[Community-Discuss] Accountability assessment - quorum
Andrew.Alston at liquidtelecom.com
Sat Oct 1 16:04:15 UTC 2016
Quite frankly – I think what you have said here is, at best, extremely naive and at worst incredibly irresponsible.
Yes, AfriNIC is a community of members that believes in a bottom up approach. You are correct there – and within the bounds of the law the bottom up process must be respected.
However – AfriNIC is also a registered legal entity, subject to the bounds of a legal act, in the jurisdiction in which it is domiciled.
There are sections of the companies act that can be overridden by a company’s bylaws (Referred to in the act as the company’s constitution), and sections that cannot. The act is very explicit about any section that cannot be overridden. For example, the companies act as refers to proxies specifically states:
Fifth Schedule, section 6, subsection e(ii):
Clause 6 other than paragraph (d)(v) shall apply notwithstanding any contrary provision in any constitution adopted by the company.
What you are advocating below is to ignore the law for convenience sake – or because the will of the majority wish us to ignore the law. To do so creates legal liability, which in turn could result in tremendous financial liability of the company, potentially place any elected director at risk of legal action and sequestration were the board to sanction an action outside of the law, and place the entire entity at risk.
We have all watched the IANA transition of late, and all welcomed the fact that the transition is proceeding. But there is something to learn from that process – at all times – the law was followed, and was respected. Do you believe that because the will of the Internet community said it should go ahead, had the amicus brief filed yesterday and the subsequent hearing to block the baseless injunction that was filed failed, the law would have been ignored because that is what the people wished? I think not.
It scares me to death when I see people who have stood for board positions, and in some case former board members, advocating for ignoring the law. It reminds me of what I have seen in South Africa in recent years, where countless times the incumbent government has ignored the law because they thought they could. In the end – time and again the courts have ruled against them and slapped them down, at huge expense to both the party and the country as a whole.
Yes – the community must have their say – yes the bylaws must be respected – but at the end of the day, the law is supreme, the law cannot be violated, not for you, not for me, not for convenience, but because it is exactly that. The Law. Badru has time and again stated that there are other juristrictions if we do not like the current laws – though in most cases when this has been stated, I’ve actually gone and looked at the various companies acts in a number of countries and found the laws to be similar if not identical. So, if you don’t like the laws, put a special resolution to the floor to move AfriNIC. Then – abide by the result that comes if you fail to get the super majority that is required. Alternatively, accept that the community as a whole is happy with the current legal state.
However – do not advocate for violating the law (because that is what you are doing when you suggest we ignore the law) because it seems expedient – that is totally irresponsible and outright dangerous. I for one also pray that the board is never made up of individuals who believe the law can be violated and ignored at will – because it will be the very death of the organization for which so many have given so much to bring to this point.
On 01/10/2016, 16:54, "ALAIN AINA" <aalain at trstech.net> wrote:
It is deplorable that this thread on proxy went in a such chaotic mode and one had the impression that people were talking without listening to each other.
We have had so many times, discussions around AFRINIC Ltd(the company) and AFRINIC (the community), Bylaws vs Act, etc…. These threads can be found in the archives.
The most recent i could find is at https://lists.afrinic.net/pipermail/community-discuss/2016-July/000432.html
Beside the requirements of the Act and Mauritius laws, this community has adopted rules and given rights to non “registered members” and “the Community” to suit the community needs through the bylaws.
Ashok’s response was not meant for the public and so i won’t comment or refer to it, but It is clear that the proxy limitation for elections was a "community decision" to accommodate a situation and shall be treated as such.
One would expect the debate to stay at the community level and not involve the Act. The community to discuss and agree on how to manage this issue.
Referring to the Act beyond what its applied to “Registered members” seems inappropriate and can lead to questioning may other things…
1- Since “Resource members” are not recognised by the Act, why is the rules on proxy towards them subject to the Act ?
2- if we were to amend to comply to the Act, will this not only applied to the “Registered members”?
3- what is the meaning of the rights given to the “resource members” by the bylaws ?
Furthermore, if we go back to the original discussion of amending the bylaws to improve the accountability:
- who is being accountable to who ?
- what powers does the "registered members" have over the organisation beyond electing the directors to become “Registered members” ?
If i take my favorite example, point 11 of the assessment document(see below),how will amending the bylaws as suggested below will prevent the “Registered members” from unilaterally amending the bylaws at 75% of votes among them as this would be by powers reserved to the members, the “registered members” by the Act ?
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.
All of these said, i suggest that we continue the discussions on the proxy and the general accountability improvement in the spirit of AFRINIC, the Community. The GC shall lead future discussion on AFRINIC legal status to fix this to the end.
Hope this helps
> On Sep 30, 2016, at 4:24 PM, Alan Barrett <alan.barrett at afrinic.net> wrote:
> Hi Ashok,
>> On 30 Sep 2016, at 15:27, Ashok Radhakissoon <ashok at afrinic.net> wrote:
>> Dear Alan,
>> I am only replying to you on this as I advise the Board only.It is only during an AGMM, when called upon, that i intervene.
> Actually, you replied to the mailing list, but no harm done. I am also replying to the mailing list, and I have asked for the mailing list configuration to be changed so that it does not automatically add a “Reply-To” header in future.
>> You are right in stating that the Company's Act takes precedence over the bylaws.
>> I recall that after the Cairo election, the Community felt that bringing a substantial number of proxies especially from a particular region where AFRINIC membership was dense could not from a "community " perspective give the best representation for the Africa regions.This is why the limitation of the number of proxies was introduced and voted by the community.
>> This provision of the bylaws would in no way withstand legal challenge as suggested by
> Thank you for the advice. I suggest that the limit on pnumber of proxies should be removed.
> Alan Barrett
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