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

[Owen DeLong]

This is a pretty lousy format for soliciting comments because there’s no good way to put them inline.

6.1 Corporate should at the vary least be changed to “corporation” as corporate is an adjective describing something which relates to a corporation (e.g. corporate membership) while corporation is the noun (e.g. corporate memberships are only available to corporations).

Personally i disagree with this. There are many companies which are not corporations. I suggest instead using the term.

Further I think that the proposed wording creates several potential chicken and egg issues. How does one comply with the policies before becoming a member and getting resources?

I would suggest instead that the following is a superior alternative:
(i) Membership shall be open to any person or organization which has a nexus in the AFRINIC service region and is a user of Internet Number Resources.

If additional limitation is desired, one could add the clause “ directly issued to the person or organization by AFRINIC” at the end of the sentence.

I would also suggest deleting (ii) as I believe this change would render it anachronistic.

6.4 — As worded, you create an interesting loophole (absent my suggestion for additional limitations above)…
With the proposed wording in sections 6.1 and 6.4, one could argue the case that if one has no AFRINIC resources
and merely signs the RSA and does not violate any policies, one is entitled to voting membership as a resource
member for $0 per year as without resources, that does constitute the relevant step and membership fees related
to their zero resources allocated/assigned.

While I agree that this is a bit of a reductio ad absurdum argument, courts have enforced far more
ridiculous and baseless claims in history.

8.2(ii) and 8.3(ii) — The wording here is absurd. A judgment call as to whether policy has been violated or not is required here.
A policy itself cannot make such a judgment call. A policy is entirely a passive thing incapable of action or
decision by itself. Some body of people must implement, enforce, and/or adjudicate any such policy.

If you don’t want the board involved here, then assign it to staff or to the PDWG, or to a vote of the
membership writ large or whoever you want, but you must appoint a trier of fact to make these judgments.
You cannot blindly defer to the policy itself as if policy was capable of intervening in a members status
without action by humans.

8.2(iii) and 8.3(iv) — So do we wish to simply allow a member who violates the constitution or other rules to continue
as a member in good standing? This form of abuse strikes me as far more likely to occur and much harder
to address without something taking the place of 8.2(iii). If you want to take this authority out of the hands
of the board, fine, but you must then place it elsewhere or accept the anarchy that is the inevitable result.

I have no issue with the deletion of 8.2(v) and 8.3(vi).

The proposed edit to 8.4 is unwieldy, poorly written, and IMHO, unnecessary. Please describe a reasonable or likely
scenario where a resource member would face termination of their membership that they did not cause. I cannot
see any scenario in which this is possible, let alone likely. Perhaps I lack imagination, so please if I am wrong,
enlighten me.

I absolutely object to the suggested edit to 8.5. You are literally saying that one can (1) Obtain resources, (2) deploy
those resources (3) decide to stop paying fees for those resources and then because they are deployed, (4) keep
those resources in perpetuity. That’s ridiculous and would bankrupt the organization very quickly. Why would anyone
ever pay a renewal fee under such a regulation?

I will try to review the rest of the proposal later, I’m out of time for now, but that should provide some grist for the
discussion mill in the mean time.

Owen



> On Aug 19, 2020, at 13:20 , Antone Bahu <blackboythinking at gmail.com> wrote:

> 

> 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 <mailto:anthony.ubah at gloworld.com>.ng

> 

> 

> 

> On Wed, Aug 12, 2020 at 3:04 PM AFRINIC Communication <comms at afrinic.net <mailto: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 <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 <mailto: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 <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 <mailto: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 <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 <mailto: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 <mailto:Community-Discuss at afrinic.net>

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

> <bylaw REVIEW.docx>_______________________________________________

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