FAIR PLAY OR POWER PLAY? AFRICAN EQUITY IN THE GLOBAL ANTI-DOPING REGIME [Part II]

Jurisprudence in Focus: The Lived Reality of Anti-Doping Law

The rulings of CAS and other disciplinary bodies reveal how these systemic issues manifest in real-world cases, creating a chasm between the law on the books and justice on the ground.

The case of Nigerian sprinter Blessing Okagbare is another example of the modern anti-doping apparatus at full force. Her 10-year ban was not just for the presence of multiple banned substances.  Critically, she received a lengthy sanction for “refusing to co-operate with the Athletics Integrity Unit’s (AIU) investigation” and “frustrating the AIU’s ability to fulfil its mandate to protect the integrity of the sport of athletics”.  The Athletics Integrity Unit (AIU), an independent body funded by World Athletics, built its case using non-analytical evidence, including text messages obtained through collaboration with US law enforcement.  The CAS panel that heard her appeal noted the “compelling” evidence of a “well-organised doping regimen”.  While the outcome may be justified, the process highlights the immense investigative power of bodies like the AIU. They operate with the resources and sophistication of a state agency, while the athlete is left to defend themselves. The case sends a chilling message: obstruction or non-cooperation is a cardinal sin, yet fully cooperating with an invasive investigation without legal counsel is a perilous undertaking for any athlete.

The case of Kenyan runner Judy Jelagat Kemboi shows the hurdles African athletes face. The case shows the system’s failure even when an athlete fully cooperates. After testing positive, Kemboi traced the source to routine medication, a normal healthcare choice for Africans, from a local clinic in Endorat and submitted records, even paying for independent special lab tests abroad. Yet with the burden of proof entirely on her, the process imposed crushing financial and logistical costs. With no evidence left to offer and legal fees beyond reach, her “admission” was less a confession than a forced surrender.

Let’s contrast these cases with that of the Chinese swimmer Sun Yang.  Facing an eight-year ban for tampering with a sample collection (an incident involving a smashed blood vial) he had the financial means to pursue every available legal avenue. He appealed the CAS decision to the Swiss Federal Tribunal, a court with very narrow grounds of appeal, typically limited to procedural irregularities or public policy violations. His legal team successfully argued that one of the CAS arbitrators had demonstrated bias through racist social media posts. The Swiss Federal Tribunal’s decision in Judgment 4A_318/2020 was a landmark victory for due process, leading to the annulment of the original CAS award and a new hearing.  Although a different CAS panel re-sanctioned him to a reduced ban, the case proves that procedural fairness can be vindicated, but often only by those who can afford the exorbitant cost of appealing to a federal court. This stands in clear contrast to the likely fate of an African athlete who perceives bias or procedural error in their hearing but has no means to challenge it beyond the initial tribunal.

The system’s rigidity can also be seen in Dwain Chambers v. British Olympic Association(BOA).  In this case, Justice Mackay upheld the BOA’s by-law imposing a lifetime Olympic ban on athletes guilty of serious doping violations. The court accepted that the policy pursued the legitimate aim of protecting the integrity of sport and public confidence in clean competition, even though it restricted Chambers’ ability to compete at the Games. This demonstrates the court’s tendency to prioritise the integrity of the anti-doping ‘system’ above all else, reinforcing the self-contained and often unforgiving nature of the lex sportiva. For African athletes, who may fall foul of the rules through ignorance or lack of support, this unforgiving posture means there is often no room for mitigation, context, or proportionality

II. Forging an Equitable Path: Pragmatic Reforms for African Sport and Global Governance

Acknowledging these deep-seated inequities is insufficient. Meaningful change requires a deliberate and multi-faceted strategy of legal and institutional reform. These proposals are designed to be pragmatic, actionable and tailored to rebalance the scales of justice.

First, justice must be strengthened within Africa. National governments must evolve their anti-doping legislation beyond mere compliance. The Kenyan Anti-Doping Act, for example, should be amended by Parliament, with the initiative led by the Ministry of Sports, Culture and Heritage.  The introduction of a statutory, state-funded legal aid scheme for athletes facing anti-doping charges before the Sports Disputes Tribunal (SDT), to supplement and strengthen the existing pro bono panel currently in place at the SDT would be a positive amendment. This would operationalise the right to representation and ensure no athlete faces a tribunal alone. Increased treasury allocations to NADOs like Anti-Doping Agency of Kenya (ADAK) must be ring-fenced for athlete education that is practical, delivered in local languages and focuses on navigating the complexities of whereabouts requirements, the risks of supplement use, and the process for obtaining a Therapeutic Use Exemption (TUE).

Second, the continental nature of the problem demands a continental solution. This authors strongly advocate for the establishment of a Pan-African Legal Aid Fund for Sport and Athletes (ALAFSA). This body, ideally established under the governance framework of the African Union Sport Council, would serve as a crucial backstop for athletes facing international proceedings at CAS. Its funding model could be diversified, drawing from a small percentage levy on broadcast rights for major sporting events held in Africa, mandatory contributions from National Olympic Committees across the continent, and strategic partnerships with Pan-African law societies and corporate entities. Operationally, ALAFSA would not employ lawyers directly but would maintain a curated roster of qualified sports law experts from across Africa. It would then fund the legal fees, expert witness costs, and scientific testing for athletes who meet a defined means test, thereby giving African athletes a fighting chance on the global stage.

Third, fundamental reform is necessary at the global level to address the root causes of the power imbalance. WADA must undertake a serious review of the strict liability principle. A potential reform could be the introduction of a rebuttable presumption of no fault for certain specified substances known to be common contaminants, shifting the evidentiary burden back to the anti-doping organisation to prove intent or gross negligence. At CAS, while a legal aid scheme and a roster of pro bono or ‘cab rank’ system for arbitrators should be considered. Such a measure would require all arbitrators on the CAS list to accept a certain number of cases per year on a pro bono basis for indigent athletes, thereby democratising access to top-tier legal expertise. Laslty, the persistent lack of African representation on WADA's executive boards and CAS’s list of arbitrators must be addressed. This is not a matter of tokenism, but one of substantive importance. The inclusion of individuals with an understanding of the challenges on the continent into the core of global decision-making is essential for crafting rules and procedures that are truly fair and globally applicable.

III. Conclusion

The global anti-doping order was created with the goal of protecting the integrity of sport. In its enthusiasm for uniformity, though, it has constructed a legal order that is all too frequently insensitive to the vast disparities in resources, education and power that define our world. Lex sportiva, in being effective, has come at the cost of justice. To the African athlete, the playing field is not level; it is tilted by the weight of a system that demands universal adherence without providing universal aid. The law, in this case, has become a sword against the vulnerable rather than a shield for the innocent.

In order to push the law forward to a fairer African society, we have to confront these inconvenient truths. It requires us to examine who bears the heaviest casualties in this war. The reforms proposed herein (strengthening local justice, building continental support mechanisms and demanding global accountability) are not designed to undermine the anti-doping struggle. They are aimed at leveling the playing field. True sporting integrity cannot be achieved in a system where fairness is sacrificed on the altar of expediency. It can only be achieved when all sportspeople, regardless of nationality or financial resources, are entitled not just to compete fairly but to a fair and equal hearing if their integrity should ever be called into question.