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

[Noah]

Hi Ubah

Before I could read further, I ran into the below statement in quotes.

"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.".

I disagree categorically with the above rationale and it's not new because
we as a community have in the past had similar arguments of how AfriNIC is
somehow a book keeper from a certain member of the community which goes to
undermine AfriNICs role in the Internet ecosystem.

Noah

On Wed, 19 Aug 2020, 23:06 Anthony Ubah, <ubah.tonyiyke 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 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

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

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>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

>

> 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.

>

>

>

>

>

>

>

>

>

>

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>

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>

>

>

>

>

>

>

>

>

> 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.

> <td width="1

>

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