[rpd] Re: Appointment of an Interim CEO for AFRINIC

Thu Jan 1 05:54:28 UTC 2015

Hi Kofi,

I am responding to this only having spoken to the chair of the board before doing so, since I was very much in to minds about if I should dignify this with a public response.  However, after thinking about it, there are issues raised below that need to be addressed.

Firstly, your argument that the legal advisor be recused because he is Mauritian and this represents a conflict of interest is in my mind, nothing short of nonsensical.  To practice law in a particular country, you generally need to be licensed in that country, and have an understanding of the laws of the nation in which you work.  It goes without saying that it will generally be Mauritians arguing Mauritian legal issues, since they are the most knowledgable on their countries own laws.  Secondly, unless the legal council stood to gain from his advice and potentially get the job himself, there is no conflict.

The legal definition of conflict of interest is as follows:  A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public, or a designated individual, exploits the relationship for personal benefit, typically pecuniary.

If you are alleging that the advice from council falls within this definition, I would challenge you publicly to demonstrate the benefit derived by council.

Now, on to another issue.  Firstly, there are many cases where the exact criteria within a company for a CEO do not necessarily apply to an acting or interim CEO.  In many cases infact, the CEO appoints an acting when he goes on leave for example and does not even require board approval to do so.  This in unique from that scenario in the fact that we are referring to an interim CEO and not an acting, but by and large they amount to the same thing, an individual in a caretaker role.  The bylaws give no criteria for such caretaker positions.

Secondly, even if you wish to believe that the criteria that stops a national of the hosting country being CEO applies to the interim position, that does not override the fact that council has advised that the clause may well be struck down in a court of law.  To clarify a little, the clause could be seen as discriminatory and would fall foul of legislation that stops discrimination.

It is my personal view (taking my other hats off for a second), the the clause is the equivalent of saying “The CEO may not be a member of the official religion of the country in which AfriNIC is hosted”, and yes, while this is a bizarre example, the principles remain the same.

To enforce that clause would potentially open AfriNIC to legal liability, and I might point out that one Mauritian individual (who is neither an employee nor has any personal stake in this) already raised the question of the legality of that clause in an informal discussion between various people.

With regards to your comments about votes of no confidence.  If the community feels that the board is not leading them in the way they feel is serving of the community, it is the right of any member of the community to bring a motion before the floor of an AAGM provided they follow the processes to do so and can then garner sufficient support from the floor to pass the motion.  In this particular case, the board has striven to be fair and equitable and act within their delegated fiduciary duties and within the bounds of the law as advised by legal council.  Should a member of the community feel that such actions, which the board felt were in the best interests of the community, are grounds for such a motion, provided the processes are followed, both within the context of the bylaws and (where the bylaws are silent or there is an overriding section in the Mauritian companies act), they are free to bring such a motion.  The board is confident that the community at large will see that it has attempted to act in good faith and in the best interests of AfriNIC and its community.

Thanks

Andrew Alston
Group Head of IP Strategy
[cid:7B581CE9-BE22-4793-B5D2-1EF79903D8AE]
Sameer business Park, Block A, Mombasa Road. Nairobi, Kenya
T: +254 205000000 -  M: +254 733 2222 04 - E: andrew.alston at liquidtelecom.com

From: Kofi ANSA AKUFO <kofi.ansa at gmail.com<mailto:kofi.ansa at gmail.com>>
Date: Wednesday, December 31, 2014 at 8:15 PM
To: Sunday Folayan <sfolayan at gmail.com<mailto:sfolayan at gmail.com>>
Cc: "disc >> AfriNIC Discuss" <members-discuss at afrinic.net<mailto:members-discuss at afrinic.net>>, AfrICANN list <africann at afrinic.net<mailto:africann at afrinic.net>>, "rpd >> AfriNIC Resource Policy" <rpd at afrinic.net<mailto:rpd at afrinic.net>>
Subject: Re: [rpd] Re: Appointment of an Interim CEO for AFRINIC

Dear Mr. Chairman and Board of Directors

Thank you for the timely response.

First of all I understand the legal counsel is a national of the country of the headquarters of AFRINIC which in itself exposes a conflict of interest regarding interpretation of the by-laws. This requires the said legal advisor to be RECUSED ( e.g. excuse oneself from a case because of a possible conflict of interest or lack of impartiality)

Secondly regardles of the adjective qualifying the CEO appointment, be it INTERIM, ACTING, SUBSTANTIVE etc there is no distinction with respect to the duties and responsibilities of functions of the CEO role.

In  other word it is inappropriate for the board of directors to resort to semantics to diferentiate titles to the same role function.

