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[rpd] Statement from Legal Counsel

Murungi Daniel dmurungi at wia.co.tz
Mon Dec 14 11:28:36 UTC 2020


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

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

>>>

>>>

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>>

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>>

>

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