[Community-Discuss] Accountability assessment - quorum

Mon Oct 3 08:49:21 UTC 2016

Writing in my personal capacity.

Firstly, let me point out that anything I write on this list – unless explicitly stated – is written in my personal capacity and not as a director.  What I write here is not necessarily representative of the wider board views and should the board be taking a position on something it will be communicated as such via the chairperson or someone delegated that responsibility by the board.  So please, let us not mis-interpret my words as the words of the board.

Secondly – my understanding of this situation is actually more complex than what is being stated on these lists.

Let us examine the clause in question:

(viii) No member entitled to vote during an election held by the Company shall carry more than five (5) proxies during the said election; and

There is no limitation anywhere – and I would argue that you cannot limit this either – that states that proxies must be given to members.  In fact in no proxy that I have seen used at AFRINIC is a proxy issued to a member, it is issued to an individual who then represents the entity that granted the proxy.

As such, the above clause is null and void.

As an example:

If entity X issued a proxy to a specific COMPANY (or Member) – then the limit would apply.
If entity X issued a proxy to a person who was a member in their own right (which ONLY applies to my knowledge in the case of an extremely limited number of associate members) – the limit would apply.
If entity X issued a proxy to a person who was NOT a member in their own right, but merely WORKED for a member, then the proxy has been issued to a non-member, and the above clause is null and void and has no application.

Under your argument – if the proxy is issued to a registered member – by the act the rule would not apply.  This also deals with the fact that registered members are members in their own right (as with the associate members referred to above) – so again – the limitation does not apply.

Effectively, my reading of the above clause in the bylaws is that it is a mute point and the text in the bylaws is extraneous since it is not in any way enforceable.

Again – open to hearing legal opinion on this.

Thanks

Andrew

From: ALAIN AINA [mailto:aalain at trstech.net]
Sent: 03 October 2016 11:35
To: General Discussions of AFRINIC <community-discuss at afrinic.net>
Subject: Re: [Community-Discuss] Accountability assessment - quorum

Hello Andrew,

I respect Afrinic Directors and follow good rules of conduct. So I will not return to the disparaging  words used in your response to me.

Let me put this in a few points here again:

1-  I never said to not follow or comply with Law

2-  I called for clear understanding between an Act provision applying to “registered members” and  not to “resources members”.

2- AFRINIC has always followed the Act, laws, but also accommodates its community oversight.

The limit at “5” of the number of proxy is lawful when applied to “registered members”. How ?

Quorum at Members general meeting is set as follow:

======

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.
==========

So  five (5) registered members in person are required.

With nine (9) registered members in total and a quorum requirement of  five (5) members in person how many proxies can a registered member carry to a valid AGMM ?

The limit to “5” means “no limit for the registered members” and that complies to the act.

Hope this helps

—Alain

On Oct 2, 2016, at 12:26 PM, Andrew Alston <Andrew.Alston at liquidtelecom.com<mailto:Andrew.Alston at liquidtelecom.com>> wrote:

Mirriam,

I was speaking in my personal capacity – firstly - and I stand by my right to do that.

Secondly – What was the point?  Let me tell you a story – In Djibouti there was an attempt to block several proxies using an argument of company stamps.  That argument went on for many days – it was eventually invalidated – because it was determined that it would disenfranchise the members who had no company stamps and was invalid.  However, it was a direct attempt to stop certain things through the change of the rules (well, that is my impression).

I take serious issue with this statement specifically:

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.

You cannot ignore the act – I am not a lawyer – my reading of the act is in laymans terms – and there are many lawyers that can contradict what I’m saying and I’m ok with that.  I was NOT arguing from the perspective of proxies here – look at the holistic essence of my email – the only place I referenced proxies was as a specific example of how the companies act can restrict the bylaws from overriding it.

What I was saying is that leaving the act out of an argument about the bylaws doesn’t make sense and is – in my view – irresponsible.  The act is supreme and overriding, and ignoring it can have serious consequences.

I stand by the position that ignoring the law is dangerous.

Andrew

From: Mirriam <mirriamlauren at yahoo.com<mailto:mirriamlauren at yahoo.com>>
Reply-To: Mirriam <mirriamlauren at yahoo.com<mailto:mirriamlauren at yahoo.com>>
Date: Sunday, 2 October 2016 at 10:36
To: Andrew Alston <Andrew.Alston at liquidtelecom.com<mailto:Andrew.Alston at liquidtelecom.com>>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net<mailto:community-discuss at afrinic.net>>
Subject: Re: [Community-Discuss] Accountability assessment - quorum

On 1 Oct 2016 19:07, "Andrew Alston" <Andrew.Alston at liquidtelecom.com<mailto:Andrew.Alston at liquidtelecom.com>> wrote:
>
> Alain,
>
> Quite frankly – I think what you have said here is, at best, extremely naive and at worst incredibly irresponsible.
>
>
Hi Andrew,
You need to calm down. No one here is naive or irresponsible so mind how you respond to others and have some respect else Afrinic code of conduct comes into play and i hope the CEO and Chair will caution you.
In fact your message is full of exaggeration. What exactly is your point considering following this discussion you seem to have jumped arguments from company bylaws to company act?
Everyone herein is well aware that our " Afrinic is a private company registered in Mauritius with a Community Oversight through its Bylaws and remains a community/resource members driven organisation" otherwise we would not all be here deliberating on how to improve the organisation.
You are one of the directors elected to the board to respresent the very resource members who elected you and as such you are answerable to us just as all the other directors who the membership sends to the board.
So what exactly is your point with that long email as what was being discussed was plain simple proxy limits?

Mirriam

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