[Community-Discuss] AFRINIC legal was ( [members-discuss] Faulty result for Western Africa in AfriNIC AGMM Elections)

Wed Jun 13 10:10:20 UTC 2018

Members

Many things went wrong in Dakar and Many more went very well.   

As disturbing as it is I urge we look forward, learn from the history as opposed to becoming captives of our past.   

 Some of the wrongs are people related which calls for some kind of introspect and hopefully  behavior changes for the better.

Some of the wrongs are policy and process related which we have full powers to fix and should now focus our energies at fixing.

The chair shared a fair summary of the current situation and I urge and request we close this chapter.

Continuing this thread is a zero-sum game which gives legitimacy to those would be distractors of AfriNIC.

The Election in Dakar was a minor setback in the life of AfriNIC.  

Members will come and go, elections will come and go, the institution that is AfriNIC will be here to serve many more generations to come.

Regards

Badru

From: "Marcus K. G. Adomey" <madomey at hotmail.com>
Date: Wednesday, June 13, 2018 at 12:41 AM
To: Andrew Alston <andrew.alston at liquidtelecom.com>, DANIEL NANGHAKA <dndannang at gmail.com>, Ashok <ashok at afrinic.net>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net>, AfriNIC Discuss <members-discuss at afrinic.net>
Subject: [Community-Discuss] AFRINIC legal was ( [members-discuss] Faulty result for Western Africa in AfriNIC AGMM Elections)

Dear Legal Counsel,

Second  opinion is always good when clearing disputes and to show confidence in a system. You playing judge and party  is awkward. All the disputed issues are from actions and decisions  supervised  by you. it is more appropriate  for you to recommend that they are resolved  otherwise.

We expect from  AFRINIC  legal counsel  to make sure, processes, guidelines are unambiguous, strictly followed and the appropriate  dispute resolution mechanisms are in place  and tell the board the right thing to do  in case of dispute.

By the way, how often does AFRINIC  change its legal counsel?

Thanks

Marcus

From: Ashok <ashok at afrinic.net>
Sent: Friday, June 8, 2018 11:53:36 AM
To: Andrew Alston; DANIEL NANGHAKA; Marcus K. G. Adomey
Cc: General Discussions of AFRINIC; AfriNIC Discuss
Subject: Re: [Community-Discuss] [members-discuss] Faulty result for Western Africa in AfriNIC AGMM Elections 

Dear All,
I am the legal adviser of the company AFRINIC Ltd. Hence for me to act in one way or the other
I need to get instructions from the company.As presently advised I have not received any instructions 
to seize the court for adjudicating on the matter.
 For the record,I have already communicated my views to the community on this matter ( vide my mail dated 17.05.2018).If any party wishes to challenge these views, they are free
to take same to court. Obviously it cannot be me.
Regards
Legal Counsel-AFRINIC.

On 08/06/2018 13:30, Andrew Alston wrote:

The answer to that is simple,

For something to be sorted in a court of law – someone has to take it to court. 

Since the people who members of this community claim were disenfranchised by the vote have not taken it to court – and since there are many – who include the AFRINIC legal council based on his previous statements, who believe that the correct actions were taken – how is it going to be sorted in a court?

If someone wishes to approach the Mauritian courts to adjudicate this – let them do so – but that requires someone willing to spend the money and resources to do that – and right now – I see a lot of people whining – but I don’t see anyone willing to dedicate the resources to doing that – and for AFRINIC to approach the court – when they have already stated clearly how they view the situation – would be equivalent to litigating against themselves.  I hardly see that happening

Andrew

From: DANIEL NANGHAKA [mailto:dndannang at gmail.com] 
Sent: 08 June 2018 12:16
To: Marcus K. G. Adomey <madomey at hotmail.com>
Cc: General Discussions of AFRINIC <community-discuss at afrinic.net>; AfriNIC Discuss <members-discuss at afrinic.net>
Subject: Re: [Community-Discuss] [members-discuss] Faulty result for Western Africa in AfriNIC AGMM Elections

Why can't this issue be sorted in court?

Don't we have a legal counsel?

On Fri, Jun 8, 2018, 11:36 AM Marcus K. G. Adomey <madomey at hotmail.com> wrote:

Dear CEO and Legal Counsel,

I wrote asking for some clarification which should come from your offices. Up to now I have not received any response. I would be most grateful if you could spare some few minutes from your heavy schedule to do justice to my questions? 

