[rpd] Statement from Legal Counsel

[Murungi Daniel]

Dear Yakmut,

Clearly the Co-chairs tried to ’sneak’ one past the community (If this was a mistake, then they should say so). 

And yes, some sense of paranoia is required to keep all of us on our toes. Additionally this serves as a check to ensure that Co-chais are following the right procedures and not going willy nilly (as shown below).


Regards,
Murungi Daniel 


> On Dec 14, 2020, at 1:26 PM, Frank Habicht <geier at geier.ne.tz> wrote:

> 

> 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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