[Community-Discuss] Comments from GovCom Communique
Andrew.Alston at liquidtelecom.com
Tue May 17 07:43:47 UTC 2022
Except - this govcom - hasn’t read the law.
If indeed you are claiming that the election to a 2-year term was invalid per the bylaws - then in effect, you are claiming that the election of said director was invalid in entirety.
So let’s go with that for a second, if that’s the case acts of said director would remain valid but the election should be nullified.
Then you claim that the election of that seat would be impossible under the bylaws - well guess what - you don’t get to make up your own law as to how to deal with things the company’s act explicitly deals with.
136. Court may appoint directors
(1) Where -
(a) there are no directors of a company, or the number of directors is less than the quorum required for a meeting of the Board; and
(b) it is not possible or practicable to appoint directors in accordance with the company’s constitution or under section 140(3),
a shareholder or creditor of the company may apply to the Court to appoint one or more persons as directors of the company, and the Court may make an appointment if it considers that it is in the interests of the company to do so.
(2) An appointment shall be made on such terms and conditions as the Court thinks fit.
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From: DANIEL NANGHAKA <dndannang at gmail.com>
Sent: Monday, May 16, 2022 10:42:36 PM
To: General Discussions of AFRINIC <community-discuss at afrinic.net>
Subject: Re: [Community-Discuss] Comments from GovCom Communique
I want to thank the community for the comments and suggestions made after the Governance Committee published its communique on the recommendations made to the AfriNIC Board. GovCom plans to take all the suggestions and comments into the next meeting and deliberate on them further. We take note of the comments/recommendations made especially by Mr. Folayan and Mr. DeLong.
I would however like to remind the community about the provisions within the current By-Laws that lead to the recommendations GovCom made to the Board. There only provisions within the current By-Laws that would enable a person to be a member of the AfriNIC Board.
Filling of a Casual Vacancy in pursuit of Article 13.14 of the By-Laws
Conduct of Elections with a full tenure of three (3) years in pursuit of Article 13.5, Article 13.6, and Article 13.7 of the By-Laws
Either the Board, NomCom, ECom, GovCom, or even Members at an AGMM have the power to vary the sequence seats for Directors are elected or the mandated 3-year tenure of an elected Director
The proposals suggested by Mr. Folayan and Mr. DeLong where the Board conducts elections out of sequence for certain seats and for the remainder of the unexpired term of the seat is likened to a bi-election mechanism. Unfortunately, there are no such provisions for bi-elections within the current By-Laws 2020. And as such, it would be a clear breach of the provisions in the current By-Laws.
In regards to the Eastern Africa seat, the Board restored the tenure of the elected Director to the mandated 3-year term. They were no extensions of the tenure as the Board did not have the mandate to reduce the tenure to 2-years in the first place.
I hope this puts to rest the ongoing debate and clears the way for a successful AGMM.
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