[rpd] Statement from Legal Counsel

Mon Dec 14 10:19:07 UTC 2020

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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