At this juncture I will advise the board of directors to reconsider their appointment following the by-laws.

This is a critical and sensitive decision which must be addressed IMMEDIATELY to prevent vote of no confidence in the AFRINIC board of directors which may lead to dissolution of the board.

Let me use this opportunity to also wish the community Happy, Prosperous, Productive and Accountable New Year - 2015 !!!!!.

cheers

Kofi Ansa Akufo

On 31 December 2014 at 20:37, Sunday Folayan <sfolayan at gmail.com<mailto:sfolayan at gmail.com>> wrote:
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Hash: SHA1

Dear Colleagues,

Further to my earlier email, Mr Patrisse Dissee is from Mauritius.

The Search Committee, before presenting the final slate of Interim CEO
candidates to the Board, did seek the advise of the AFRINIC Legal
Counsel regarding the Interim CEO eligibility around nationality,
specifically Article 17.3.

The response of the counsel is:

<BEGIN LEGAL>
Appointment of the Interim CEO
As a matter of good practice, where the Board is confronted with an
issue which sounds and/or looks confusing, the bylaws in the first
place has to be examined to look for a clarification. Where the
obscurity still prevails after this first step, the Company’s Act will
have to be perused to try and work out a solution.

It is according to me important that the board be agreed on the
meaning of an “interim appointment”.

The ordinary meaning of “interim” in the Cassell’s English Dictionary
is temporary or provisional.

It is now apposite to consider Art 17 of the bylaws generally in the
first place and as a second step Art 17.3 specifically.

What one can gather from a cursory reading of Art 17 are inter alia
the following:-

The CEO
(1) is appointed by the Board by a majority vote.
(2) May be removed by “.. an affirmative vote of two- thirds of all
other directors”
(3) Cannot be appointed from the nationals of the country hosting the
company’s seat.

The “Art 17.3” prohibition
This prohibition was the result of an amendment brought to the bylaws
following community approval.

[ I have drawn attention to the fact that this prohibition may be
struck down on grounds of unconstitutionality by the Supreme Court if
ever any Mauritian national challenges same. It does look illogical
for a Mauritian not to be able to be employed by a Mauritian Company
in whatever capacity. This may also open the door to an enquiry by the
Equal Opportunities Commission in the event that a report to that
effect is made there.]

Be that as it may, it is my considered opinion that the prohibition
does not apply to an interim appointment. Why do I say that?
(i) The position of “ interim CEO” is not found in the Company’s bylaws.
(ii) There is no express provision for the qualifications required of
an interim CEO. As such it is for the Board to prescribe such
qualifications.
(iii) The Board, without infringing the provisions of Art 17.3, may
appoint, [without creating any precedence] any one it deemed fit,
Mauritian, in house or otherwise, to fill in the interim position. The
letter of appointment for that interim recruitment must be rigorously
drawn up. Moreover it will not be out of place to make this
appointment the subject matter of a formal board resolution[ May be
this is already the case]

(iv) It is the board which felt the need to have an interim
appointment to ensure both a proper handing over and enough time to go
through the recruitment process. This context has to be borne in mind.

Is there any gender issue?
Art 17 of the by laws read together with the Section 5 of the
Interpretation and General Clauses Act of 1982 do not create a gender bar.

This section reads as follows –
(5) “ General rules of Interpretation-
        (1)-Words imputing the masculine shall include the feminine and the
neuter.

The appointment of the CEO as Director.
Do note that the Board approves the appointment of the CEO as an
employee of the company. But the CEO becomes a member of the Board in
an ex-officio capacity by reason of the said appointment.

The ambit of Art 13.14.
This article deals with the filling of vacancies at Board level where
a casual vacancy has occurred. One should not read more than this in
this article. It definitely has nothing to do with the appointment of
the CEO-interim or other wise.

I remain at your disposal for any further clarification you may require".
<END LEGAL>

The Board was guided by a deep sense of fairness and of course, its
fiduciary responsibility.

Thank you very much for your continued care and support for AFRINIC.
The Board remains at members disposal for any clarification on its
actions.

