Various forms of gambling are becoming a phenomenon across the African continent and Kenya has been no exception in the frenzy. In light of the growing global gambling and gaming trend, and the emergence of newer and more complicated versions of gambling, particularly online gaming, there has been increasing concern on the legal regulatory framework on gambling in Kenya. The overriding aim has been to strike an ideal balance between the positive aspects of the gambling and gaming sector and its potential negative effects.
The legal regulatory framework on Gambling in Kenya
Overall, gambling and gaming activities in Kenya at both the national and county levels are governed by the Constitution of Kenya, 2010 (the “Constitution”). Besides the Constitution, the Betting, Lotteries and Gaming Act, Chapter 131, Laws of Kenya (the “BLGA”), is the overriding legislation governing gambling and gaming activities at the national level. Additional regulation at the county levels is through county specific legislation where this currently exists.
Administratively, gambling and gaming activities are controlled by the Betting Control and Licensing Board (“BCLB”) established under the BLGA. The BCLB, in turn, administratively falls under the Ministry of Interior and Coordination of National Government (the “Ministry”).
Proposed new developments
On 1st April, 2019, following a meeting with the officials of the BCLB and the other stakeholders in the Kenyan gambling and gaming sector, the Cabinet Secretary (Minister) in charge of the Ministry publicly announced various proposed measures and changes in the regulatory framework of the gambling and gaming sector in Kenya.
In making the proposals for the changes the Cabinet Secretary expressed concern that the legal regulatory framework for gaming and gambling in Kenya is currently inadequate and needs to be completely overhauled. The Cabinet Secretary singled out the need to, for instance, protect young people and the poor who are predominantly involved in gambling and gaming in the country.
A summary of those proposed changes and measures announced by the Cabinet Secretary are as follows:
- that there is a proposed gambling and gaming policy to be issued by the Ministry together with a Bill that will soon be introduced in Parliament for consideration in relation to new statutory regulation of gambling and gaming activities once consultations are finalised and input is sought on these from the BCLB and the sector players;
- issuing directions to the BCLB and the Communications Authority (mandate to ensure that advertisements by licensed broadcasters are not deceptive or are not repugnant to good taste) need to jointly review the advertisements for gaming and gambling activities being made in Kenya;
- issuing directions to the BCLB in conjunction with the department of immigration services to document all the agencies involved in gaming and gambling activities and evaluate the immigration status of the foreigners involved in these activities; and
- expressing concern that the taxes received from the sector in the year 2018 were approximately 2.5% of the total revenue from the sector in that year, the Cabinet Secretary also directed that all gambling and gaming licenses will stand suspended with effect from 1st July, 2019 except licenses for those players who will be satisfy the BCLB that they will have fully complied with their tax obligations and the law.
The Cabinet Secretary also indicated that there will be a further meeting in about 30 days’ time between the representatives of various government agencies including the Ministry, the National Treasury and the Communications Authority, among others, and the industry players to get their views on the operations and the running and of the sector.
The Cabinet Secretary alluded to the Ministry’s vision for a “clean reformed and organised” gambling and gaming sector in Kenya. He also promised a raft of changes in the sector in the coming days.
We, therefore, anticipate that there will be significant legal regulatory and administrative changes in relation to gambling and gaming activities in Kenya and industry players and stakeholders will need to track these to ensure compliance with any changes that may be effected or, where necessary, proposed.
It may also be helpful for industry players and stakeholders to participate in the proposed sectoral engagements between the Government and sector players to give their input in the anticipated legal regulatory review process. This will be beneficial in helping them anticipate and prepare appropriately for the expected changes.
Kenya, once again finds itself on the edge and having to work towards complying with the directives issued by the International Olympic Committee after the disbanding of the National Olympic Committee of Kenya whose membership comprises of affiliates from all the sporting disciplines.
The irony of the whole spectacle is the fact that the International Olympic Committee as created by the Congress of Paris on June 23, 1894 was entrusted with the control and development of the modern Olympic Games yet its offspring; in this case the National Olympic Committee of Kenya seems to be keen on taking away the few sporting disciplines Kenya is involved in within the framework of the Modern Olympic Games!
