[Community-Discuss] Table of changes: AFRINIC Bylaw review

[Antone Bahu]

Hi all,

These few days I have discussed with some of my professors and colleagues,
who are also members of this community regarding the Bylaw review. I
pondered on how the ByLaw could be edited in a manner that allows community
opinion to be presented in an even better way.

Thus, I have a few inputs;





*Existing Provisions*





*Proposed Amendments*



*Rationale for Amendments*



*6.1*

Membership shall be open to:



(i) any Person who is geographically based within, and providing services
in the African region, and who is engaged in the use of, or business of
providing, open system protocol network services; or



(ii) any other Person who is approved by the Board or the members.





To amend *Article 6.1*

*(i)* so that it may be read as follows:



Membership shall be open to *any corporate which complies with Internet
Resources Policy approved by AFRINIC community*







The term “person” shall be amended into “corporate” because most of the
current membership holders are corporate instead of “persons”.



Membership shall be open to any corporate which comply with Internet
Resources Policy approved by AFRINIC community instead of setting
geographical criteria as community discussion is what matters the most here.

*6.4*

Resource Member - A legal entity (local Internet registry or end-site)
shall be deemed to be a Resource Member of AFRINIC after it has completed
the following formalities cumulatively:

(i) justified its need for the right to use Internet Number Resources to
AFRINIC

(ii) signed AFRINIC’s Registration Service Agreement; and

(iii) paid the relevant setup membership fees related to Internet Number
Resources allocated/assigned to it by AFRINIC Registration Service.




To amend *Article 6.4 *by deleting the provisions under (i), so that
Article 6.4 reads as follows:



*Resource Member – A legal entity (local internet registry or end-site)
shall be deemed to be a Resource Member of AFRINIC after it has completed
the following formalities cumulatively:*

*(i) signed AFRINIC’s Registration Service Agreement*

*(ii) paid the relevant setup and membership fees related to Internet
Number Resources allocated/assigned to it by AFRINIC Registration Service.*





AFRINIC is just a book-keeper and shall not be involved in policy-related
matters by requiring Resource Members to justify their needs to AFRINIC.
Also, this shall not appear in Bylaws - how resources are distributed shall
be decided by Policy approved by community discussion.

*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*8.2** (ii)*

The membership of a Resource Member shall terminate upon:



(ii) the Board, acting reasonably and in good faith, determining that the
Resource Member has ceased to satisfy criteria for admission to membership
of the Company or ceased to comply with Number Resources Management
Policies;







To be amended to read as follows:



(ii) *the Internet Resources Policy as approved by the AFRINIC community*,
determining that the Resource Members has ceased to satisfy criteria for
admission to membership of the Company or ceased to comply with Number
Resources Management Policies;







This shall be decided by Internet Resources Policy approved by AFRINIC
community instead of the Board. The Board shall not be involved in Internet
Resources Policy-related matters.



*8.2**(iii)*

(iii) the Board, acting reasonably and in good faith, determining that the
Resource Member has refused or failed to comply with the provisions of this
Constitution or any applicable rule made by the Board;













Propose to be deleted.





This is against the spirit of the community because it leaves a possibility
of the Board abusing its power. There is no general test or safeguard to
determine whether the Board is “acting reasonably and in good faith” and it
allows the Board to make such determination on an arbitrary basis.



*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*8.2**(v)*

such other event or such other grounds as the Board, acting reasonably and
in good faith, shall determine from time to time.







To be deleted.







The original wordings of “such other event or such other grounds” is too
vague and can technically be exercised on an arbitrary basis by the Board
and may thus lead to the Board abusing its power.



Moreover, There is no general test or safeguard to determine whether the
Board is “acting reasonably and in good faith”.



Worst of all, the Board is allowed to make such determination at any time
it desires.





*8.3**(iii)*

the Board, acting reasonably and in good faith, determining that the
Associate Member has ceased to satisfy criteria for admission to Associate
membership of the Company;

























To amend Article 8.3(iii) so that it may be read as follows:



*the Internet Resources Policy as approved by the AFRINIC community*,
determining that the Associate Member has ceased to satisfy criteria for
admission to Associate membership of the Company;









This is against the spirit of the community because it leaves a possibility
of the Board abusing its power. There is no general test or safeguard to
determine whether the Board is “acting reasonably and in good faith” and it
allows the Board to make such determination on an arbitrary basis.