Sincerely,

Sunday Folayan
Board Chair

On 31/12/2014 07:19, Kofi Ansa Akufo wrote:
> Dear Mr. Chairman
>
> Thank you for the update and congratulations to Patrisse for
> assuming the interim CEO role.
>
> What is the nationality of Mr. Patrisse Deesse? Is he a national of
> Malawi?
>
> I would however like clarification of article 17.3 of the AFRINIC
> Bylaws which states;
>
> "The nationals of the country hosting the headquarters of AFRINIC
> shall be ineligible for appointment to the office of Chief
> Executive Officer"
>
> The current by-laws does not currently define clearly the protocols
> of appointing an interim CEO so what framework is currently used to
> appoint interim CEO?
>
> Could persons appointed to interim CEO include nationals of the
> country hosting the headquarters of AFRINIC?
>
> Thank you
>
> Kofi Ansa Akufo Technical Consultant iNET Communications Ltd.
> E-mail: kofi.ansa at inet.com.gh<mailto:kofi.ansa at inet.com.gh>
>
>
>
>
> ----- Original Message ----- From: "Sunday Folayan"
> <sfolayan at gmail.com<mailto:sfolayan at gmail.com>> To: "members-disc >> AfriNIC Discuss"
> <members-discuss at afrinic.net<mailto:members-discuss at afrinic.net>> Cc: "AfrICANN list"
> <africann at afrinic.net<mailto:africann at afrinic.net>>, "rpd" <rpd at afrinic.net<mailto:rpd at afrinic.net>> Sent: Wednesday,
> December 31, 2014 9:14:55 AM Subject: [rpd] Appointment of an
> Interim CEO for AFRINIC
>
> Dear Members and Friends,
>
> As part of the ongoing process to find a successor to our founding
>  CEO, I am pleased to announce the appointment of Mr Patrisse
> Deesse at the Interim Chief Executive Officer of AFRINIC.
>
> Patrisse joined AFRINIC in September 2007 as Finance and
> Administration Manager. He has been involved in all aspects of the
>  organisation including Finance, Human Resources and
> Administration. He worked on and implemented several projects
> relating to Billing and set up of the financial processes and
> procedures.
>
> Prior to working at AFRINIC, his previous work experience extends
> over 30 years at a large international conglomerate in Malawi (one
>  of the largest private Companies in the country) in accounting,
> occupying several senior managerial positions, including Head
> Office Accountant and Treasury Manager. He is Exposed to
> international management practices and standards in a multicultural
> environment. He is a Fellow member of an International Accounting
> body.
>
> Until his appointment, Patrisse was the Finance and Accounts
> Director of AFRINIC. In his new role, He will lead the AFRINIC
> team, pending the appointment and resumption of the substantive
> Chief Executive.
>
> The process of the recruiting the Chief Executive Officer Board
> has entered the candidates evaluation phase. The Board is pleased
> with the progress made so far.
>
> Congratulations Patrisse.
>
> Best Regards ...
>
> Sunday Folayan Chair, AFRINIC Board
> _______________________________________________ rpd mailing list
> rpd at afrinic.net<mailto:rpd at afrinic.net> https://lists.afrinic.net/mailman/listinfo.cgi/rpd
>
>
>
>
>
>
> From: "Sunday Folayan" <sfolayan at gmail.com<mailto:sfolayan at gmail.com>> To: "members-disc >>
> AfriNIC Discuss" <members-discuss at afrinic.net<mailto:members-discuss at afrinic.net>> Cc: "AfrICANN list"
>  <africann at afrinic.net<mailto:africann at afrinic.net>>, "rpd" <rpd at afrinic.net<mailto:rpd at afrinic.net>> Sent: Wednesday,
> December 31, 2014 9:14:55 AM Subject: [rpd] Appointment of an
> Interim CEO for AFRINIC
>
> -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1
>
> Dear Members and Friends,
>
> As part of the ongoing process to find a successor to our founding
>  CEO, I am pleased to announce the appointment of Mr Patrisse
> Deesse at the Interim Chief Executive Officer of AFRINIC.
>
> Patrisse joined AFRINIC in September 2007 as Finance and
> Administration Manager. He has been involved in all aspects of the
>  organisation including Finance, Human Resources and
> Administration. He worked on and implemented several projects
> relating to Billing and set up of the financial processes and
> procedures.
>
> Prior to working at AFRINIC, his previous work experience extends
> over 30 years at a large international conglomerate in Malawi (one
>  of the largest private Companies in the country) in accounting,
> occupying several senior managerial positions, including Head
> Office Accountant and Treasury Manager. He is Exposed to
> international management practices and standards in a multicultural
> environment. He is a Fellow member of an International Accounting
> body.
>
> Until his appointment, Patrisse was the Finance and Accounts
> Director of AFRINIC. In his new role, He will lead the AFRINIC
> team, pending the appointment and resumption of the substantive
> Chief Executive.
>
> The process of the recruiting the Chief Executive Officer Board has
> entered the candidates evaluation phase. The Board is pleased with
> the progress made so far.
>
> Congratulations Patrisse.
>
> Best Regards ...
>
> Sunday Folayan
 Chair, AFRINIC Board
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