[rpd] Statement from Legal Counsel

Mon Dec 14 10:26:10 UTC 2020

Hi,

On 14/12/2020 13:19, Daniel Yakmut via RPD wrote:
> Dear Arnaud,
> 
> Please are these insinuations for real. How could Co-Chairs recommend
> draft policies for board approval.

https://lists.afrinic.net/pipermail/rpd/2020/011989.html
5. *We believe that the proposal AFPUB-2019-V4-003-DRAFT04 (Resource
Transfer Policy) has successfully reached Consensus and we shall be
forwarding same to the AFRINIC board for ratification. *

Regards,
Frank

> 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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