[Community-Discuss] Correction to my previous email

[Paul Hjul]

I am going to be replying thematically rather than ad seriatim.
Apologies for the delay I've unfortunately been remarkably busy the last
few days and keeping up to speed with other posts as they flood things
keeps pushing back wrapping up a response. Quick disclaimer IANAL and
styles in Gmail seems more borked than I'd like and I am not going to align
font sizes etc ...

I'll be blunt. That is utter rubbish. AFRINIC did the Right Thing by

> reclaiming blocks of IP addresses which had been -provably- stolen from

> its free pool. Two of those thieving companies sued, apparently based

> on nothing other than bogus disinformation that they themselves had

> manufactured out of their... well... out of thin air. Nothing AFRINIC

> did in either of those two cases consitutes "crafting an environment

> favouring a litigious approach". That is an utterly false, disingenuous,

> and slanderous claim with no basis in fact and I encourage yoy to retract

> it.



I think you are missing the boat and conflating issues - put differently
you are falling for the distraction afoot.
My personal wish and desire would be to see Ernest hung, drawn and
quartered and a similar fate to his closest collaborators and confederates
in the form of (to borrow from Not the 9 o'clock News [
https://youtu.be/zhstRrZzaso]) cutting off their goolies. I thought I had
expressed my disdain for the tolerance of his criminality and culture of
impunity that has dogged Afrinic before, but let me be emphatically clear
the anger I feel towards the individuals who have done so much damage to
the Internet on this continent from positions of organizational authority
is visceral.
We are however a rule of law and human rights community and so 25 years
imprisonment is probably what should be advanced as the desired outcome for
various criminals. What is galling is the extent to which collaborators and
confederates of the daylight robbery continue to infest Afrinic discussions
with impunity - some of the worst offenders of course "stay in the shadows"
and let several useful idiots wrangle about on their behalf. We must also
not tolerate "collateral damage" in a quest to hold criminals accountable.
More heinous crime doesn't warrant undermining third parties. A point which
I will get back to.

That criminal activities have taken place create an opportunity for
disputes and legal wrangling. Accepting that thieving companies are trying
to make litigation to stall accountability from whole cloth does not
translate into saying that due process for both criminals and third parties
must be abandoned. Frivolous litigation risk always exists but it is
manageable and as long as the organization itself stays on the straight and
narrow. It is the refusal to do this and to end up with the CEO having to
make an undertaking to the court which isn't acted on for several hours
that really winds me up.

What crafts an environment favouring a litigious approach is the following:

   - Afrinic's legal advisors telling members that if they are unhappy to
   sue (there was a wonderfully colourful description of this some time back
   in one the mailing lists by I believe Andrew Alston but I am battling to
   locate same at present). In my own dealings with Afrinic it is quite clear
   that while the CEO is certainly appreciative of the importance of
   reasonableness in engagement some of the staff fully subscribe to an ethos
   of kragdadigheid. There is a culture of secrecy and fear and I am quite
   sure that it is frankly a horrible place to work.
   - Neglecting to include dispute resolution clauses in the RSA. This
   really cannot be overstated. If you aren't altogether satisfied with the
   legal system in Mauritius then ensure that your commercial arrangements are
   built to resolve disputes outside of resorting to the country's legal
   system. There seems to be a nonsensical desire by some to relocate Afrinic
   from Mauritius into another African jurisdiction other than South Africa.
   Well Namibia would be a credible jurisdiction but undoubtedly what is
   really desired is to play location hopscotch until a given jurisdiction
   allows the organization to behave as a law unto itself. I cannot imagine
   that any legal representatives in proceedings directed against the
   organization will miss the opportunity to point out to the courts that the
   organization has passed measures to enable it to pack up and go. This is
   pretty useful ammunition in convincing a court to restrain in country
   assets.
   - Acting in a manner in which a reasonable court could conclude that the
   organization did not afford natural justice.
   - Invoking a termination to a contract when this act could represent a
   breach (be cautious around repudiation) - a particularly relevant point in
   the Cloud Innovation fiasco.

So your assertion


> So you are in favor of unilateral disarmament on the part of AFRINIC?

> You want them to go cap in hand to all three of the parties that are

> current suing them and beg for a negotiated settlement in each case?

> Maybe we should make you the next U.S. ambassador to Afghanistan.



is ludicrous.

