[rpd] Statement from Legal Counsel

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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