[Community-Discuss] Governance Committee Communique

[Owen DeLong]

> On Apr 28, 2022, at 00:07 , AFRINIC Communication <comms at afrinic.net> wrote:
> 
> Dear Community,
> 
> On April 23rd and 24th 2022, the GovCom had a 2-day face-to-face working session for the purposes of the assignment in reference to the Board's resolution 202202.677, whereby, the GovCom met as a result of a board's request where it had been mandated to undertake a Bylaws' amendment exercise and recommend workable solutions by the end of April 2022 in order to address the situation caused by casual vacancies at the level of the Board.
> 
> In the spirit of transparency and good governance mechanisms, GovCom feels compelled to share with the AFRINIC Members and Community at large, the observations and recommendations GovCom made to the Board of AFRINIC after the legal team was solicited on specific issues only and on as a "when and required" basis discussions on the matters at hand.
> 
> For the sake of clarity and ease of reference, the relevant sections of the 2007, 2016, and 2020 AFRINIC By-Laws are repeated below:
> 
> By-laws 2007:
> 11.4 For the avoidance of doubt, the sequential election of Elected Directors prevailing at the date of adoption of this Constitution shall be continued so that, on the expiry of the respective terms of office of Elected Directors, the Directors shall be elected in the following sequence:
> (i) Election for Directors representing Northern Africa and Western Africa;
> (ii) Election for Directors representing the Indian Ocean and Central Africa; and
> (iii) Election for Directors representing Southern Africa and Eastern Africa.
> 
> 11.5 The Primary Directors and the Alternate Directors shall be elected by Members on the date of each Annual General Meeting every three years. For the avoidance of doubt, the election of Directors shall not be considered as being part of the annual General Meeting but the proceedings of such election shall, subject to Article 10.15 above, be the same as for a General Meeting.
> 
> 11.7 In the case where there is no eligible candidate for a particular region, the Director already in office in the particular seat shall be deemed to have been elected for one further term.
> 
> 11.12 The Directors shall have power at any time and from time to time to appoint any person to be a Director to fill a casual vacancy in the Board. Any Director so appointed shall hold office only until the next following Annual General Meeting at which Directors are elected and shall then be eligible for re-election.
> 
> 
> By-Laws 2016:
> 13.5 Each of the following six sub-regions of Africa shall be represented by one Director as indicated below:
> (i) Northern Africa (seat 1);
> (ii) Western Africa (seat 2);
> (iii) Indian Ocean (seat 3);
> (iv) Central Africa (seat 4);
> (v) Southern Africa (seat 5); and
> (vi) Eastern Africa (seat 6).
> 
> Each Director elected under Articles 13.4(i) and 13.4(ii) of this Constitution shall hold office for a term of three years, which term of office shall expire on the date of the Annual General Members' Meeting held on or around the third anniversary of the date of appointment of such Elected Director. Subject to Article 13.6, such Director shall be eligible for re-election on the expiry of his term of office.
> 
> 13.6 For the avoidance of doubt, the sequential election of Directors elected under Article 13.4 (i) of this Constitution, prevailing at the date of adoption of this Constitution shall be continued so that, on the expiry of the respective terms of office of Directors, they shall be elected in the following sequence:
> (i) Election for Directors representing Northern Africa and Western Africa;
> (ii) Election for Directors representing the Indian Ocean and Central Africa; and
> (iii) Election for Directors representing Southern Africa and Eastern Africa.
> 
> 13.14 The Directors shall have power at any time and from time to time to appoint any person to be a Director to fill a casual vacancy in the Board. Any Director so appointed shall hold office only until the next following Annual General Members' Meeting at which Directors are elected and shall then be eligible for re-election.
> 
> By-Laws 2020:
> 13.6) For the avoidance of doubt, the sequential election of Directors elected under Article 13.4(i) of this Constitution, prevailing at the date of adoption of this Constitution shall be continued so that, on the expiry of the respective terms of office of Directors, they shall be elected in the following sequence:
>    The election for Directors representing Northern Africa and Western Africa;
>    The election for Directors representing the Indian Ocean and Central Africa; and
>    The election for Directors representing Southern Africa and Eastern Africa.
> 
> 13.7) Election mechanism
> Except for the Chief Executive Officer, and subject to Articles 13.10 and 13.11, all other Directors shall be elected by Resource and Registered Members on the date of each Annual General Members’ Meeting.
> Six directors representing each of the regions listed in Article 13.5 shall be elected according to Article 13.6.
> Two Region-Independent Directors representing seats 7 (seven) and 8 (eight) shall be elected during the same elections as for Northern and Western (seats 2 and 1) and the Indian Ocean and Central (seats 3 and 4) and shall hold office according to the terms of Article 13.10 of the Constitution.
> The NomCom shall, in terms of the existing election process, take all the relevant actions for the participation of these nominees in the election of directors.
> 
> 13.14) Notwithstanding the other provisions but subject to the provisions of article 13.10 of the bylaws, the Board shall, where it considers that it may not be reasonable to wait for the next Annual General Members’ Meeting to fill a casual vacancy that has arisen pursuant to article 14.1(ii), (iii) or (iv) below, have power at any time and from time to time to appoint any person to be a Director to fill a casual vacancy in the Board. Any Director so appointed shall hold office only until the next following Annual General Members’ Meeting at which Directors are elected and shall then be eligible for re-election. [Amended at the 2020 AGMM]
> 
> The Situation at Hand
> There is a potential situation in which more than 3 Seats would have come up for election in the coming Annual General Members Meeting of 2022 (AGMM 2022) and perpetually breaking the election sequence in Seats for the regions as specified in the Articles 13.6 and 13.7.