Where have I proposed "disarming" Afrinic? I've proposed that the
organization equip itself properly to deal with its issues and that it not
do dumb things that will invite adverse legal action. To use your analogy I
am arguing that Afrinic moves away from the munitions depot which is on
fire and that it be very careful in its care of its munitions. Of course I
would advise somebody with a propensity to shoot themselves in the foot to
rather be disarmed than to have a deadly weapon.
What I've been saying is don't pick a fight which you will loose and that
if you are going shoot at a tiger don't miss. Afrinic fired off a shot at
CI in terminating their membership, I don't see why anybody wants to blame
the tiger for charging at the less than able rifleman.

It has been true ever since Hadrian that strength is needed to secure
peace, but waging an unwinnable war without tactical advantage is certainly
not a path to peace. I fear the next US ambassador to Afghanistan will have
a remarkably hard time rebuilding trust in the strength of the United
States which is so necessary to preserve and promote peace - of course the
fact that US diplomats to all but totalitarian states have to deal with the
great weakening under cadet bonespurs is another discussion which is only
relevant in so far as the fact that having the means by which to wage
figurative war with adversaries like the ability to wage actual war with
adversaries isn't helped when your strength is matched by your folly.
Having a weapon that you don't know how to use makes the weapon potentially
useless, having a weapon that you can hurt yourself with is generally a bad
thing. Repudiation of a contract (and repudiatory breach) is a very
powerful weapon.

Now there are times when either as a matter of principle or pragmatism you
invite or embark on litigation or the like but this doesn't mean being
monumentally stupid in the process. The best thing to do when you are
inviting litigation is to be ready to navigate the process to align with
your needs and objectives. Unfortunately it seems that at present much of
the community is very happy having protracted, unending and stalled
litigation around the heist because it forms an excuse to do nothing but
this section of the community most certainly doesn't represent the
legitimate interests of members as a whole.

But you know what? Military powers seek a negotiated settlement whenever
practicable. The United States negotiated with the Taliban for almost a
month before going to war in October 2001. The argument that a party who is
responsible with move towards a negotiated, mediated or arbitrated
resolution rather risk getting its ass kicked is hardly the same thing as
arguing for disarmament. As a non-US national or citizen I am hardly
qualified to be the next US ambassador to Afghanistan but whoever that
person is is unlikely to be trying to drag the US into military or legal
action and will be required to undertake efforts to negotiate principled
outcomes rather than do anything monumentally stupid.

So in respect of:


> I might as well speculate that there are just oodles and oodles of people

> and companies lining up, as we speak, to sue -you-. (How do we know

> there aren't? Can you prove that there aren't any such?)



I've been in the position of responsibility for organizations for which
adverse parties would line up, personally I don't think many people will
ever line up to sue me but I've been threatened a few times. So its not
wholly untraversed territory.
You know what I did when one company sent off its nasty lawyers letter, I
reminded them of the arbitration clause in the agreement and piloted an
agreement to terminate the relationship without harm in a clean break. When
one foreign firm issued summons against the company that could be ruinous
for the company through lengthy litigation I demanded security for costs
which was furnished in a perfectly amicable exchange with their legal
representatives only to march down the path of abandonment during the
exchange of pleadings leaving them considerably out of pocket.
In respect of another organization I ensured that litigation which that
organization undertook to deal with a recalcitrant municipality was of a
narrow scope and was quickly "winnable" (achieving a defined, beneficial
outcome from court).

An organization the size of Afrinic and with inherent risk of a litigious
counter party in their contractual arrangements knows the thickness of the
skull they are dealing with and a failure to institutionally be able to
navigate those waters is a profound failure of corporate governance. (It
may be argued that the profound failure of corporate governance is from a
while back and the present board is merely experiencing the fruits of same,
I certainly advance sympathy for the CEO)