Thanks

Marcus

From: Marcus K. G. Adomey <madomey at hotmail.com>
Sent: Saturday, June 2, 2018 10:32:18 AM
To: mje at posix.co.za; General Discussions of AFRINIC; AfriNIC Discuss; Ornella GANKPA
Subject: Re: [Community-Discuss] [members-discuss] Faulty result for Western Africa in AfriNIC AGMM Elections 

Hello,

Thanks Ornella and others who has been actively participating in this discussion to help clear this issue once for good.

Can someone explains to me why  “none of the above”  votes were not counted for  2017 elections  as it  was done for election 2018 ?

https://www.afrinic.net/fr/news/2139-results-of-afrinic-agmm-election  - 2017

https://www.afrinic.net/fr/news/2391-results-of-afrinic-agmm-elections - 2018

Marcus

From: Ornella GANKPA <honest1989 at gmail.com>
Sent: Friday, June 1, 2018 5:34:13 PM
To: mje at posix.co.za; General Discussions of AFRINIC; AfriNIC Discuss
Subject: Re: [Community-Discuss] [members-discuss] Faulty result for Western Africa in AfriNIC AGMM Elections 

Hi Mark

My comments inline

Le 30/05/2018 à 19:13, Mark Elkins a écrit :

On 30/05/2018 19:20, Arnaud AMELINA wrote:

Owen, 

2018-05-29 22:34 GMT+00:00 Owen DeLong <owen at delong.com>:

Arnaud, 

While I agree that additional clarity is needed and I agree that there is some validity to the claim that none of the above MAY not have been a legitimate choice to place on the ballot, I think we cannot go changing the rules of the election and violating the expectations of the voters, membership, and community after the election has run.

Voters, membership and community are saying: <<a mistake has been made; let's fix it!>>

And members are saying "We are happy with the outcome" (I am, anyway). The only folk that should be commenting on this are the voting membership.

Why is the former board member and board chair so nervous about the scope of this discussion?  This is a matter of concern for the community at large. This is not a remake of the elections. Or maybe,  it is time to listen to the other 1409 members who did not vote?

Nobody raised an objection to the presence of none of the above on the ballot for seat 2 prior to or during the election.

No one is raising objection even now on  this option being on the ballot as the guidelines are clear on that. the issue at hand is the correct implementation  of the guidelines as written.

Since there were more than enough voters who selected none of the above to change the result among the remaining two candidates, it is not legitimate to simply discard the none of the above votes and declare one of those candidates a winner. Indeed, I would argue that is the worst possible choice among all other options.

The other options as I see it are:

1. Allow the board to treat the seat as vacant and appoint a board member until the

next AGMM.

2. Treat none of the above as a valid election result (in which case it should be

considered the same for all 3 seats) and preclude the board from appointing

anyone to the seat(s) until an election can be run.

3. Treat none of the above as a valid election result only for seat 2 and preclude

the board from appointing seat 2 while still allowing them to appoint seats 5

and 6.

As I see it, the best option is option 1. It allows the organization to proceed with a full board until the next AGMM where a hopefully more effective election can be accomplished.

I think option 2 is bad because it leaves the board precariously short-handed with only 5 of the expected 8 members, including the CEO. (The 3 elected members which remain, whoever is appointed to fill Haitham’s vacancy, and the CEO).

The problem I have with option 3 is I have trouble justifying treating the election of “none of the above” differently in this circumstance than in the case of a single unopposed candidate. In both cases, more voters felt that they didn’t want any of the options on the ballot and voted not to elect any fo the candidates. The outcome is, IMHO, the same regardless of the number of candidates and should be handled identically.

Why? There are places in the world where "none of the above" is on ballot and has not effect on the results 

What would the point of that be then - or are people confusing "None of the above" with "Abstain" ?

The guidelines  say:
"The ballot paper should provide voters with the option to not vote for any candidate (a. k.a. "None of the Above")"
It does not say to "reject all  the proposed candidate". 
It says to not vote  for any candidate and the guidelines states that , the candidate with the highest votes wins.
Let us stop  this harmful interpretation.

and candidates with the highest votes wins. It is matter of the elections rules. In the current  situation,  the guidelines are clear  and explicit  on how we should  handle the results. So let follow it and engage on discussions  for amending the rules  if we see need to do so.

I was on the Board when this was introduced (6 or so years back?). Its doing exactly what it was intended to - that if a person does not like *anyone* on the list of choices - the member can instead select "none of the above". Why does this seem so hard to grasp? 

Can you point to board meeting minutes, resolutions or any other document   which support your statement?  Some seems to refuse to read the guidelines  and just regurgitate whatever works for them.
The guidelines are clear and may have not been written to match your statement.