*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*8.3**(iv)*

the Board, acting reasonably and in good faith, determining that the
Associate Member has refused or failed to comply with the provisions of
this Constitution or any applicable rule made by the Board;







To be deleted.







This is against the spirit of the community because it leaves a possibility
of the Board abusing its power. There is no general test or safeguard to
determine whether the Board is “acting reasonably and in good faith” and it
allows the Board to make such determination on an arbitrary basis.



*8.3**(vi)*

such other event or such other grounds as the Board, acting reasonably and
in good faith, shall determine from time to time















































To be deleted.







The original wordings of “such other event or such other grounds” is too
vague and can technically be exercised on an arbitrary basis by the Board
and may thus lead to the Board abusing its power.



Moreover, There is no general test or safeguard to determine whether the
Board is “acting reasonably and in good faith”.



Worst of all, the Board is allowed to make such determination at any time
it desires.





*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*8.4*

Termination shall not relieve a member from any obligation to pay any fees
payable to the Company on or before the date of termination and shall not
entitle the Resource and Associate Member to any refund of any fees,
whether in whole or in part.































































To be amended so that it reads as follows:



Termination shall not relieve a member from any obligation to pay any fees
payable to the Company on or before the date of termination and shall not
entitle the Resource and Associate Member to any refund of any fees,
whether in whole or in part, *whilst subjected to the condition that unless
the termination of membership is due to circumstances not caused by the
Resource or Associate Member then the Resource or Associate Member shall be
entitled to, without further challenge from the Company, refund, whether in
whole or in part, in accordance to the circumstances of each case.*







The circumstances for the termination of membership are very vague and
unclear.



It assumes that even if the incident which leads to the termination is not
caused by the fault/role of the Resource/Associate Member, the innocent
Resource/Associate Member will still not be entitled to any refunds. This
is not addressed in the original wordings of the provision and is
one-sidedly in favor of the Company only.

*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*8.5*

The Resource Member shall, on termination of its membership, return the
resources allocated to it by the Company.







To be amended as follows:



The Resource Member shall, on termination of its membership, return the
resources allocated to it by the Company, *unless such resources is
already allocated or in usage then such resources need not be returned to
the Company despite the termination of the Resource Member’s membership.*







To avoid disruption to end-user.



*11.4*

Notwithstanding, the provisions of Article 11.3 the Board may adopt such
policies regarding the management of internet number resources where it
considers that the same is necessary and urgent, having regard to the
proper and responsible usage of these resources.





















To be amended to read as follows:



Notwithstanding, the provisions of Article 11.3* but subject to Article
11.5,* the Board may adopt such policies regarding the management of
internet number resources where it considers that the same is necessary and
urgent, having regard to the proper and responsible usage of these
resources.





To ensure that Article 11.4 is not read in isolation and instead to be read
in conjunction of other provisions of Article 11. In other words, to ensure
that Article 11 is read and construed in its entirety, i.e. as a whole.

*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*11.5(ii)*

Endorsement of policy adopted by the Board:



(ii) In the event that such a policy submitted by the Board is not
endorsed, the said policy shall not be enforced or implemented following
its non-endorsement; however, any action taken in terms of the policy prior
to such non-endorsement shall remain valid.







To be amended so as to read as follows:



(ii) In the event that such a policy submitted by the Board is not endorsed *or
there is lack of response from the community*, the said policy shall not be
enforced or implemented following its non-endorsement; *however, any action
taken in terms of the policy prior to such non-endorsement shall remain
valid.*



**bold stroked words = to be deleted





If the community does not endorse such policies made under Article 11.4
then it shall not be further implemented even in the absence of any
response from the community.



For the Board to proceed endorsing policies before obtaining the
community’s endorsement for the time being would be equivalent to the Board
implementing policies arbitrarily until it is rejected otherwise by the
community. This may potentially also lead to an abuse of power from the
Board.





*12.4*

Any accidental omission to give notice of an Annual General Members’
Meeting called under Article 11.1 to, or the failure to receive notice of
an Annual General Members’ Meeting called under Article 11.1 by a Member or
any other Person entitled to receive notice shall not invalidate the
proceedings at that Meeting.