Of course in my personal capacity I've written to the attorneys for a bully
who had threatened an individual who had investigated and revealed
malfeasance of their client with a defamation action. This correspondence
was to make it very clear that even if the original reporter could be
silenced I would not and that they were welcome to bring about litigation.
Within a day or so their client was in damage control. Instead of
litigation I get newsletters and Christmas e-cards from the firm.
 I've told Vika Mpisane in no uncertain terms that if he is welcome to try
and sue me and if his attorneys reach out I'll accept service by email, but
that particular corrupt broker of ineptitude will just find litigation
deleterious to his interests - discovery can be a bitch. These are
conscious personal decisions based on the amount of risk I am personally
prepared to assume (and are grounded in knowing I have the facts and the
applicable law on my side). I would not do this such as to bind an
organization though, because I am then dealing with other people's rights.
And that's the point. Afrinic must respect the rights and stability of its
members. Member;s rights (including their commercial interest) are
paramount over some ideological grandstanding bullshit. The mission of
developing digital commerce and connectivity in Africa is not served by
such a course. There is at least one vocal performer on these mailing lists
who I am quite close to giving the same declaration as I've given Vika but
I haven't figured out to what extent said individual is an actual problem
or just a total moron (of course it will be interesting to see who is so
vain as to think this sentence is about them).

Let us assume that a natural person has a sufficiently strong basis to
believe that CI or whatever cabal they believe exists are destroying the
prospects of global connectivity for millions of Africans then let them in
their personal capacity state as much as deal with the legal risks created,
but an organization accountable to its members cannot adopt such a stand if
those risks are against its members interests. For this reason the failure
of Afrinic to mitigate against defamation of CI and persons affiliated with
same should similarly be viewed as a problem.
Personally I have no reason to believe that CI is guilty of anything, least
of all undermining the prospects of connectivity to billions of people
residing in Africa. Whatever else I may suspect or fear about carpetbagging
happening, nothing comes close to the sort of criminality you want people
to infer can be attributed to CI - the bank robbery analogy for example.
All that I've witnessed is that so long as there exists a comfortable
scapegoat outside of Africa to blame for Afrinic's problems then that will
be used as a distraction.

All of which leads to the big problem with how you are being led to frame
the discussion. The question is not whether Afrinic is obligated to take
every reasonable step to hold accountable those who robbed and pillaged the
organization but rather whether the organization is actually doing so. From
where I am sitting all that I am seeing is a smoke screen that hurts the
ability to ensure accountability and my suspicion is that this is
deliberate and intentional. Considering remarks some years back directed at
white South Africans (
https://www.theregister.com/2016/06/03/racism_row_hits_african_internet_registry/,
https://afnog.org/pipermail/afren/2016-May/000474.html) the trope of
Afrinic being hijacked by "foreigners" is worn to the ground and the sooner
people stop giving credence to the trope the sooner problems can be solved.
For what it's worth the concern of any one member being able to control the
organization is one which gravely and continuously concerns anybody who
cares about good governance in the community. Just imagine if Afrinic was
transparent before the last /8.

Paul, this is the second time that you have injected these dual epithets,

> "xenophobic" and "regionalist" into the conversation here. I personally

> feel that these terms are both distracting and beneath the otherwise

> admirable level of your discourse. Further, I am not even persuaded

> that the term "regionalist" even is an epithet, even though it is clear

> that you intend us to interpret it that way.



I don't believe "epithet" is quite the word you are looking for and that
you are attributing far more rhetoric into the terms than is apposite. I am
battling to fathom how either term is distracting - if anything they serve
to highlight the actual distraction afoot.

Let me first deal with "xenophobic". The term refers to an expression of
fear or hatred of foreigners. In the context of a multinational community
it naturally means persons perceived to not belong to the constituent
nationalities. Moreover though "perceived to be foreign" also includes
people who for reasons beyond national identity are positioned as
"foreign". It is undeniable that there has been frequent mention of the
fact that the principal stakeholder of CI is of Chinese ethnicity. I admit
not knowing what this individual's native nationality, current citizenship
or anything related to his politics or non-commercial affiliations. For
that matter apart from knowing that he has an involvement in various
companies in different jurisdictions I know very little about about the man
and honestly remain to date uncertain as to the ordering of his name and
surname. What I do know is that the animus shown towards his organizations
with deep ethnic undertones is despicable and deplorable. It can only be
properly described as xenophobic. Coupled with other anti-foreigner
sentiments expressed how does one conclude other than that a plague of
xenophobia damages the community. The plague of xenophobia is made all the
worse by the inherent hypocrisy of bemoaning foreign influence while
demanding foreign funding (stability fund) and connectivity (a global
Internet).

