[rpd] Comments on AFPUB-2020-GEN-004-DRAFT01 - Board Prerogatives on the PDP

[Noah]

On Wed, Oct 21, 2020 at 1:57 PM JORDI PALET MARTINEZ via RPD <
rpd at afrinic.net> wrote:


> Hi Noah,

>

>

>

> It is very well explained in the proposal and if you read the bylaws you

> will see that this proposal is not contradicting it, on the other way

> around.

>


No Jordi, again I disagree and believe me I have read the company act, the
bylaws, the CPM so many times and like I said, your proposal contradicts
the bylaws and if I go further it may also raise issues with the company
act.

Section 3.1 of the bylaws is very clear as per below *bold*

3.1  Scope of the PDP

The Policy Development Process covers the development and modification of
policies for handling Internet Number Resources within the AFRINIC service
region. Changes to the Policy Development Process itself will also follow
the process.

*Internet number resource policies are distinctly separate from AFRINIC
general business practices and procedures. General business practices and
procedures are not within the purview of the Policy Development Process. *




>

> The bylaws already said that, but the PDP not. So, making them in-sync is

> the right thing to do.

>


Again, *section 3.1* is very clear that the PDP is distinct and separate
from AFRINIC general business *practices* and *procedures* bro. This
proposal tries to interfere with AFRINIC as a company and by that I mean
the board.



>

> Unless I missed something and you can point out exactly where is the

> contradiction?

>


Ok let me try... the board appoints the AC. The AC role is to look at the
CPM and interpret it. This is not the Board role since the board appoints
the AC to do that.

The board operates by the bylaws which are a members constitution which is
a requirement as per the company act. So it's fair to say that the board
prerogative is from both the bylaws and the bylaws also recommends that the
board come to the community in case of any policy issues and the board has
been doing this for years.

You can not therefore succumb the directors/board to the CPM because that
would be pure encroachment into the powers of the board by the community by
also restricting the directors to the CPM contrary to the same CPM section
3.1.




>

> The point here is that it was wrong for the bylaws to state that, it is a

> PDP matter not a bylaws one. The members (and thus the board) can’t impose

> anything to the community, that’s against the ICANN ICP-2. What is right is

> that the members (and the board) bring to the PDP whatever ideas they have,

> and if the community approves them by bottom-up consensus, then it goes on.

>


Bro, the ICP-2 recommends that we follow the bottom up process etc but at
the regional level, there are other rules whether the members constitution
or the company act in Mauritius and believe me, you don't want to start
contracting this up by mixing the bylaws, company act and CPM. So this
ICP-2 argument is irrelevant because the bottom up consensus you are
talking about already exists and works as per the CPM.



>

> I fully support that in extreme situations the board can take decisions,

> but they should be brought back to the community, this is **exactly**

> what the bylaws say and the PDP should match that.

>


No the PDP doesn't have to match that otherwise members will have to change
section 3.1 of the bylaws which requires special resolutions bro.

And by the way, you don't want all powers to be given to the co-chairs to
determine all the committees etc including the AC.

It's fair to say that we let the executive branch have its powers separate
from the legislature and let the courts be independent of both the
executive branch and the legislature.

In fact the proposal in simple terms means that when it is to be ratified,
as per the proposals section 3.6.1 below, we shall have no more Appeals
committee or any other committee for that matter which is very dangerous.

3.6.1 Temporary Provisions

When this policy reaches consensus, any existing relevant Board or
Committees processes or policies will automatically *decay* and can only be
re-introduced as a draft policy proposal.


The current process works for us and my recommendation to you is to share
some of your ideas with the board when they send the ToR to the community
for inputs in the next iteration.

So this won't work and I have serious problems with this proposal and I
strongly oppose it.

Cheers,
Noah
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