[Community-Discuss] [members-discuss] Accountability assessment

ALAIN AINA aalain at trstech.net
Wed Jul 6 12:50:45 UTC 2016 

> On Jun 30, 2016, at 12:48 PM, Andrew Alston <Andrew.Alston at liquidtelecom.com> wrote:
> 
> See comments inline (once again, speaking here as a resource member)
>  
> 1- Amend 4.2 to add membership consultation and community notification for at least 6 months before applying adopted new fees schedule.
>  
> "Fees review must be done in consultation with the members and community must be notified at least six(6) months before new adopted fees schedule takes effect."
>  
> ++++++ current
> 4.2 The fees mentioned in Article 4.1 above shall be subject to review from time to time by the Board.
> ++++++
>  
> I have no problem with the 6 month notification

Ack.

> , I have a major problem with consultation outside of the member base and including the wider community in what is a commercial discussion between the company and the members. 

Community = “members" + "potential members”

Every year, AFRINIC get about 133 of the “potential members” to become “members”. So fees discussions is of interest for everyone.


> I’m even very much on the fence about making the fees subject to a negotiation like this, because at the end of the day there is a fiduciary duty on the directors to ensure that the company is sustainable.  If the directors have to raise fees to do that, and the community disagrees with the fee increases, this creates a legally untenable situation. 
> 

What if instead of “community”, “members” disagree  in your case? Community knows  the BoD fiduciary responsibility and care for the organisation, so that together, they should decide  what is good for the organisation and fair for the community. 

But why a such community fear from a Director of a community-driven organisation ?


> That being said, before I make up my mind which way I’d go on this, I’d need to see exact wording of what was proposed.

>  
> 2- Amend 13.4 to clarify that all directors are elected upon recommendations by NOMCOM, while keep the competency requirements for the non regional.
> 
> +++++ current
> 13.4 The Board shall comprise of nine (9) Directors appointed as follows:
> 
> (i) Six Directors elected by the Annual General Member Meeting called under Article 11.1 of this Constitution to represent each of the regions listed in Article 13.5; (Seats 1 to 6)
> 
> (ii) Two Directors elected by the Annual General Member Meeting called under Article 11.1 upon the recommendation of the NomCom based on their competencies and not their regional representation; and (Seats 7 and 8)
> 
> (iii) The Chief Executive Officer. (Seat 9)
> +++++
> 
> I understand the sentiment but I disagree with the wording of the proposed amendment.  Directors are not elected based on a recommendation of NomCom, NomCom controls the slate to ensure that nominations meet criteria.  They do not recommend the election of any particular party, and the use of the word recommend compromises the neutrality of the NomCom.
> 

You may have missed the point here. The amendment is  to align (i)  on (ii). No further change.

> 
> 3-   Amend  14 to add provisions for director recall by the membership :
> 
> - Process starts by petition of minimum 10% of the total membership 
> - Challenged director given opportunity to address the community 
> - Recall approved by 75% of the votes
> 
> 
> ++++ current
> 14 REMOVAL OF DIRECTORS
> 
> 14.1 A Director shall hold office until:
> 
> (i) his term of office expires, without prejudice to Article 13;
> 
> (ii) he/she signs a written notice of resignation and delivers it to the address for service on the Company, which notice shall be effective when it is received at that address or at such later time as may be specified in the notice;
> 
> (iii) he/she is removed by the affirmative vote of two-thirds of all other Directors;
> 
> (iv) he/she otherwise ceases to be a Director pursuant to Section 139 of the Act; or
> 
> (v) the Director being the Chief Executive Officer, on the Board terminating his employment as Chief Executive Officer.
> +++++
>  
> Again, I have no objection to the proposal, though I would like to see an exact wording proposal.



