[rpd] Statement from Legal Counsel

[Frank Habicht]

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

>>     *

>>

>>     * *

>>

>>     *

>>

>>     *

>>

>>     * *

>>

>>     _______________________________________________

>>     RPD mailing list

>>     RPD at afrinic.net <mailto:RPD at afrinic.net>

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

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

>>

>>

>> _______________________________________________

>> RPD mailing list

>> RPD at afrinic.net

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

> 

> _______________________________________________

> RPD mailing list

> RPD at afrinic.net

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

>