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

Tue Jun 28 22:39:00 UTC 2016

Posting in my capacity as a community member 

Comments bellow

On 6/28/16, 10:56 PM, "Andrew Alston" <Andrew.Alston at liquidtelecom.com> wrote:

Comments below 

Please note – I am posting here purely in my capacity as a resource member.

>>>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

Following discussion in a separate thread if resource member includes legacy holders I think they should not vote.  They are either fully in or out.  They hold on to resources out of Afrinic and do not want to share or return and yet they want to take part in the governance by paying a measly fee.  

> 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.  

I tend to agree here and woud be in favour of an amendment to fix the ambiguity

>>>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

Supported as well

>>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

Agree with term limits – would not however support a single term – there has to be some continuity and it takes any director time to get up to speed with everything in the organization as well.  Two terms with a two term break seems far more reasonable to me, and I would support such

Fully diasgree  if it takes time I think NOMCOM then needs to be more thorough in the selection process.  The region has a wealth of highly intelligent people capable of grasping the board expectations in a very short time.   The above suggests we are presented with incapable candidates to choose from which I fully disagree with. 

The proposal of One term and at least an election before another nomination is perfect.

>>> 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. 

I do not support this at all and would vote against any such change.  I believe that the members are free to nominate who they want, and the vote at the ballot box should be the deciding factor.  If the community wishes to elect a number of people from the same <insert criteria> that is the communities choice, and I don’t think we should be attempting to code in limitations to this.  There is however one except, I would support an amendment that says no more than two directors from the same organization (on a 9 man board, I don’t believe this is a number high enough that 2 people could have any meaningful sway).  With regards to the regional and who is domiciled where, I strongly oppose.  I point out at under the current bylaws a director may be domiciled in a particular place when he stands and may relocate during his term (including off the continent) – under this proposal a director who moved to a country where another director was domiciled during his term would have to forfeit his duly elected seat.  Sorry, can’t support that.

In a region of over 1 billion people and 53 countries the above submission would seem very weak.  Lets invest in finding those people.  

To put this in context we are looking for  0.000000009 %  from a population point of view and 17% from a countries point of view.  Surely we can and should increase our outreach efforts.

>>>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

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. 

Strongly supported and would go so far as to say that a director should sign a conflict of interest register when they accept the position, that clearly states any affiliations they have where such conflict could arise (Basically any additional board seats, any companies  they are renumerated by, and any companies they hold in excess of 5% shareholding in)

>>> 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 

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. 

Supported – though I would add SGM as a possibility for replacement.  In the event of losing multiple directors at a single time through some unforeseen event it may become necessary to call an SGM for this purpose and the bylaws need to allow for it.  The risk of tying this to an AGMM is that the board could be down to a skeleton for close to a year if we don’t allow for SGM’s.

Secretariat runs the organisation.  Board is just oversight.  No need for SGMM.  I think we are blowing board value out of proportion.  

>>> 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.   

I agree with the original proposal that states a super majority.  I believe that the board should have the right to reject candidates if certain situations. 

Problem with the above is that “certain situations” is so subjective.  Could be used to manipulate selection pool.  Or community could read negative intentions out of the rejection and thus bring disrepute to the board.  Super majority is open to abuse.

>>>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

Am not sure we can legally override the companies act in this regard and would like to see legal opinion on this.  In principle I agree that the board should never change the bylaws without a super majority special resolution of the community at either an SGM or AGMM, I am just not sure we can have the bylaws match the companies act in this regard. 

Companies act  should never come in the way of community.  We have 53 possible jurisdictions to consider if this becomes a major issue.  By the way we can change our registered office without moving out of Mauritius.

>>>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.

Agree with the original proposal, the community should have the right to reject policy adopted by the board.  I still believe that the board needs the right to adopt emergency policy to protect the organization if it deems necessary, and have the community reject it at the next meeting if they feel it necessary.

In the above case board members would also be taking full responsibilty with legal repercussions should the board policy bring negative outcomes to the organization.  Lets remember the boards oversight role is to ensure that the bottom up process is maintained.  The ultimate decision for policy belongs to the community.  Board in Afrinic is not like board in any other company.  The Afrinic board role is purely oversight.  We can and should not allow board to give themselves more powers.

Regards

Badru

Thanks

Andrew

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