OK.
>  
> 4-  Amend 12.10 (ii)   to set the quorum at 10% of the total membership either present physically or remotely 
>  
>  
> +++++++ current
> 12.10 Quorum.
>  
> (ii) The quorum for an Annual General Member meeting shall be composed of minimum of ten (10) members in person comprising:
> 
> a) Four (4) Directors elected to represent a region;
> 
> b) One (1) Director elected on a non-regional criterion; and
> 
> c) Five (5) Resource Members.
> +++++++
>  
> No real issue with this and it closes a fairly major loophole.  I would however extend this to SGM’s as well as AGMM’s.

OK.
>  
> 5- Amend 12.11 to set  minimum number of votes. For all vote, a minimum of votes from 10% of the total eligible voters required.
>  
> On this I need more clarity.  I would have a problem setting a vote quorum at 10% of the total membership

It is said, 10% of the "eligible voters" and not  "total membership”. We have seen significant difference between the two in the past. But let consider “eligible voter” = “total  membership”…...

> base on every vote purely because if I examine voting trends both in our region and in other regions, this is an extremely high bar to meet.  In Tunis I believe we came close, in Gaborone, to my knowledge we set the highest percentage of membership voting in RIR history, hitting in excess of 20%, but if you examine the RIPE region and other regions, you’re looking at voting percentages that are well sub 10%.  There is no guarantee that we can sustain a 10% vote and I think the figure is far to high.

While this is a reality, it must be changed and all RIRs going through this accountability assessment  must acknowledge that  less that 10% deciding  on matters for a community-driven organisation is bad and effort must made to improve this by having more active members. Chase the dormant members, activate them or close them? 

Voting is possible by presence, by proxy  and online….


