[Community-Discuss] Requests and questions

[Abibu R. Ntahigiye]

Dear Mr. Andrew,

The Board recalls a number of questions you did put forward on July 14th 
July 2017. One of the issues asked was about the competition with 
regards to the operations of Afrinic.

I would like, for the records, to update you and the community as follows:

1. On same day (14th July 2014) the former Board Chair provided an 
acknowledgement of the e-mail and promised a response within 60 days;

2. On 23rd Sept 2017 (10 days after the promised deadline) the former 
Board Chair apologised for the failure to meet the deadline and 
requested for another 2 weeks.

3. On 3rd October 2017 (about 4 days before the requested new deadline) 
the former Board Chair replied with the message that included the 
following text:

Q1. Can the Board please commission an investigation into whether the 
lack of a bi-directional transfer policy puts AFRINIC at risk of running 
afoul of the Mauritius Companies Act of 2006, and in what areas, and 
exactly what the potential liability is?

A1:As you know, AFRINIC's ‘Board of Directors’ is bound by Section 143 
of the Companies Act "to act in good faith and in the best interests of 
the company". In order to do so, the Board is bound by AFRINIC’s 
Constitution, policies and best practices of corporate governance. You, 
as an ex-board member know that AFRINIC Board of directors makes effort 
to keep away from interfering in policy discussions as a Board, 
irrespective of whether it is the in-bound transfer or the 
bi-directional transfer or any other policy to preserve the core 
principle of “bottom-up” process as indicated in AFRINIC PDP. It is not 
possible to assess whether there is a risk or a potential liability 
under the Mauritian Companies Act 2001 in the absence of a proposal 
about bi-directional transfers. Given that the policies for number 
resources are determined by the Internet Community, it is up to the 
Community to take the initiative to propose a bi-directional transfer 
policy if it believes that there is a need for such a policy.

Q2. Can the Board please advise the time frames required to commence 
such an investigation, and once said investigation has been 
commissioned, advise on the time frames to complete said investigation, 
and once concluded advise the community of the full results of said 
investigation.

  A2: If you see a potential or real risk on AFRINIC because of the 
absence of the bi-directional transfer policy with regards to the 
Mauritius Companies Act, let us know in which part or article in the 
Mauritian Companies Act you feel such risks may exist for AFRINIC Ltd. 
The Board will ask the AFRINIC’s legal counsel to investigate it and 
prepare a detailed report about that risk to be published for the 
community. Right now, AFRINIC’s legal counsel is of the opinion that 
there is no current risk of the absence of such policy, in as much as 
the community is not approving such policy for the AFRINIC region.

On same day (3 October 2017), you clarified that you had intended to ask 
about the Competition Act and not the Companies Act.

On 5th October 2017, the former Chair of the Board responded with a 
message that included the following: "The Board will commission an 
investigation into the implications of the lack of a bi-directional 
inter-RIR transfer policy, with respect to the Competition Act. We 
expect the work to start by 20 October 2017 (2 weeks from now). We do 
not know how long the investigation will take."


Now, I would like to inform you and the whole community that the Board 
did indeed begin an investigation as promised. The first step was to 
seek advice from AFRINIC’s legal counsel, and subsequently to seek 
advice from the Mauritius Competition Commission. Below are the details:

On 7th October 2017 (2 weeks prior to the promised start date), 
AFRINIC’s legal counsel provided an opinion to the Board that there is 
no cause for concern about a potential breach of the Competition Act.
On 8th November 2017, AFRINIC’s CEO and Legal Counsel met with the 
Executive Director of the Competition Commission of Mauritius, and two 
of their head investigators. The Competition Commission undertook to 
investigate and report.

On 14th December 2017, AFRINIC’s legal counsel was informed that the 
Competition Commission had not yet considered our request. As of March 
2018, the Competition Commission has advised that the case is still 
being investigated and AFRINIC shall be informed of any outcome.

Having briefed/updated you and the whole community, I believe we all 
know know the pace at which most Governments/Government Agencies operate 
and therefore the Board is not in a position to promise as to when the 
response from the Competition Commission will be obtained. However, the 
Board  reassures you and the whole community that it will continue 
pushing, through reminders, for the response from the commission.

If there are any questions you believe the Board has not responded to, 
please kindly restate them.

rgds

-- 
Abibu R. Ntahigiye

CEO, tzNIC / Interim Chair, Afrinic

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