[Community-Discuss] AfriNIC Bylaws Feedback

[Owen DeLong]

Since the bylaws feedback period was extended, I decided to take advantage of the time and do a more thorough review of the bylaws. Below are my findings. While the message is long, I believe that each and every finding is pertinent to improving the bylaws to make a more functional organization. Some are merely typographical corrections while others are more substantive.

This email strictly attempts to address the errors and omissions in the bylaws without contemplating any major changes to the intent or the structure of the organization.

I hope the community and the governance committee find this work useful:

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The word OBJECTS in section 3 would (at least in the US) most commonly be expressed as “Objectives”. Perhaps this (seemingly odd) terminology is an artifact of Mauritian legal construction and/or translation from French, but absent a pressing need to preserve the exact term, I would suggest that “Objectives” more accurately represents the intent here…

See: https://www.dictionary.com/browse/object
vs.: https://www.dictionary.com/browse/objective?s=t

In section 3.4, there are a couple of places where I believe AfriNICs duty would be better expressed to the community rather than the membership. Specifically:

3.4 (v) …in the best interests of members… suggest …in the best interests of the African internet community…
3.4 (vi) …standards related to internet service provision to members. suggest … standards related to internet service provision to the African internet community.

4.1 should be made more generic unless there is a legal prohibition of same. For example:

4.1 Funding for the running of the Company shall be realized from the following:

	(i) Fees for various services related to the registration of internet number resources
	(ii) grants and voluntary donations
	(iii) fees for other services such as training
	(iv) such other sources as may be deemed appropriate from time to time by the Board

6.3 is awkwardly worded. Suggested replacement:
6.3 Individuals elected as Directors in accordance with Article 13 below shall be Registered Members. The Chief Executive Officer, also, shall automatically be appointed as a Registered Member. Prior to appointment as registered members, each individual shall sign such forms as may be prescribed by the laws of Mauritius and to contribute Rs. 500 (five hundred Mauritian rupees only) in the event of the Company being wound up according to Article 22.

Suggest adding the following sections:

6.5 Associate Member - A legal entity shall be deemed an Associate Member after completing the following actions cumulatively:
(i) Demonstrated that he/she/it is based within the AfriNIC service region or operates a network within the region.
(ii) Signed AfriNIC’s associate membership agreement and completed AfriNIC’s associate membership application.
(iii) Paid the applicable membership fee to AfriNIC.

7.1 I see no reason not to include associate members in this section. Suggested rewording:

7.1 Each member (regardless of type) shall be entitled to receive notice of all member meetings in accordance with Articles 12.4 and 12.11 below, as applicable, and to attend all such meetings.

7.2 I do not believe associate members should participate in the election of the Board and I believe that this provides a path for organizational capture.
Suggested rewording:

7.2 Annual General Members Meeting Rights
(i) Resource and Registered members shall be entitled to, by majority vote on the day of each Annual General Members’ Meeting, to elect the Directors of the Company in accordance with Article 13.5 below.
(ii) All members (regardless of type) shall be entitled to discuss and comment on the general policies of the Company on such issues and for such a time as shall be reasonably allowed by the chairperson of the Annual General Members’ Meeting.

If my suggestions to amend the above sections are taken, then sections 7.4 and 7.5 become obsolete and should be deleted.

7.6 section (iv) suggest replacing the word “objects” with “objectives” as above.

8.2 does not allow for the transfer of a resource membership in the event of death of an individual resource member to a willing successor heir.

Suggest modifying 8.2(i) as follows:

(i) the Resource Member, if not an individual, ceasing to exist pursuant to the laws fo its country of incorporation or, being an individual, upon his death except that an individual may provide for the transference of his resource membership to an heir or successor which takes on the continued operation of the network requiring the resources associated with the membership.

Section 9.1 is an absurd tautology… No person is a candidate at the time of appointment of the Nom Com because the Nom Com selects those individuals to be candidates.
Suggested rewording:

9.1 No person shall be appointed to the Nom Com if that person states an intent to become a candidate in an election for which the Nom Com is nominating candidates. No person who is domiciled in a region whose seat is open for renewal in the current election shall be appointed to the Nom Com.

Section 9.2 lacks transparency and is open to abuse. Suggested rewording:
9.2 The Nom Com shall report to the Board and operate under such guidelines as may be prescribed by the Board. All such guidelines shall be published to the AfriNIC membership and to the African Internet Community no less than 90 days prior to the selection of members of the Nom Com.

Section 9.3(a) is unclear on what constitutes “a satisfactory number of individuals”. Suggest modifying this to specify no less than 2 individuals for each open seat in the election.

Typographically, 9.3(ii) d) should be on the line below c).

Section 12.1(iv) does not address the potential situation where someone believes that the chair of the meeting has acted outside of the constitution. Propose adding the following:

12.1(v) In the event that a point of order is raised claiming that the chair’s ruling in the preceding subparagraph is not in line with this constitution, the motion shall be heard by the board members present. The chair may then limit discussion of the matter to any reasonable amount of time not less than 10 minutes, followed by a vote of the board members present to determine if the chair’s ruling was consistent with this constitution. If the board members determine that the chair’s ruling was out of order, they shall come to consensus on an alternate ruling and present that new ruling to the community. That ruling will be final and not subject to any appeal.

There is ambiguity in section 12.3 where it could be construed in multiple ways as to the class(es) of members represented.