While the disbandment was the expected reaction after a dramatic Rio Olympics, it is not and cannot be the one thing that would recreate the universe so that everything falls in place. Kenya is a country so rich in culture so that we would stand the best chance of participating in all the major Olympics games if not all the Olympic Games.
How is it that we are unable to harness the resilience of the Turkana’s and the Pokot who have for a long period of time lived and probably built the adaption to survive in the harshest conditions, is it not obvious that such a person equipped with proper training would probably dazzle the world in the 42 kilometre-marathon genre? That we do not have a single Maasai participating in the Javelin and Long Jump competitions speaks of a people bestowed with so much by nature but choose to look elsewhere for their salvation. Our diversity as a people would be sufficient to give birth to a nation of the world’s most exceptional sporting talent!
There is a greater need for the country to reflect on the possible interventions that would bring about sanity in the running of Sports in Kenya and we must be fair to the leadership of the country since for the first time since independence we have a piece of legislation namely the Sports Act that seeks to harness sports for development, encourage and promote drug-free sports and recreation, provide for the establishment of sports institutions, facilities, administration and management of sports in the country. What however remains to be seen is the operationalization of this particular piece of legislation.
The Sports Act creates a body known as Sports Kenya whose mandate among others is to promote, co-ordinate and implement grassroots, national and international sports programs for Kenyans, in liaison with the relevant sports organizations and facilitate the active participation of Kenyans in regional, continental and international sports, including in sports administration.
While the National Assembly has invited the Cabinet Secretary to answer questions regarding the Rio Mess, we are yet to hear from Sports Kenya, yet we have an existing board in which the Attorney General sits and should have guided the executive on the disbanding of the National Olympic Committee. There must be a push by all and sundry for accountability from all the bodies tasked to manage sports in this country.
Unless there is a deliberate effort towards operationalizing the Sports Act in both letter and spirit, the realization of our country’s sports potential will remain just but a moving target despite the amazing sports stories that have come from Kenya.Read More
Throughout the world, it has been the practice to insulate all sports from the vagaries of litigation in the ordinary courts. It is because of this that there are various bodies established to adjudicate on sports disputes with the apex body being The Court of Arbitration for Sports. It is this thinking that the drafters of the Sports Act 2013 together with the legislature had when they established Sports Tribunal. Whereas the establishment of the Tribunal was a step in the right direction, the legislature failed to give the tribunal teeth with which to bite.
From the establishing statute, the Tribunal is starved off jurisdiction. Section 58 provides that the tribunal shall have jurisdiction to determine appeals against decisions made by national sports organizations or umbrella national sports organizations, whose rules specifically allow for appeals to be made to the Tribunal in relation to that issue including appeals against disciplinary decisions and appeals against not being selected for a Kenyan team or squad. The Tribunal can also hear and determine other sports-related disputes that all parties to the dispute agree to refer to the Tribunal and that the Tribunal agrees to hear.
As framed, the provisions on jurisdiction pose some conundrum for the reason that the Tribunal will derive jurisdiction from sports organizations rather than from the statute. The reason I say so is because by allowing sports organizations to determine whether to be subject to the jurisdiction of the tribunal, we are telling these organizations that they can within the law avoid the jurisdiction of the tribunal. If all federations in Kenya do not in their constitution recognize the jurisdiction of the tribunal, it shall be rendered superfluous.
Secondly, the jurisdiction of the tribunal ought not to be left upon the parties to agree. If parties to dispute have thus far disagreed, it is highly unlikely that they will agree to refer the matter to the tribunal.
The other shortcoming of the tribunal as established is that it only enjoys appellate jurisdiction. It can only exercise original jurisdiction upon agreement of parties to a dispute. It would have been prudent to at least confer original jurisdiction on specific matters. It cannot be left on the parties to determine which dispute is to be determined by the tribunal.