As for regionalism. Of course the very nature of "region" is that the term
is only used in a context. In some contexts a region is larger than one
sovereign state - the African region or SADC region in others it is a
sub-division of a sovereign state. Regionalism is promoting policies and
ideologies to give more control and power to regions at the expense of the
pre-existing balance. The common denominator between sub-national
regionalism and supra-national regionalism as well as trans-national
regionalism is therefore moving away from the authority and power
structures status quo. In and of itself if there is a sound reason to argue
that power or authority should be shifted from it status quo locus then
there is nothing intrinsically wrong with regionalism when it is paired
with following proper processes to effect the desired change. When however
- as has been occurring on various Afrinic mailing lists - it is paired
with an ethos of undermining or ignoring the pre-existing agreements,
arrangements and rules then it is often a rather dangerous thing.

That both of the views of sub-regionalism and supra-regionalism are
expressed by the same individuals isn't a contradiction or a paradox (the
fact that they contradict themselves on so many other things being besides
the present point) but rather a reinforcement of the fact that the
proponents are advocating straying from the rules and norms already in
place. The essence of regionalism is the rendering of political arguments
to move authority from where they are located (usually at a national level)
to some different identity based on geography basis which is either at a
larger or smaller scope. These arguments may make for great politics but
they are often a nuisance for commerce and certainty. (Of course Brexit is
a special animal in which opposition to a regional body has lead to the
same effect but again it represents a political movement riding roughshod
over norms and certainty)

What should be quite clear is that the opposite to regionalist in context
therefore is to subscribe to the view that Afrinic is a Mauritian based
member's organization established to serve a community and perform several
global functions. Afrinic derives its authority from its function and
purpose and not from some ill-defined ideological proposition.

Paul, if you're going to trumpet the beneficial effects of globalist

> capitalism, then you had best be prepared also to defend its less

> desirable effects as well. Is it right or proper or fair that a

> poor sharecropper in Kenya should go hungry or that his daughter

> should lose an eye for want of a surgeon, all because speculators in

> New York have decided amongst themselves that the global price of

> bulk coffee should be cut in half this week?



I am honestly battling to grasp the point you are trying to make. Largely
because its clear you've made a massive leap of reasoning away from
something logical and into the absurd. As somebody has already pointed out
I haven't being trumpeting some manner of globalist unbridled capitalism
and certainly not the the sort you are seeming to invoke.
What I am putting forward is that the the speculators in New York shouldn't
be allowed to repudiate their contract to purchase coffee at a given price
because they feel like it. What I would also point out is that the
sharecropper in Kenya's government doesn't get to rob him at 8am and at 9am
say that its the coffee speculators fault for declining to pay them bribes
for the right to source coffee from Kenya. Of course I am not suggesting
that the current Kenyan government is such a government - no idea why you
specifically selected Kenya. Closer to home the South African government
doesn't have the right to blame Wall Street for the considerable damage to
property and undermining of livelihoods caused by the looting in KZN and
Gauteng.

Of course the strawman you are trying to build also has the major defect of
failing to recognize that if the sharecropper was not participating in
global trade he wouldn't be able to sell the coffee at all. The appropriate
analogy here is that the sharecropper can have his farm implements taken by
a company in Mauritius because a person in Uganda doesn't like who the
sharecropper is selling his coffee crops to.


I'm damn glad that you are not the CEO of my bank. It seems that if you

> were, and if the place got robbed, you would just throw up your hands and

> say "Oh well! Boys will be boys!"



If the bank got robbed three times in a row, you would blame it on the

> bank and urge the bank president to sit down in arbitration with the

> various robbers.



If I was the CEO of a bank and the bank was robbed the twice in a row, I'd
look quite closely at what the security staff are doing. I'd ask some
fairly hard questions about assumptions that were made in how the bank
protects itself from robbery. For a bank being robbed is much like losing a
parent (to barrow from the character of Lady Bracknell from the great Mr
Wilde) - to loose one may be regarded as a misfortune, to lose both looks
like carelessness and to loose three requires the answering of some
questions. Then lets assume that I am the CEO of a bank, the bank has been
robbed and we think we know where the robbers and loot is. One thing I
would not do is go into the robbers lair guns blazing and seek to violently
take my loot. In South Africa this is because my lawyers would be yelling
at me abut *mandament van spoilie* but in almost all civilized
jurisdictions there is an aversion to violently dispossessing somebody in
peaceful possession. So yes if I can get the robbers to sit down to
arbitration more quickly than having to go through judicial proceedings to
recover my banks property that is definitely the road I'd take. I would at
all times weigh up the risk and reward balances and act in the interest of
the bank rather than my wish to lash out at the bank robbers.