This is absurd… It only “perpetually breaks” if you elect them all for 3 year terms. The standard and customary practice in such a situation throughout the world is to elect such members to the remaining time in the customary term of that seat. Thus, if the seat would normally have been up for election in 2022, the person would receive a 3 year term. If 2023, a 1 year term, if 2024, a 2 year term. This is not rocket science, it’s relatively basic arithmetic.

> 
> Whereas the Board acted in its respective capacity, to ensure that the Seat for Director to East Africa Region (Seat 6) was filled in September 2020. However, instead of filling the seat via a casual vacancy, it conducted elections for that seat prematurely, causing a situation in which the Director would have completed the full tenure prior to the election sequence as per Articles 13.6 and 13.7 of the Bylaws.

In reality, what happened is that the board failed to follow the limited term for which the seat should have been elected, thus creating a situation where the board now still seems incapable of processing the idea that the seat should be elected for a shortened term to put things back on track.

> The GovCom deemed it fit that a By-Law amendment exercise may not be a solution to the current challenges based on the observations below

No bylaw amendment is required, but perhaps a remedial math lesson for the board would help.

> 1. GovCom requested and reviewed all the past 3 By-laws and especially regarding the sections on the Filling of Casual Vacancy and the ensuing conduct of elections to the Board of AFRINIC as a result of it. GovCom is of the view that the explicit provision in the By-Laws regarding the filling of a Casual Vacancy cannot be used in the conducting of elections, nor can the explicit provisions in the By-Laws regarding the conducting of elections be used in filling a Casual Vacancy on the Board.  And that when interpreting the By-Laws it must be in full taking into account all the relevant provisions and not simply a part of it.

Yes, please.

> 2. GovCom is of the view that in all 3 By-Laws, provisions were made to ensure the Board at any time and from time to time fills in a causal vacancy should the need arise, and yet none of the 3 By-Laws provided alternative election mechanisms for the ensuing conduct of elections after a casual vacancy has been filled. And as such GovCom is of the view that the only elections mechanisms that be used to conduct elections either post causal vacancy and/or at any other time are those specified in Article 13.6 and Article 13.7 of the 2020 By-Laws.

An alternative is not required. What is required is to administer the election within the confines of the bylaws which clearly results in the following:

If a casual vacancy exists, the board may appoint until the next AGMM/regular election.
At the next regular election, the membership should elect someone to fill out the remaining term for the seat in question.
At the end of that term, things return to normal.

Again, works entirely within the existing bylaws, meets all the requirements, and is the ordinary and customary practice throughout the world when faced with these issues in a staggered-term governance body.

> 3. GovCom found it totally unnecessary and irrelevant to go through a By-Law amendment exercise of Article 13.14 just to arrive at using the same election mechanisms in Articles 13.6 and 13.7 for the conduct of elections when no other alternative election mechanisms were ever in place.

OK, so?

> 4. The By-laws do not empower the Nomination Committee, Election Committee, and also the AFRINIC Board to vary the mandated 3-Year tenure of an elected Director or vary the sequence in which Directors of the 6 Regions and 2 Non-Regions are elected.

Correct… However, electing someone to a remaining term isn’t the same as varying the term. Nothing in the bylaws says that someone elected to fill a vacancy must be given a full 3-year term.

> Challenges and Risks
> The GovCom articulated that the following challenges are currently being experienced in the organization with reference to the election process and the filling of casual vacancies. These challenges may at a later stage impact the governance of the organization. These are:-
> 1.     Misinterpretation of Article 13.14 in relation to when the next AGMM of the respective seats are to be filled

Can you elaborate on this? What misinterpretation? What is the GovCom’s idea of the correct interpretation?

