[rpd] Re: [members-discuss] Separation of Powers in Afrinic - Community and Secretariat (Company)

[Dr Paulos Nyirenda]

On 16 Jun 2015 at 12:53, Andrew Alston <Andrew.Alston at liquidtelecom.com> wrote:

> Hi Omo,
>  
> While I see merit in your ideas, I do however have questions.
>
> In the scenario posed below, how do we deal with potential conflicts between what the
> governance committee might ask for, and what the fiduciary duties of the directors
> are. 

The "fiduciary duties of the directors" in AFRINIC is often overstated and the fear
expressed in your e-mail is a symptom of this.  

AFRINIC is a company limited by guarantee with members rather than shareholders and
hence it should not be necessary to over emphasize such duties as there is significantly
less or no real burden on directors, in my view.

So,  "fiduciary duties of the directors" should not really be used as a weapon or
barrier by the Board to highlight or intensify conflict between the Board and committees
and other bodies that are not made or constituted only of Board members.

I have already said the same for the NDA - it should also not be used as such a barrier
or weapon - to isolate the Board nor cause difficulties where the Board really needs to
hold such valuable consultations or provide service to those committees or bodies.

Regards,

Paulos
======================
Dr Paulos B Nyirenda
NIC.MW & .mw ccTLD
http://www.registrar.mw


>  If a decision is made by the governance committee for implementation by the board,
> and the board feels that such could be to the detriment of the company, the board
> cannot implement it, because of their legal fiduciary duties to always act in the best
> interests of the company as a whole.  Therefore, any such mechanism that we put in
> place is going to have to address these concerns and the terms of reference for such
> an organization will have to be extremely clear as to the boundaries of
> responsibilities. 

> Furthermore, I disagree with your assessment that the governing regulations can be
> changed without the discussion and wide consultation.  The reality is that in order to
> change the regulations, you need a 75% super majority.  You aren't going to get that
> without consultation with the majority.  Now, you could argue that when looking at the
> issue of quorum, the 75% majority becomes easier to attain.  However, you then need to
> look at what is required to actually call for a meeting. 

>  Yes, technically you could have a 10 man quorum, however, there is only one AGMM a
> year (unless a special AGMM is called), and those are held as they always have been in
> conjunction with other meetings which drastically increases their membership base.  If
> however, members did wish to call another quorate meeting, it would require that the
> member requested an SGM.  That demand for an SGM would require the signatures of at
> current count of at minimum 65 members to be valid.  Therefore, you cannot actually
> have a meeting with 10 people at random that is a valid place where the rules can be
> changed.  In addition to this, the notice of special resolutions have very specific
> time lines attached to them, as do the distribution of the notices of these
> resolutions prior to voting on them.  (Such special resolutions have to be distributed
> to the entire membership base within specific timelines before the meeting for review
> and discussion) 

>  I have given a lot of thought to this in the light of the last meeting, and my
> concern is this.  By making the review of bylaws etc the sole purview of some
> committee, do we not potentially introduce yet another body that could operate without
> the will of the masses being heard?  I argue that the fix here is to get the community
> involved, reading what goes to the members list and actively participating in the
> discussions.  It is not simply the creation of yet another committee that acts to its
> own rules while the larger community still remains silent.  Creation of committees
> does not encourage participation, instead it creates yet another silo that sooner or
> later the community may turn upon, and ask for yet another committee, and another, and
> another, and where does it end? 

> What I would prefer to see on this list is comments and discussion from the membership
> base as to how to encourage active participation from our members.  Why is it that in
> the elections and in the voting in the special resolutions, we had less than 10% of
> the membership base exercising their voice in the last AGMM, and in fact if I am
> correct, and I am open to correction, this has been the case since the beginning.  Let
> us understand from our members why they choose to stay silent on issues of governance
> around *their* organization.  Let us understand if the problem is a lack of
> willingness to speak up for fear of something, if it is a lack of knowledge they have
> the RIGHT to speak and be heard, or if it simply apathy.  Each one of these things can
> then be addressed in different ways. 

>  These are my personal views however, and are not necessarily representative of any
> organization or body to which I am affiliated. 

>  
> Andrew
>  
>  
>  
> From: members-discuss-bounces at afrinic.net [mailto:members-discuss-bounces at afrinic.net]
On Behalf Of Omo Oaiya
> Sent: Tuesday, June 16, 2015 3:17 PM
> To: AfriNIC Discuss
> Subject: [members-discuss] Separation of Powers in Afrinic - Community and Secretariat
(Company)
>  
> Dear Colleagues,
> 
> I raised this at the mic in Tunis but it seems to have been lost in the heat of the
moment.  
> 
> I have now assiduously read the bylaws as I should have done long ago.  It is a matter
of concern that governing regulations can be changed without the discussion and wide
consultation that is the hallmark of bottom-up organisations.  The basic principle is
that everyone gets a say in such matters.
> 
> I have only been attending the AGMMs since 2012.  Long enough to notice that the
Afrinic community matures with every passing year but also to realize that there isn't
sufficient representation of the membership at these events.  What's more,  the cliques
that exist amongst the regular attendees encourages behaviour that suggests that we may
be paying lip service to the frequently touted "community" and "consensus"
> 
> It is also dangerous in my opinion for a 1000+ member organisation to have a quorum of
only 10 (ten) members for its AGMM especially when the required composition is examined
in the light of recent experiences with governance and the talk of selling IPs.   From
12.10 of the bylaws.
> 
> 
>     
> 
> (ii) The quorum for an Annual
>         General Member meeting shall be composed of minimum of ten (10)
>         members in person comprising:
>         a) Four (4) Directors elected to represent a region;
>         b) One (1) Director elected on a non-regional criterion; and
>         c) Five (5) Resource Members.
> PROPOSAL:
> 
> Really empower the community as the primary governance organ by separating it from the
company so the reality matches our desires.  In this mode, AFRINIC, an independent
community driven association of members discusses general policies, resource management,
governance matters etc to arrive at outcomes and mechanisms for AFRINIC Ltd, its
secretariat, governed by the bylaws to implement.
> 
> This is about revisiting our organisation to build a stronger and more cohesive
association.  One that ensures that the rights of ALL members are protected so I look
forward to robust discussion that also encourages the participation of new members and
the many lurkers on the list.
> 
> Best wishes
> 
> Omo


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