But here is the real issue. If my bank was robbed I wouldn't use that as an
excuse to go and rob the rich guys in the town. Other than the fact that CI
has an abundance of address space which Afrinic allocated to it what basis
is there to allege that they are robbers? (whether in an analogy or
otherwise). We know of Afrinic being robbed, and we know it was an inside
job. We know at least one former director of Afrinic is corrupt and was
removed from an office of trust due to malfeasance and same failed to
disclose being suspended when seeking re-election to the Afrinic board. We
know that the opposition to proposals to use IPv4 resources in commercially
sensible way that would have produced the ability for the community to fund
connectivity investment came in no small part from individuals who
participated in or orchestrated the grand heist. Put differently as much as
I want the bank robbers to be evicted from their goolies I am not about to
launch a *Kristallnacht *
[considering how much text has been flooding the discussion boards the duty
to invite Godwin into things is long overdue - although I will point out I
am not equating anybody's position or argument with the Nazi's only saying
that you shouldn't ever be a Nazi even if you like Hugo Boss outfits]

Of course we aren't talking about bank robbers but rather a contractual
issue, and there even more so well before as a bank I'd do something that
could violate my contractual relationship with a client (who also happens
to be a member of the mutual which the bank is) I'd be damn sure that they
aren't able to put the bank in a sling. It is probably worth reiterating
that I actually doubt the CEO is in any way at fault. A CEO has to depend
on the advise of employees and a Board can make an idiotic decision but
that doesn't change the situation away from being a profound failure of
governance.

As for boy's being boys. I am very much opposed to the idea of letting
accountability slip on some daft basis. But I will say this when trying to
mitigate against the danger of misconduct understanding what you are
dealing with helps. I'd rather deal with a predictable rational actor than
an irrational actor.

And if the bank where my money is held were to be going after non-bank
robbers while doing little to nothing to deal with the banks security I'd
be pushing to get my money moved to another bank. And if the bank was doing
everything in its power to stop me from transferring to another bank while
the bank is trying to dip into the funds of another client to appropriate
I'd be more than mildly concerned.




> It seems however that you want AFRINIC to sit down amicably with those

> thieves and negotiate with them so that they each get to keep half of

> what they have provably stolen. Doing so would only add disgrace to

> dishonor, and I, for one, sincerly hope that AFRINIC does not do so.



On a daily basis throughout the United States this is exactly what
prosecutors do. They sit down amicably with criminals (and/or their legal
representatives) and lay out what they can prove and determine whether a
plea bargain can be secured. In many other jurisdictions something similar
happens. But even outside of a controversial plea bargaining process in
commercial discourse this is a continuous process and it is often quite
disheartening (a newspaper settling a defamation case for an amount that
the insurance covers while the plaintiff is in fact the monster that they
portrayed him because it can be proven that the paper got the story wrong
and fighting the matter will destroy livelihoods) and an organization must
make a rational decision informed by those facts as can be proved as to how
to meet the organization's mission.

In commercial disputes there is little reason to be unprofessional and
uncooperative. Civil courts work better if parties are at the very least
civil with each other. You never know which legal representatives of
counter-parties will send you Christmas cards or sit on a conference panel
with you and the like with.

As it can be proven to any threshold of proof that a staff member of
Afrinic misappropriated address space the negotiations should be pretty
damn one sided with respect to dealing with certain address space.
As far as I understand the publicly available evidence the Cohen litigation
is protracted by the simple fact that Afrinic is entangled by trying to
play both registry and asset acquirer. What I don't understand is why you
are conflating the heist and associated questions about ownership with
Cloud Innovation. The only publicly presented commonality between the two
is that they both represent controversy created by Afrinic during a spree
of stupidity by Afrinic. It appears unfortunately that you have been
bamboozled by the distraction. To establish the degree to which this is a
distraction ask the simple question "how would a rational Afrinic behave if
it had evidence linking CI to criminal conduct"?

