[rpd] Statement from Legal Counsel

[Paschal Ochang]

Dear Community,

I’d like to point out the following remarks:
1. Any legal mentions in the email regarding the PDWG are invalid and
deemed wrong since Afrinic’s work and operations are a separate entity from
the PDWG. Basically, in the PDP, the CPM is its bible and the community is
its god. Law has no relevance at all, as Jordi said, the CPM must be
SELF-CONTAINED.
2. Nowhere in the CPM does it state that the co-chairs cannot respond to
the authors of the policies appealed. As said before, only the CPM rules in
the PDP and nothing else such as “the legal principle of pendente lite” as
clearly AFRINIC is not a court.
3. There has been no request from the community for Afrinic’s legal
assessment. This a breach of the CPM (3.4/3.4.1). Unless someone from the
Afrinic Board can justify who requested for their judgement, the legal
assessment should be disregarded for its violation of the CPM.
4. For the Resource Transfer Policy, the co-chairs stepped back by
extending the last call period and allowing the community more discussion
time (which was requested by members of the community), which renders the
appeal invalid. As for the final decision on consensus, it is still valid
since it has not being filed for an appeal in the 2 weeks period that has
followed.
5. The Board Prerogatives Policy has reached consensus smoothly and was
neither appealed nor challenged. The community always comes first and
Afrinic must adapt its bylaws so as to satisfy the community’s needs, as
simple as it is.
6. We are today facing an unprecedented situation. The very foundation of
RIR system’s legitimacy, the bottom up process, is at risk. if AFRINIC ltd
is being viewed as directly interfering with community and co-chairs’s
independence, a potential interpretation of top-down approach, Governments
and ITUs could come along and claim the very legitimacy of  RIR system(the
community and its bottem up process) no longer exists, arguing that the
system itself no longer serves its function and should be dissolved.

On Sunday, December 13, 2020, Arnaud AMELINA <amelnaud at gmail.com> wrote:


> Dear Sunday

>

> We saw in communication from legal, discussions between CEO and cochairs

> about  2 proposals which were recently in last call  with the outcome we

> all know.

>

> The WG was not informed by the cochairs  about  the origin  and

> motivations of these discussions.

>

> I could not imagine ceo/legal intervening  in discussions on proposals

> without  WG or co-chairs request..  thus I query for information about what

> it is going on.

>

> Regards

>

> --

> Arnaud

>

> Le dim. 13 déc. 2020 à 13:50, Sunday Folayan <sfolayan at skannet.com> a

> écrit :

>

>> Dear Arnaud,

>>

>> I must have missed some embedded message in the Legal Counsel's email.

>>

>> Can you please point out the relevant line in the Legal Counsel's email,

>> that seems to say, or suggest that a recommendation was made to the Board

>> by the Co-Chairs, that the PDWG is not aware of. This will help me make a

>> better interpretation of the Email and its content.

>>

>> Thank you.

>>

>> Sunday.

>> On 12/13/20 11:35 AM, Arnaud AMELINA wrote:

>>

>> Hello, PDWG members

>>

>> It appears in recent communications from legal counsel that co-chairs

>> have recommended some draft policies for approval by board.

>>

>> Why are the recommendations, including the reports prescribed by section

>> 3.4.4, not published on this rpd for the sake of transparency and the

>> practices in the matter?

>>

>> Where did the resource transfer proposal version 5.0 come from?

>>

>> We seem to have abandoned the PDP and its key underlining principles.

>>

>> Regards

>>

>> --

>> Arnaud

>>

>> Le mer. 9 déc. 2020 à 16:25, Ashok <ashok at afrinic.net> a écrit :

>>

>>> *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 - **https://afrinic.net/policy/proposals/2020-gen-004-d2#impact

>>> <https://afrinic.net/policy/proposals/2020-gen-004-d2#impact>**. *

>>>

>>> *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 presently the

>>> 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. *

>>>

>>> *Ashok.B.Radhakissoon.*

>>>

>>>

>>> *Legal  Counsel *

>>>

>>>

>>>

>>>

>>>

>>>

>>> _______________________________________________

>>> RPD mailing list

>>> RPD at afrinic.net

>>> https://lists.afrinic.net/mailman/listinfo/rpd

>>>

>>

>> _______________________________________________

>> RPD mailing listRPD at afrinic.nethttps://lists.afrinic.net/mailman/listinfo/rpd

>>

>>


-- 
Kind regards,

Paschal.
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