I also fail to understand why this is fine when there is only one natural person on the list but not fine when there is more than one natural person on the list.

One explanation:
When I only have one candidate, the vote becomes a "yes" or " no" vote . I need a way to count the "no" vote.
a- change the ballot to  "yes" or " no", "in favor" or "against "
b- use  natural candidate and " none of the above"
We were  using b)

Hopefully additional clarity can be achieved prior to the next election and we won’t have to face this issue again. Personally, I like the idea of having “none of the above” as an option in all cases.

Clarity and fairness is the outcome of the complaint regarding seat 2 here imho; for the rest we can agree to disagree.

I agree to agree with Owen.

Owen

Thanks

On May 29, 2018, at 14:56 , Arnaud AMELINA <amelnaud at gmail.com> wrote:

Dear Ashok as a lawyer you know that there is the law and spirit of the law, please read bellow  

2018-05-25 11:18 GMT+00:00 Ashok <ashok at afrinic.net>:

Dear All,
I apologize for having  missed your rejoinder to my mail.

Despite the delays, we appreciate your response as the matter is of great concern.

Your first question regards the reason as to why the same principle has been applied to the election for Seat 2 
notwithstanding the fact that there were two candidates.
My response is that an election cannot be run on different principles. In this particular election the option "none of the above " was 
introduced for the first time and everyone was aware of this and it applied to all the elections held on that day. The Election guidelines were amended to acomodate this option.

Yes indeed and the elections guidelines explicitely addressed the case of only a single candidate running for election and the option " none of the above" in this case got more votes than the sole candidate but is very silent in the case of multiple candidates running for elections with the option "none of the above" getting more votes. 

Anytime elections involve the option "none of the above", there are always clear rules on how the results are interpreted and the actions that must be taken when the option "none of the above" get more votes than the multiple candidates. 

It's not my intention to teach you something here, but it does look very bizarre that the legal counsel never bothered to help the board to make  the guidelines unambiguous  and conform to members expectations.

Consequently this option has to be taken in consideration when finalising the results.
Where there were two candidates. The options for voters were (1) yes for candidate (1)-((2) yes for candidate 2-(3) yes for non of the above.Each one is mutually exclusive.
Each score to be counted separately. The majority for either option wins the day. 

Following  your reasoning above and the guidelines which say the candidate with the highest votes win, the members and community should then accept "none of the above" as the elected candidate and seated although "none of the above " did not go through Nomcom and was not listed on the candidates slates  published by Nomcom.

Which means seat 2 should not be declared vacant to be filled by board.

Filling  seat 2 by board would constitute the violation of "none  of the above" rights and of our rules and thus expose us to legal litigation.

One should not create a fictitious majority by adding votes polled by (1) & (2) together. The real majority was to all intents and purposes the option which polled the most votes. There is no need to extrapolate or interpret. 

There is No fictitious majority being created. It was just an example of how this case could have been interpreted just like you do have your own interpretation. 

In many cases,  abstention is compared to voters in order to decide how to proceed with  validating an election and counting results..

Where there was one candidate there were two options- Yes for the single candidate or yes for  "non of the above"

The case of a sole candidate is clear as per the guidelines and there are no objections on seat 5 and 6 results.

My reference to Art 10.2 was based on the decision of the members present at  past AGMMs to have the option of rejecting a single candidate or to give their approval to the single candidate, This has occurred more than once.

And once again,  the case of a single candidate is handled as members agreed to and not debated

Thank you

Legal Counsel AFRINIC. 

On 24/05/2018 21:11, Arnaud AMELINA wrote:

Dear CEO and Chairman

It looks like the Legal counsel has not  responded to this query bellow   regarding this very important issue about the recently concluded elections. 

Could you kindly remind him?  

Let us address this to a good conclusion in order to enforce the respect of our rules and processes.

Regards 

Arnaud 

Le sam. 19 mai 2018 11:40, Omo Oaiya <Omo.Oaiya at wacren.net> a écrit :

Dear Legal Counsel,

Thanks for your input.  Much appreciated. 

Your statements reinforce the interpretation of section 9.2 of the guidelines with the origin of the "none of the above" option in the election process and how votes for this option are considered in the case of one candidate running for election for a seat. [Last bullet point] 

Case in which the election becomes a "yes" or "no"  vote for the only candidate.   This point is clear and accepted and the objection is not for the results for seat 5 and 6.

What has not been clarified is how the same principle came to be applied for the elections for seat 2 which had two candidates running for the seat, one of whom got higher votes than the other, with the total number of members casting votes in excess of those opting out.