To be amended so as to read as follows:



Any accidental omission to give notice of an Annual General Members’
Meeting called under Article 11.1 to, or the failure to receive notice of
an Annual General Members’ Meeting called under Article 11.1 by a Member or
any other Person entitled to receive notice shall not invalidate the
proceedings at that Meeting, *provided that such accidental omission to
give notice or the failure to receive the notice shall not be due to the
fault of the Board.*



This is a very one-sided disclaimer from the Company.



If the Board’s accidental omission to give notice or a Member’s failure to
receive notice is due to the fault caused by the Board then the Board shall
take responsibility for its own mistake by invalidating the Meeting.



Moreover, such an accidental omission to give notice to the relevant
Members can also be used as an excuse for the Board’s personal agenda
whereby the Board may pick and choose which Members are to be notified with
the Board not subjected to any consequences. This could potentially lead to
abuse of power exercised in a subtle manner from the Board.

*Existing Provisions*

*Proposed Amendments*

*Rationale for Amendments*



*15.3*

Without prejudice to the generality of Articles 15.1 and 15.2 above, the
Directors shall be entitled to:

(i) determine the guidelines for the allocation of address space to members
in line with the member driven Policy Development Process;







To be deleted.





The guidelines for allocation of address space shall only be determined
through the consensus of the Members.



The Directors should only assume the role of facilitating relevant meetings
and shall not have any say in matters relating to the determination of the
allocation guidelines.







*22.2*

If on the winding up or dissolution of the Company, there remain any
surplus assets after satisfaction of the Company's debts and liabilities,
the surplus shall not be paid to the members but shall instead be given or
transferred to some other institution or institutions having objects
similar to the objects of the Company. The institution to which the surplus
shall be transferred shall be determined by the members or, in default of
such determination, by the liquidator after considering the advice of the
Board.







To be amended as follows:



If on the winding up or dissolution of the Company, there remain any
surplus assets after satisfaction of the Company's debts and liabilities,
the surplus *shall be given or transferred in accordance to the mutual
decision of the members*. The institution to which the surplus shall be
transferred shall be determined by the members or, in default of such
determination, by the liquidator after considering the advice of the
*members*.











The members are the ones that should have a say in deciding where the
surplus of assets goes to, since it contains their fees money.

The board should not be the one deciding.


I know this is quite long, so I am really grateful for those who took their
time to read it.
Find attached.

*Best Regards,*

*ANTHONY *

anthony.ubah at goldspine.com <anthony.ubah at gloworld.com>.ng


On Wed, Aug 12, 2020 at 3:04 PM AFRINIC Communication <comms at afrinic.net>
wrote:


> [French, Arabic and Portuguese versions below]

>

> Dear Members and Community,

>

> The GovCom was mandated to, inter alia, review the existing provisions of

> the AFRINIC Bylaws and to propose such amendments, where necessary.

>

> In this context, the GovCom had previously called for comments as well as

> proposals for amendments from various stakeholders, including the

> Community.

>

> Consequently, after analysing all input received from its stakeholders,

> the GovCom hereby presents to the Community a draft table (

> https://afrinic.net/ast/afrinic-bylaw-table-changes-20200812-en1.pdf) containing

> its proposed amendments to the existing Bylaws with the rationale added

> thereto.

>

> The GovCom therefore invites the Community to take cognisance of the

> aforesaid proposed amendments as well as to submit to the Secretariat (

> govcom at afrinic.net) any further comment(s) before the final document is

> produced. However, please note that the present publication is not an

> invitation for new proposed amendments. This is an opportunity for the

> Community to comment on the amendments being proposed.

>

> The GovCom wishes to thank the Community once again for its valuable

> contribution in its review of the Bylaws and looks forward to

> continuous beneficial engagement.

>

> Regards,

> Abdalla Omari

> Chair, Governance Committee

>

> ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

>

> Chers membres et communauté,

>

> Le GovCom a été chargé, entre autres, de revoir les dispositions

> existantes des statuts de l'AFRINIC et de proposer des modifications, le

> cas échéant.

>

> Dans ce contexte, le comité avait précédemment demandé à diverses parties

> prenantes, dont la Communauté, de formuler des commentaires et des

> propositions de modification.

