[Community-Discuss] [members-discuss] AFRINIC - Matters Arising

Mon Jul 11 18:40:18 UTC 2016

On 11/07/2016 17:35, ALAIN AINA wrote:
> Hello,
> 
>> On Jul 8, 2016, at 4:10 PM, Sunday Folayan <sfolayan at gmail.com
>> <mailto:sfolayan at gmail.com>> wrote:
>>
>> Dear Members and the Community at large,
>>
>> Further to my email of 30th June 2016, I will like to share some thoughts:
> 
> Thanks for sharing these thoughts, comments inline...
> 
>>
>> There seem to be differing interpretations of the way AFRINIC is
>> organised, the powers of the Board, the powers of the Members, the
>> powers of the Community, the bottom-up philosophy, and other related
>> matters.
>>
>> Some definitions and clarifications are appropriate, to explain the
>> Board’s understanding of the status quo.
>>
>> It is necessary to distinguish between the AFRINIC community, AFRINIC
>> membership, and AFRINIC Ltd as a company. The community includes all
>> stakeholders and beneficiaries of AFRINIC’s efforts, including
>> resources and other benefits. The membership is a subset of the
>> community.  AFRINIC Ltd is a membership-driven organisation, with a
>> company registration, bylaws, directors, and all the other things that
>> companies have.
>>
>> The phrase “Bottom-Up” refers to a philosophy and not a specific
>> process.  The bottom-up philosophy is used in the processes that we
>> use to develop policies, elect the Board, change the Bylaws, and also
>> allows members or the community at large to make suggestions or
>> participate in discussions on any relevant matter.
> 
>  AFRNIC is committed to the Bottom-up Self-gorvenance model as per ICP-2
> and the IANA report on AFRINIC accreditation. So it is a  principle and
> well beyond philosophy. 

ICP-2: Criteria for Establishment of New Regional Internet Registries -
(3: Bottom-up self-governance structure for setting local policies) is
reference to bottom up and *specifically* refers to the Policy Process.
In AFRINIC's case, we do that just fine.

https://www.icann.org/resources/pages/new-rirs-criteria-2012-02-25-en

>> AFRINIC Ltd. is registered in Mauritius as a company limited by
>> guarantee.  In terms of the Companies Act of Mauritius (Act no 15 of
>> 2001), such a company may not have more than 25 (twenty-five) members. 
> 
> The correct phrasing in the company act  is "shall not have more than 25
> members"
> 
> How do you interpret this as we are in definition and clarification
> section ?
> 
> Why don’t we fill the members up to 25  to improve accountability  ?
> 
>>  Because of this, the Bylaws state that only the nine Directors (the
>> Board) are Registered Members in terms of the Companies Act.  
> 
> Which makes the Board of Directors  accountable to themselves according
> to the company act.  So question is : what is the contract between these
> 9 and the others ?
> 
>  This original arrangement comes with unwritten rules for the 9 to
> follow the community driven approach, bottom-up self-governance and
> consensus based decision making and act in the public trust. 
> 
>> However, the Bylaws give the broader membership (specifically Resource
>> Members) almost all of the rights shareholders would enjoy in a normal
>> company.
> 
> Nope.  According to the company act, these members have no rights,
> except those granted to them by the 9.  This works only if the unwritten
> rules are followed.
> This was the case until things changed recently  and Company act and
> AFRINIC Ltd is  put in front of other members and the community to
> justify BoD actions.
> 
> A simple  example is point 11 of the AFRINIC  accountability assessment
>  document provided to community for  discussions on bylways changes:
> 
> It states
> 
> ======
> 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
> ==========
> 
> interpretation of “member”  gives right to the 9 to change the bylaws.
>  So option is to limit that power, but to which extent?
> 
> This justify the numerous proposals of amendment to the bylaws which
> have been submitted  and a good summary of them can be seen through the
> two links below:
> 
> https://lists.afrinic.net/pipermail/community-discuss/2016-June/000343.html
> https://lists.afrinic.net/pipermail/community-discuss/2016-June/000350.html
> 
> Concerns are that some of the changes required to change the
> accountability  model  of AFRINIC may not be applicable  in the current
> context of Private company limited by guarantee  in the Mauritius
> company act 2001.
> 
>>
>> AFRINIC Ltd. is run by an executive that reports to the Board, and the
>> Board exercises their fiduciary responsibilities to guide the Company.
>> These responsibilities include the areas of sustainability and
>> operational efficiency which also includes the setting of fees. The
>> powers utilised are granted by the bylaws and the companies act.
> 
> You mentioned company act here as well ?
>>
>> The Board or the executive may ask for comments from the membership or
>> from the community before making decisions, but there is no general
>> requirement that they do so. 
> 
> Being accountable to the community, means taking the decisions which
> match community desires, reporting and taking into  considerations
> community views post decisions.
> 
> 
>> Even in cases where the Board or the executive do not explicitly
>> invite comments, the members or the community are free to make
>> suggestions. If the members or the community would like more
>> consultation, they are also free to ask for that.
>>
>> The Board of Directors is accountable to the Members in that the
>> Members elect the Board.
>>  The Board is also accountable to the community via the subset that is
>> the membership base.
> 
> Once elected, they became members and accountable to themselves. It is
> true as currently only board members can recall and vote out a board
>  member. Other members can’t.
> 
>>    Neither the Members nor the community have power over the day to
>> day operations of the company, and the Board exercises an oversight
>> function rather than day to day operational handling.
> 
> Agree
> 
>>
>> The Board and the executive note all comments submitted, and may
>> respond only after they have received due consideration.
> 
> Good and hope together we build a better future for AFRINIC. 
> 
> It is worth  mentioning  that the current bylaws is the results of
> reviews done in 2012 and 2013 which  tried to improve some aspects from
> previous one. 
> 
> http://afrinic.net/images/stories/Library/news-pub/by_com.pdf
> 
> Hope this helps
> 
> —Alain
> 
> 
> 
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