You also referred to art 10.2 of the constitution but did not elaborate on the precedence that occurred that has become an integral part of our guidelines.  As precedence automatically becomes part of the election guidelines, it is important that we address issues which come up around the election with care and unambiguously. 

Can you be so kind to clarify? 

Best wishes

Omo

PS:  Grateful to listers to please keep this thread confined to the subject.

On 17 May 2018 at 17:17, Ashok <ashok at afrinic.net> wrote:

Dear Members and Community,
Mt views have been sought on the matter under reference.
Please find same hereunder.

On 17/05/2018 14:04, B 

The Election Process and last AGMM.

The appointment of Directors is carried out during an AGMM of the Company –Art 13.1 of the constitution.

The election of the Directors is carried out in terms of Art 13.2 of the constitution which refers expressly to the election process approved by the Board.

Moreover  Art 10.2 of the Constitution refers to precedent applied during an AFRINIC election and which de facto become part of the election guidelines. 

The election process  as it stands today is the one which was applied during  the elections held during the last AGMM without any opposition.

This is what it provides:

9.2 Paper Ballot on Election Day

The voting conducted during the Annual General Members' Meeting is carried out via paper ballots containing a list of candidate names and a ballot number. Prior to the vote, all members present or participants holding a proxy will be requested to register and validate their membership status.

§  Voters should only vote for one candidate per category/region. Each mark on a ballot paper represents one vote. A ballot with more than one mark per category/region will be considered spoilt, and not be counted. 

§  The ballot paper should provide voters with the option to not vote for any candidate (a.k.a. "None of the Above"). 

§  This will be a secret ballot election. An inclusion of any personal data on the ballot paper will invalidate the vote and will be counted as spoilt. 

§  Elections will be closed as soon as the last member or proxy present in the meeting room casts his/her vote. Candidates with the highest number of votes in each category will be declared winners. 

§  In the event of a tie for an open position, voting for that position will be repeated (Only by paper ballot) the same day until there is a winner. 

§  All open positions shall be subject to an election process even if there is only one candidate. In that event, if the option [none of the above] got more votes than the only candidate, then the seat shall be considered vacant and the Board will be requested to apply provisions of the Bylaws to temporarily fill the vacant seat 

The last amendment of the election guidelines introduced the voting option “ None of the Above”. –(Vide second bullet point above.)Those voters who have cast their votes for “ None of the Above” have done so in compliance with the prevailing  constitution  and these are thus valid votes. Every voter was aware of the new option.

The election guidelines are clear as to what happens when the “ None of the Above” option has a majority.- (Vide last bullet point above.)

The election guidelines must be read as a whole and all the provisions read together.

Legal Counsel –AFRINIC

17.05.2018

oubakar Barry wrote:

Hello Board and Legal Counsel,

Good that Omo spotted this. 

It’s a matter of applying the board election process adopted by the board according to section 13.2 of the bylaws. 

https://afrinic.net/en/community/elections/bod-election/process describes the process and section 9 spells out how to interpret the results in the case there are more than one candidate and in the case there is only one candidate. These two cases are addressed separately and differently.

It’s important to hear from the Board and the Legal Counsel, as the elections can be challenged.

Please advise.

Regards.

Boubakar

On Wed, May 16, 2018 at 5:24 PM, Omo Oaiya <Omo.Oaiya at wacren.net> wrote:

Greetings All,

I am looking at the BoD election process and it seems to me that the recent e-mail from the Board Chair seeking nominations for vacant seats should not be extended to Western Africa.  

The particular clause I am referring to is in 9.2 - https://afrinic.net/en/community/elections/bod-election/process

·         
Elections will be closed as soon as the last member or proxy present in the meeting room casts his/her vote. Candidates with the highest number of votes in each category will be declared winners 

I see from the list for West Africa that the candidate with the highest number of votes should have been declared winner and this is Dr Ousmane Tessa.  (btw, Dr Adewale Adedokun needs his name spelt correctly)

Western Africa - Seat 2

Dr Adelawe Abedekon - 43

Dr Ousmane Moussa Tessa - 56

None of the above - 78

Result: The seat is vacant

The results from the other regions are valid and supported by the following clause as they had one candidate. 

o    All open positions shall be subject to an election process even if there is only one candidate. In that event, if the option [none of the above] got more votes than the only candidate, then the seat shall be considered vacant and the Board will be requested to apply provisions of the Bylaws to temporarily fill the vacant seat.  

Can AfriNIC and the nomcom please clarify?   We should not deprive Dr Tessa of a rightful win …. especially in the circumstances we find ourselves.

Omo

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