>

> En conséquence, après avoir analysé toutes les contributions reçues de ses

> parties prenantes, le comité présente à la Communauté un tableau (

> https://afrinic.net/ast/afrinic-bylaw-table-changes-20200812-en1.pdf)

> contenant ses propositions de modifications des règlements existants,

> accompagnées de leurs justifications.

>

> Le Comité invite donc la Communauté à prendre connaissance des

> propositions de modification susmentionnées et à soumettre au Secrétariat (

> govcom at afrinic.net) tout commentaire supplémentaire avant la production

> du document final. Toutefois, veuillez noter que la présente publication ne

> constitue pas une invitation à présenter de nouvelles propositions de

> modifications. Il s'agit d'une occasion pour la Communauté de formuler des

> commentaires sur les amendements proposés.

>

> Le Comité souhaite remercier une fois de plus la Communauté pour sa

> précieuse contribution à la révision des statuts et se réjouit de

> bénéficier de son engagement continu.

>

> Très cordialement,

> Abdalla Omari

> Président, Comité de gouvernance

>

> ………………………..

>

> أعزاءنا الأعضاء والمجتمع ،

>

> تم تكليف GovCom ، من بين أمور أخرى ، بمراجعة الأحكام الحالية

> للوائح AFRINIC واقتراح مثل هذه التعديلات ، عند الضرورة.

>

> في هذا السياق ، دعت GovCom سابقًا إلى تقديم تعليقات ومقترحات لإجراء

> تعديلات من مختلف أصحاب المصلحة ، بما في ذلك المجتمع.

>

> وبالتالي ، بعد تحليل جميع المدخلات الواردة من أصحاب المصلحة ،

> تقدم GovCom بموجب هذا إلى المجتمع مسودة جدول (

> https://afrinic.net/ast/afrinic-bylaw-table-changes-20200812-en1.pdf) يحتوي

> على تعديلاتها المقترحة إلى اللوائح الحالية مع المسوغات المضافة إليها.

>

> لذلك ، تدعو GovCom المجتمع إلى أخذ العلم بالتعديلات المقترحة المذكورة

> أعلاه وكذلك تقديم أي تعليق (تعليقات) أخرى إلى الأمانة (govcom at afrinic.net) قبل

> إصدار الوثيقة النهائية. ومع ذلك ، يرجى ملاحظة أن المنشور الحالي ليس دعوة

> لإجراء تعديلات مقترحة جديدة. هذه فرصة للمجتمع للتعليق على التعديلات

> المقترحة.

>

> تود GovCom أن تشكر المجتمع مرة أخرى على مساهمتها القيمة في مراجعتها للوائح

> الداخلية وتتطلع إلى المشاركة المفيدة المستمرة.

>

> مع تحياتي،

> عبدالله العمري

> رئيس لجنة الحوكمة

>

> ………………………………………………….

>

>

> Caros Membros e Comunidade,

>

> O GovCom foi mandatado para, inter alia, rever as disposições existentes

> dos Estatutos da AFRINIC e propor tais alterações, quando necessário.

>

> Neste contexto, o GovCom tinha anteriormente solicitado comentários, bem

> como propostas de emendas de várias partes interessadas, incluindo a

> Comunidade.

>

> Consequentemente, após análise de todas as contribuições recebidas das

> suas partes interessadas, o GovCom apresenta à Comunidade um projecto de

> quadro (disponível aqui) contendo as suas propostas de emendas

> aos Estatutos existentes, com a respectiva fundamentação.

>

> O GovCom convida, por conseguinte, a Comunidade a tomar conhecimento das

> referidas propostas de alteração, bem como a apresentar ao Secretariado

> quaisquer outros comentários antes da elaboração do documento final.

> No entanto, é de notar que a presente publicação não é um convite para

> novas propostas de emenda. Esta é uma oportunidade para a Comunidade

> comentar as emendas que estão a ser propostas.

>

> O GovCom deseja agradecer mais uma vez à Comunidade a sua valiosa

> contribuição na revisão dos Estatutos e aguarda com expectativa um

> compromisso benéfico contínuo.

>

> Cumprimentos,

> Abdalla Omari

> Presidente, Comissão de Governação

>

> …………………….

> _______________________________________________

> Community-Discuss mailing list

> Community-Discuss at afrinic.net

> https://lists.afrinic.net/mailman/listinfo/community-discuss

>

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