[rpd] Statement from Legal Counsel

[Daniel Yakmut]

Dear Arnaud,

Please are these insinuations for real. How could Co-Chairs recommend 
draft policies for board approval.

1. Are we saying that AfriNIC Staff and Board are oblivious what is 
happening in the RPD that they cannot detect a rogue policy.

2. Some members are literally becoming paranoid.

3. Why are some community members bent in giving a dog a bad name, so 
that it can be hanged.

4. I hope the discerning community members can see through shenanigan 
being thrown around.

I will say what a mess!!!

Simply

Daniel

On 13/12/2020 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 

> <mailto: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

>     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. *

>

>     *Ashok.B.Radhakissoon.*

>

>     *Legal Counsel

>     *

>

>     **

>

>     *

>

>     *

>

>     **

>

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