommend these provisions to be reworded to reflect that anti-doping rule violations shall be “handled in the manner set out in the Agency’s Anti-Doping Rules”.

We see form the “summary of amendments to the Anti-Doping Act 2016” that you acknowledge this issue and indicate that such matter will be addressed by the Parliament not before six months after the law takes effect. We recommend this amendment be made, together with the others we recommended, as soon as possible.

(4) All decisions by the committees appointed under subsection (1) shall be subject to ratification by the Board.

Comment [AN24]: These provisions were not part of the final version of the bill declared in line by WADA. Could you please clarify the scope of this provision (i.e. would decisions by TUE committee first require ratification by the Board)?