The most striking shortcoming of the statute is that it does not provide for what remedy the tribunal can give after hearing a dispute. Most statutes establishing tribunals provide for specific remedies which the tribunal can grant after hearing a dispute. As we speak, we cannot tell whether the tribunal can award damages, grant an injunction, quash orders of the various federations etc.
The obvious ramification of the foregoing weaknesses is that any decision rendered by the tribunal can successfully be quashed in the High Court for want of Jurisdiction. This however not to say all is lost. The Sports Act 2013 should be amended to breath life to the Tribunal by conferring it with specific jurisdiction. Without the said amendments, sports dispute with continue to be subject to the ordinary courts hence exposing our industry to the bureaucracy of the court processes. An amendment to the statute will give sports real victory and not hollow victory as is the case at the moment.Read More
Kenya, alongside Nigeria and South Africa, is one of the largest online gaming/betting markets in Africa. In Kenya, the popularity of online gaming is fueled by a high affinity towards sports and technology, particularly by the youth. This is combined with the ease of access and the convenience of using mobile phones as tools for online gaming.
In Kenya, the increase in online gaming activities has presented new legal and administrative challenges in the sector. There has, as a result, been increasing concerns on the adequacy of the current legal regulatory framework to control the sector particularly in light of the potential negative effects of online gaming such as addiction among the youth.
Administratively, gambling and gaming activities are controlled by the Betting Control and Licensing Board (“BCLB”) established under the Betting, Lotteries and Gaming Act, Chapter 131, Laws of Kenya (the “BLGA”). The BCLB, in turn, administratively falls under the Ministry of Interior and Coordination of National Government (the “Ministry”).
In recent weeks, there have been increasing administrative directions from the Ministry and the BCLB. On 1st April 2019, the Minister in charge of the Ministry publicly announced various proposed measures and changes in the regulatory framework of the gambling and gaming sector. The measures were the proposal for the introduction of a gambling and gaming policy, introduction of a bill in Parliament for consideration to repeal the BLGA, directions to the BCLB to review the advertisements for online gaming activities made in Kenya and the directive to the BCLB to document all the agencies involved in gaming and gambling activities and ensure that they have complied with Kenyan immigration and taxation laws. It will be interesting to see how these measures will change the sector in the coming weeks and months.
Perhaps following the Minister’s directions, the BCLB issued a publication dated 30th April 2019 on the advertisement of betting, lottery, gaming and prize competitions (the “Notice”). In the Notice, the BCLB acknowledged the potential negative effects of gambling and gaming and banned the following:
- outdoor advertising of gambling;
- advertising of gambling on all social media platforms;
- advertising gambling between the hours of 0600 hours and 2200 hours; and
- endorsements of gambling operations by ‘celebrities’
The BLGA does not currently specify which media can be utilised for the advertisement of gambling and gaming products and how such advertisements are to be done. While the BCLB as the regulator has wide powers under the BLGA, it is arguable whether the BLGA gives the BCLB such blanket powers to issue the directives issued in the Notice. The BLGA only appears to expressly give the BCLB powers to issue licenses and permits, cancel or suspend them and to inquire into complaints against licensees and permit holders.
We anticipate that there will be heightened debate by industry players on the legality and the extent to which the Notice will be applied and enforced. It is arguable whether the Notice applies or can be enforced in relation to advertisements on pay television channels that ordinarily broadcast from outside Kenya and to internet-based advertisements on websites that are not hosted in Kenya. This directly relates to the legal position of providing online gaming from remote locations to Kenya-based punters.
We are not aware of any review court proceedings that have been lodged in court in relation to the administrative directives issued by the BCLB in the Notice. In the intervening period, pending any alternative decision of a court, it will be imperative for industry players to make plans to comply with the directives of the BCLB in the Notice on or before the deadline, 30th May 2019.
In light of the administrative directions in the gambling and gaming sector in recent days, we anticipate that there will be further significant legal regulatory and administrative changes in relation to gambling and gaming activities in Kenya and industry players and stakeholders will need to track these to ensure compliance with any changes that may be effected or, where necessary, proposed.