Let's assume for the present argument that Cloud Innovation secured their
considerable resources from the then hostmaster and Board (who it is very
clear considered the application for allocation) improperly and that the
particulars of same require a party involved in the heist to spill the
beans. Well you now have to weigh up the value of getting the facts. If you
negotiate with the beneficiary of the crime you can prove the crime - who
is more valuable the person who pulled the trigger or the person who
took out the contract? Consider a situation in which you have a basis to
believe that somebody paid a bribe to a law enforcement officer, if you let
them enjoy the fruit of their wrongful activity (evading criminal liability
and being a small amount out of pocket) you can convict the law enforcement
officer. I am strongly of the view that if somebody initiated the corrupt
dealing then there is culpability on their part but if a traffic cop
initiates the engagement I'd rather the bribe payer who provides evidence
keep the benefit both as a matter of principle and practicality. On the
other hand somebody who initiated the bribe or cultivated a generally
corrupt relationship is different and I'd rather a cop who comes clean
about bribes he has received keep his liberty and pension and testify
against those who initiated the bribes. Some matters will fall in the
middle and it is the provable facts tha If somebody is caught with stolen
good after a looting spree (a problem that has recently occured in South
Africa) law enforcement could well be able to get valuable information to
break down the network and planning of criminal enterprise by letting the
grunts on the ground be marginally enriched. But the inverse is equally
true. A criminal once caught can rat out and provide the evidence to prove
the nefarious dealings of the underlings.. So if (and here its important
that its if) the hypothesis that is being pushed out by some that Cloud
Innovation wrongfully obtained the allocations as part of the great IP
heist then we have every reason to play the game of whoever cuts a deal
first gets the better deal. If this is the case then trying to terminate
their membership and acting such as would make it in their interests to be
silent are all deleterious. Its also quite important to coddle onto the
stark reality that so much of what is being done in targeting a member has
the smatterings of being a distraction, other than time frame I haven't
picked up any good reason to assume that the allocations to CI are in any
way connected to the criminal activities of the heist. The simple fact is
at this stage nobody has provided a shred of evidence of wrongdoing on
Cloud Innovations part and there are many explanations for their attitude,
behaviour and approach. It is more probable that the Afrinic Board was
dolling out large allocations to cloud providers at the time based in some
of the smaller jurisdictions and at a time the Seychelles was actively
courting digital hosting activity. An explanation of laziness and Afrinic
seeking to allure political support from some states in the region explains
the allocation. Suggestions that same stole the IP range is based only on
the fact that they have a large quantity. Equating the presence of wealth
with proof of criminality is a dangerous fallacy to be on.

The answer is clear - either the assault on CI is designed to cover up
prior malfeasance by Afrinic, or it is a distraction. Either way what it
serves to postpone dealing with issues. The result is that even if CI are
somehow nefarious they will either be the scapegoat for everything or they
will get away scott free even if they have done something untoward in some
shape and form. For exactly the same reason I am opposed to the police
pistol whipping a person they reasonably believe jaywalked and unreasonably
believe to be a violent offender as you could end up with criminal charges
on all manner of later discovered offences dismissed and you could find an
innocent person wrongfully persecuted, I find jumping the gun on
terminating a members membership to be the height of stupidity.

If an agreement between law keeper and law breaker cannot happen then the
prosecutors have to put what they can prove before an impartial body and
line up the consequences that follow. What a person can't do - and I've
laid this out earlier - is act as a judge in your own cause, to prejudice
third parties, to deny audi alteram, to take possession from a peaceful
possessor without following proper process.
In short you may not act as a law unto yourself. If you try to act as a law
unto yourself you must either have the depth of pockets to hold out by
kragdadigheid (and that ultimately seldom works either) or expect to
quickly find that litigants who otherwise would have no hope in prevailing
against you are suddenly a monumental nuisance and that your arrogance will
be your undoing (don't try Stalingrad tactics if you don't have the money).
You will find irate judges and an inflated litigation budget.