“All members entitled to attend and vote” could be either interpreted as the intersection of members entitled to attend and those entitled to vote (that is only those who have both rights) or it could be interpreted as the union (that is both members entitled to attend and members entitled to vote). Indeed, since there are no members entitled to vote who are not by the nature of that right also entitled to attend, one could argue that the intersection is not the logical interpretation and therefore the union must have been the intent of the framers. IMHO, the community should discuss this matter and come to a consensus on which intent more accurately reflects the best interests of the membership and the community.

If the intent is truly the intersection, then I suggest simply removing the reference to members entitled to attend as it is superfluous verbiage which creates unnecessary confusion.

If the intent is truly the union, then I suggest simply removing the reference to members entitled to vote as it is then superfluous verbiage which creates unnecessary confusion.

I believe that section 12.4 could be abused in order to deny some subset of members their rights. As such, I suggest that it either be stricken or severely limited in its scope (i.e. place limits on the number of members omitted or otherwise curtail the potential scope of abuse that could be committed under this section. I believe this matter should be specifically discussed by the membership and the community to come to consensus on the best limitations to be placed here.

The language in section 12.5 (or where directed by the Annual General Members’ Meeting) is difficult to parse in its limited context. Suggested replacement of 12.5:

12.5 The chairperson may of necessity, or where directed by vote of the members present, adjourn the Meeting from time to time and from place to place, but no business shall be transacted at the reconvening of any adjourned AGMM called under Article 11.1 other than the business left unfinished at the AGMM from which the adjournment took place.

I do not believe that 12.7 is appropriate. I believe that associate members, while not receiving voting rights should be given the right to speak and comment on regular and special motions and other matters at an AGMM. I suggest:

12.7 Associate members may attend and participate in the AGMM, though they shall not have the right to vote on matters before the membership.

Section 12.9 does not (technically) allow for e-voting to begin before the day of the meeting. Also, the “such other method of communication” clause could be subject to abuse. I suggest that a limit should be placed on that clause providing that any changes to the mechanism of voting must be noticed to the community prior to the announcement of the slate by the Nom Com.

I believe that the quorum requirements in 12.10 should be overhauled. The number of resource members allowed to constitute quorum is incredibly low compared to the current resource membership of AfriNIC and could be abused. Further, the requirement for elected directors has proven onerous under the current circumstances. As such, I suggest that the word “elected” be replaced with “elected or appointed” in 12.10(ii) subparagraphs a) and b). I believe the community should discuss and come to consensus around the number of resource members required for quorum, but would suggest that not less than 20 would be worthy of consideration.

There is a problem with the language in 12.12(viii) in that a proxy who is not a member would not be subject to any limitation while a member would be limited to casting a total of six votes. Further, the limitation is on the number of proxies carried during the election rather than the number of proxies used in the election, thus further restricting a member from carrying proxies that may be used during votes on motions due to the nature of the time required to appoint a proxy vs. the time of the election. Personally, I think that this whole rule is rather absurd and contrary to the interests of the community, but I understand that it has wide support in the community. As such, I would suggest the following replacement:

(viii) No entity (whether natural person or corporation) may exercise more than five (5) proxies during any election held by the Company. If said entity is a member entitled to vote, this will allow the member to exercise up to six (6) votes. If said entity is not  a voting member, then it would limit the member to no more than five (5) votes.

Section 12.13 does not require minutes for members’ meetings other than the AGMM. This is absurd. Suggest replacing “Annual General Members’ Meetings” with
“Members' Meetings” in 12.13 subparagraphs (i), (ii), and (iii).

Section 12.13 should require the publication of the minutes on a timely basis. Suggest adding to section 12.13

(iv) The Minutes of all Members’ Meetings and Board meetings shall be published (made available to the general public electronically in accordance with the preceding subparagraph) upon approval by the board, but in no case more than 30 days after the conclusion of the meeting represented in the minutes.

Section 12.14(ix) should be stricken. The board should not have the right to censor proposals from members and refuse to bring them to a floor vote.
Alternatively, should the body choose not to strike 12.14(ix), then there should be added a mechanism to appeal the board’s decision to reject such a matter to the membership and there should be a threshold established for the membership to be able to override said board decision. (e.g. "if no less than 10 members eligible to vote agree that the matter should be heard and voted upon by the membership at the meeting, then the board’s decision shall be overridden”)

Section 13.1 et. seq. probably needs a rewrite given that it was not followed by the board in response to the events in Dakar.

Section 13.4 I believe it is time to increase the number of directors which are appointed at-large, either by expanding the board or by consolidating some of the regions. I propose that the number of at-large directors should be equal to the number of regional directors.

Section 13.7 is inconsistent with Section 13.1. This should be remedied.

Section 13.14 is inconsistent with Section 13.1. This should also be remedied.

Section 14.1 subparagraph (v) fails to contemplate other mechanisms by which the CEO may depart (resignation, death, etc.). This should be corrected.

Section 16 should be deleted and the Council of Elders should be disbanded and thanked for its service. While this council provided benefit to the leadership of a younger organization in previous years, that time has passed and the council has become an anachronism which is not, IMHO, benefiting the organization.

Section 19.9 should be stricken, ideally being replaced by:

19.9 Votes of the Board shall be by roll call vote and the vote of each member shall be recorded in the minutes of the meeting.

19.13 should be brought into the 21st century:

(iii) The board may pass a resolution by the affirmative vote of two-thirds of all Directors then entitled to vote submitting their assent to the secretary of the company and the board by email except that any such resolution shall be subject to a board member repudiating his alleged vote within 10 days of the notification of the vote. Any resolution thus repudiated shall require a voice vote at an actual meeting of the board in order to be passed. This repudiation to be used to prevent resolutions through e-mail fraud or impersonation.

Respectfully submitted,

Owen DeLong
owen at delong.com