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[rpd] Statement from Legal Counsel

Ashok ashok at
Wed Dec 9 16:22:45 UTC 2020

*Dear Community members,*

*I refer to AFRINIC’s Chief Executive Officer’s emails dated 30 November
2020 and 03 December 2020 sent to the PDWG’s Co-Chairs to which I was in
copy thereof. Copies of the said emails are also herewith attached.*

*As AFRINIC’s Legal Counsel I wish first to draw your attention to the
PDWG’s Co-Chairs’ declaration of consensus dated 07 October 2020 in
respect of the policy entitled /'Board's Prerogatives'/ –
AFPUB-2020-GEN-004-DRAFT02- as well as the policy entitled /'Resource
Transfer Policy'/ –AFPUB-2019-V4-003-DRAFT04- whereby in the latter
case, consensus was initially declared on 07 October 2020 and which was
subsequently reversed by the Co-Chairs on 17 October 2020.*

*I hold no mandate to interfere in the work of the PDWG and/or its
independence I shall refrain from doing so.*

*Nevertheless, I deem it my duty to tender my advice, for whatever it is
worth and without in any way pressurising, the PDWG, an AFRINIC-related
body to be bound by same.*

*My advice addresses the aforementioned two policy proposals and my
purpose is to ensure that the work of the PDWG thereon as well as its
outcome are both legally in order. I have given anxious consideration to
this matter and also bear in mind that where the acts and doings of the
PDWG are not legally in order, same may have a detrimental effect on the
image and reputation of AFRINIC both as a corporate body and responsible
RIR. *

*In regard to the policy entitled /'Board's Prerogatives'/, I have taken
note of AFRINIC's Staff Assessment report dated 04 November 2020 -
****. *

*You may have noticed that the said report has raised both serious
governance and operational issues as well as areas of uncertainty
observed in the proposed policy which has, up to now, remained
unaddressed. *

*Consequently, it is my humble view that the PDWG may in its wisdom
consider to review its own stand in respect of these policy proposals so
as to avoid any form of encroachment, potential or otherwise, onto the
Board of Director’s prerogatives, the foundations of which are grounded
in articles 3.4 and 15 of the AFRINIC’s bylaws. *

*However, should the PDWG maintain its stand in respect of the above,
then the appropriate motion has to be made during an AGMM, pursuant to
Article 7.7 of the bylaws to amend articles 3.4, 15(1), 15(2) and 15(3)
of the bylaws thus allowing the powers of the Board of Directors to be
subjected to the directives and guidance of the PDWG.*

*As regard the policy entitled /'Resource Transfer Policy'/, the PDWG
may be aware that the said policy (i.e. version 4 thereof) is
presentlythe subject of an appeal before the Appeal Committee and the
matter is yet to be determined. *

*Consequently, the PDWG is hereby informed and advised that it is a
matter of sound and settled legal principle that, pending the outcome of
the Appeal Committee proceedings, it (PDWG) refrains from entertaining
any request emanating from the relevant co-authors of the said policy
proposals for further amending these proposals on the legal principle of
/pendente lite/. It is also my considered view that any attempt in the
meantime by the latter to submit a newly purported version of their
policy proposal will be inadmissible (non-receivable) in law. *

*To close my submission may I urge the PDWG to give due weight to my
non-binding legal advice and consequently appreciate the real risk of
AFRINIC, in the event that the Appeal proceedings are ignored, having to
ratify and implement two policy proposals, on the same subject matter,
which would lead to an unprecedented conflictual situation. *


*Legal  Counsel





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