Nothing in the service agreements or by-laws allows for a deviation from
the principles of natural justice. When parties arrange their affairs to
provide for the principles of natural justice to be given effect, courts
are far less inclined (and less able) to intervene.  What Afrinic has
continuously failed to do is to uphold the principles of natural justice in
its interaction with members. It uses the excuse of litigation to drag its
feet in some matters and rushes into others knowing full well that they
will be stopped by litigation. But of course so long as people will
foolishly take to attacking the courts and the law out of some nonsensical
and frankly tribal sentiment this wont change.
I don't want Afrinic to sit down amicably with people who have wronged the
organization because of some belief that the later should get a free pass.
I want Afrinic to be pragmatic in ensuring accountability and to achieve
accountability rather than pretend to value it. Accountability also means
accountability of those within the organization and those who while working
for or holding a fiduciary responsibility to the organization in the past
violated their fiduciary responsibilities. .
What I really want is transparency, accountability and good faith from an
organization charged with developing the Internet in the continent that is
my home. I want the bullshit to come to an end. So much bullshit can be
resolved through sitting down and devising workable, well defined policies
and moving forward with those policies. To get proper well defined policies
we will need to start by jettisoning this nonsensical view that IPv4
allocations are in any way useful to connect billions of people. For one
thing there simply aren't all that many addresses. IPv4 resources are only
one reasonably insignificant tool in promoting development for the region,
the Rule of Law, an adherence to consistency and certainty to promote
investment and so on are all much better tools. The continued attempt to
equate allocation policies with utilization requirement is for example
bonkers.

One final thing, I mentioned at some point that the courts will very
quickly express opprobrium of CI if they have not been candid in their
proceedings and thus after the 4th we should know more. It is important to
note that the 4th August is (per the order placed on the mailing list) not
a hearing or the next instance at which an order from the courts may be
expected. My comment is that IF (which seems very unlikely) Cloud
Innovation has made a mistep in legal proceedings the courts of Mauritius
after the 4th August are will placed to hold them accountable (as their
further papers will have been filed). What I anticipate is that a hearing
and order that safeguards various concerns and interests will be
forthcoming at some point in the future but that the sooner Afrinic is seen
to be respectful of the courts of Mauritius the better for Afrinic. What
may occur is that the Mauritius Supreme Court will actually require
pre-trial conferences and even cause the matter to be handled by a judge
for mediation (the Courts Act makes provision for the Chief Justice to do
so and there is a mediation rule). My hunch is that mediation - as opposed
to arbitration - is actually not in Afrinic's interests on this matter but
this is a hunch. If Cloud Innovation move an application to have the matter
put in the mediation court I'll be more confident in my hunch.
It is worth noting that Cloud Innovation have actually posted the
particulars of court proceedings as permitted online:
https://cloudinnovation.org//press-release.html
Two things stand quite clearly: Afrinic was restrained by the Court from
acting adversely against CI on the 13th July but persisted in doing so
until the 15th July when the unfortunately position CEO of Afrinic was
pushed to explain that the organization would comply with the order of the
13th. Secondly CI has given an undertaking (and repeatedly have done so)
both to abide by the decisions of the Mauritius courts (which is a foreign
jurisdiction to a Seychelles entity) and to pay damages arising from it
assuming "at its own risks and perils" in its proceedings.

Evidently Cloud Innovation and their legal representatives have such strong
confidence in their case that they are able to undertake to the court to
pay damages to Afrinic (the Respondent). Evidently CI and their
stakeholders are committed to a rule based international system and are
prepared to rely on the law to promote their commercial interests. Those
voices which advocate that Afrinic not be equally committed to the rule
based international system of law need to be repudiated by the organization
and its membership in clear and unambiguous terms. It is this repudiation
which I make in no uncertain terms in my personal capacity. If anybody
wants to take issue with this they are welcome to get their South African
based legal representatives to send me an email with whatever daft demands
they may choose to make and I'll gladly accept process by electronic mail
and defend against such demands. Of course if they aren't based in South
Africa they can expect to be put to task to furnish security for costs but
they'll have to get in line with Vika and a bunch of crooks and bullies
I've given the same invitation to. And of course if Afrinic secures an
independent set of eyes on the facts and same concludes that the Board
jumped the gun and that they have a dreadful case then the sooner that they
can apologize and put this matter to bed and then get down to resolving the
policy problems within the organization. At this juncture the cost of
getting an opinion from additional counsel on the prospects is considerably
less than what having to pay for a silk down the line will cost. I
certainly don't think it would be responsible for any other RIR to make
stability funds available to Afrinic without such an opinion being procured
and same being favourable. To be quite honest I am surprised at the service
provider associations who have not qualified their public statements in a
similar way as ISPA-ZA have prior to obtaining same. I hope you will join
me in repudiating such voices and whatever your suspicions or animosity
towards CI and so on you'll recognize that Afrinic needs to follow the laws
it is bound to and not pretend to be a law unto itself nor to align itself
with those voices that advocate it to do so.

Paul
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