> 2.     Organization Instability when the Board can’t raise quorum due to when many seats are open for elections

Seats that are up for election do NOT present a challenge to quorum as they remain filled until the newly elected board member is seated.
Seats that are OPEN prior to the election are, in fact, casual vacancies. True, if enough seats are open due to casual vacancy, the board may have quorum issues, as occurred once in the past when the board had run so far amok that “None of the Above” won landslide victories in every open seat. The board’s response was to unilaterally change the rules of election to eliminate “None of the Above” from the ballot and limit the ability of the membership to point out their dissatisfaction with the limited slate presented by the Nom Com after the board put their thumbs on the scale regarding the list.

> 3.     Giving an elected Director a tenure less than the 3-years mandated by the By-Laws

A director being elected to fill out the remaining term of a vacated seat should go into the election knowing that the term is less than 3 years and this should not be an issue. That is the only logical way to comply with the entirety of the bylaws (especially 13.6 and 13.7) in such an instance. Further, it is the regular, common, and customary expected approach in virtually every governing body with such a staggered-term structure throughout the world. To the best of my knowledge, it works this way in EVERY RIR. It works this way in the US senate. It works this way in most corporate boards.

> 4.     Breaking of sequence in Articles 13.6 and 13.7

This is the direct result of the failure to recognize the need for elections to fill out the remaining term of a seat instead of a full 3 year term when filling a vacated seat.

It might be worth while to amend the bylaws to specifically call out this need, given the apparent extreme confusion around this issue, but I agree that it shouldn’t be necessary to do so.

> Recommendations to the AFRINIC Board
> Whereas the GovCom is conversant of all the above challenges that reference Article 13.14.
> 
> GovCom made the following recommendations to the AFRINIC Board that:
> 1.     A maximum of only three (3) seats should be opened for election at any respective AGMM as per the following:
> 
> 1.     Presently, elections for Board Seats #1, #2 and #7 will be held in the year 2022;
> 
> 2.     For the purposes of elections of Board Seats #3, #4 and #8, same to be held in the year 2023;
> 
> 3.     For the purposes of elections of Board Seats #5 and #6, the same is to be held in the year 2024;
> 
> 2.     In an event that a casual vacancy must be filled, the Board should fill the said vacancy till the end of the previous candidate’s mandate, i.e. when the next AGMM of the respective seat comes up for election per Article 13.6 and Article 13.7 of the 2020 By-Laws.


This is a violation of the bylaws as written and is yet another absurd power grab by the board.


> 3.     Board Seat #4 is vacant and should be filled with casual vacancy up to AGMM 2023

This is a violation of the bylaws as written and is yet another absurd power grab by the board.

> 4.     Board Seat #5 be extended to AGMM 2024 to ensure the stability of the sequence as per Articles 13.6 and 13.7 of the 2020 By-Laws.

This is a violation of the bylaws as written and is yet another absurd power grab by the board.

> 5.     Furthermore in regard to Seat #6 - the Board should find an appropriate mechanism to ensure that the Seat does not become vacant after the AGMM in 2023.

This isn’t a violation of the bylaws yet, but it is almost certainly a recipe for same. What is the board expected to do in order to achieve this? Hold a gun to the members head and tell him that he cannot resign? There are a multitude of reasons the seat might become vacant well beyond the control of the member in question or the board. This cannot reasonably be expected and almost any “mechanism” the board could find that might achieve same would also be a violation of the bylaws.

> 6.     Amendment of the process of filling the casual vacancy by including the community involvement in form of comments then the Board will make an informed decision from the comments.

Here’s a community comment:

	THIS IS A WELL KNOWN AND WIDELY SOLVED PROBLEM. NO UNIQUE SOLUTION IS REQUIRED HERE.
	The GovCom’s suggestion is yet another way to take power away from the membership and put it in the hands of a board which has
	a track record for abusing such powers even when not actually granted to the board.

	The board should fill casual vacancies to the next AGMM as per the bylaws.

	At the next AGMM, members should elect candidates to the remaining term (if any) in seats appointed due to casual vacancy.

	Additionally, members should elect candidates to the seats with expiring terms that year.

This is very simple. It does not require legal, moral, or mathematical gymnastics. It conforms to the bylaws, though the “remaining term” provision is admittedly not explicit in the bylaws.

> General recommendations from Committees
> GovCom notes that most of the recommendations are to be effected in the coming year or two years.  Since the GovCom receives requests from the Board, the CEO, and the community, it is difficult to track the status of the implementation of these recommendations and the Board’s resolutions;
> · Therefore, the GovCom recommends that a Board resolution tracking system be implemented

I fully support this recommendation.

> GovCom's report should not be confused with a minutes of the GovCom meeting which is required to be published as required.

Required to be published as required? I further recommend that GovCom hire an editor (or at least a proofreader).

> GovCom considers the recommendations made to the AFRINIC Board as final and yet would welcome comments from the AFRINIC Members and Community at large.

This statement makes little sense. “We welcome comments, but we express our intent not to consider them?” What is the point of making such a statement?

Owen

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