Hope this helps

—Alain


>   I’d support a 5% quorum on votes.
>  
> Cheers
>  
> —Alain
>  
>  
>  
>  
>  
>  
> On Jun 28, 2016, at 5:20 PM, Omo Oaiya <Omo.Oaiya at wacren.net <mailto:Omo.Oaiya at wacren.net>> wrote:
>  
>  
>  
> On 10 June 2016 at 11:18, Alan Barrett <alan.barrett at afrinic.net <mailto:alan.barrett at afrinic.net>> wrote:
> Arising from a review of AFRINIC’s Bylaws and other documents, several potential areas for improvement were identified.
> 
> The attached document was presented to the AFRINIC Membership and the community during the AGMM in Gaborone, Botswana, on 9 June 2016.
> 
> I invite the community and the membership to comment on these suggestions, or any other areas where the Bylaws could be improved.  Comments should be sent to the community-discuss at afrinic.net <mailto:community-discuss at afrinic.net> mailing list.  In due course, Bylaws changes will be drafted to implement the suggestions (and additional points that might be identified).
> 
> Alan Barrett
> CEO, AFRINIC
> 
>  
>  
> Thanks Alan.  Comments below
>  
> 
> >>>1 ......  but there is a conflict between 7.2(i) and 13.7(i) on whether or not Associate Members may vote in elections forDirectors. This conflict must be resolved one way or another.
> We need to decide whether or not Associate Members should vote, and modify the Bylaws to give effect to that decision
> 
> Just a matter of ambiguity in the statement in 7.2(i) to straighten out. The bylaws are consistent.  Registered and Resource members vote. Associate members observe.  
>  
>  
> >>>2.  Interchangeable use of the terms “Bylaw” or “Bylaws” and “Constitution”:...... Suggest adding a clause 1.3 to clarify that this document may be referred to by the term “Bylaws” or “Constitution”, and is intended to serve the function of the Constitution in terms of the Companies Act of Mauritius.
> 
> Supported
> 
> 
> >>3- Clarification that all Registered Members in terms of Bylaws 6.3, and only such Registered Members, must be registered in terms of the Companies Act as members of the company.
> 
> Supported but we shall seriously consider moving from this Private company model to a more community oriented model, where all members are considered. 
> 
> 
> >>4 - Term limits: Consider adding a term limit for elected Board members.
> >> We need to decide whether or not to add a limit, and what the limit should be.
> 
> Proposal :  One term and at least an election before another nomination
> 
> 
> >>> 5- Independence of Directors: Consider adding a limit to the number of Directors who may work for the same organisation.
>  
> >>> We need to decide whether or not to add a limit, and what the limit should be.
> 
> We need to keep refreshing the board with independence, expertise and skills so a better managed succession process is a must.  I propose with the exclusion of the CEO that we have
> 
> -  Max 1 per org/company
> -  Max 1 per country
>  - Max 2  per region
> 
>  - Not more than one Director may have employment, consultancy or advisory relationships with the same Company or Organization and/or with one of its Related Companies or Organizations established or not in the same country.
> 
> - not more than one Director may be domiciled in the same country. Should a candidate for a position on the Board of Directors have more than one domicile, one of which involves a presumed incompatibility, in order to analyze his/her case for usual country of residence, the country where the company or organization he/she is a part of or works for is established, and/or any other relevant data shall be considered;
> 
>  - not more than two Directors may be domiciled in the same region. 
> 
> 
> >>>6- Regional representation: Consider modifying 13.5 to state that Directors must act in the interests of AFRINIC as a whole,regardless of their regional affiliation.
> 
> Supported
> 
> >>>7.  Conflict of interest: Consider adding a requirement for Directors to disclose any conflict of interest, and to recuse themselves from voting on any matter where they have a conflict of interest.
> 
> Supported.  In addition, the Board must have a Conflict of Interest Policy and enforce it. 
> 
> >>> 8- Separation of powers: Consider adding a requirement that no more than one key position (Board Chair, Vice Chair, Chief Executive Officer, Chief Financial Officer) may be occupied by the same person.
> 
> Supported
>  
> 
> >>> 9- Replacement of Directors: The bylaws sections 13.1, 13.8, 13.10, and 13.14 give  different methods of replacing Directors for  different reasons. Consider  harmonising this.
> 
> Harmonisation supported but the preferred option should be replacement through election at the next AGMM. 
>  
> 
> >>> 10- Board approval of nominations: The Board can approve or disapprove  nominations for Board elections in terms of the Bylaws section 12.14(i). Consider requiring a supermajority of two thirds of the Board to disapprove any nomination
> 
> We should remove this approval and strengthen NOMCOM.  NOMCOM composition and operation should be reviewed and improved.   We can have the legal advisor and past NOMCOM chair as non-voting members and make the appointment of the other members by the board more transparent, fair and unbiased.   
>  
> The election timeline also needs to be revisited to allow enough time for proper NOMCOM operation.
>  
> 
> >>>11-  Modification to the Bylaws or Constitution: The Bylaws say how the AFRINIC Members may change the Bylaws, but the Companies Act say that the  Registered Members can change it. Consider requiring that the  Bylaws/Constitution may be changed only after a Special Resolution by all AFRINIC Members in terms of Bylaws 7.6(vi),so that the Registered Members (the same nine people as the Directors) cannot act without broader approval.
> 
> Registered members only MUST never amend  the bylaws.  Amendment of Bylaws beyond regulatory compliance must require general membership notice and consultation.  
>  
> The proposed amendment should be published not less than 60 days and not more than 90 days before with provisions for members to comment online and in any meeting held during the consultation
> 
> 
> >>>12- Policies introduced by the Board: In terms of the Bylaws section 11.4, the Board may adopt policy changes that did not go through the normal PDP. Consider giving the community the right to reject such policy changes introduced by the Board.
> 
> Section 11.5 seems to give this right to the community but endorsement may be open to misinterpretation so we shall just remove this.  In case of emergency, section 8 of PDP on varying the policy process applies.
>  
> 11.5:  Any policy adopted by the Board under the provisions of Article 11.4 shall be submitted to the community for endorsement at the next public policy meeting.
>  
>  
> Best wishes
>  
> -- 
> Omo Oaiya
> CTO/Directeur Technique, WACREN 
> Mobile: +234 808 888 1571 , +221 784 305 224
> Skype: kodion
> http://www.wacren.net <http://www.wacren.net/>
>  
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