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[rpd] Statement from Legal Counsel
Murungi Daniel
dmurungi at wia.co.tz
Mon Dec 14 16:16:53 UTC 2020
Dear Badru,
Well stated.
I think it is great that the legal counsel gave an opinion. Why? If am nearing the edge of a cliff, it is to my benefit if someone warns me of impending doom.
Regards,
Murungi Daniel
> On Dec 14, 2020, at 6:53 PM, Badru Ntege <badru.ntege at nftconsult.com> wrote:
>
> @Taiwo Oyewande <mailto:taiwo.oyewande88 at gmail.com>
>
> We need to keep perspective of the role of legal counsel while acknowledging that AfriNIC does not exist in a vacuum but in a physical jurisdiction with laws. For that reason AfriNIC has a retained a legal counsel to share legal opinion.
>
> Legal opinion is always just that and we as the community at large take that opinion as one of many points of information shared to help us arrive at a position.
>
> Not all opinion will be acceptable to all and thus the idea of consensus.
>
> I urge the community not to slide back to the days of personal attacks.
>
> Please state your point in a general way so that others can build on factual points without being dragged into personification.
>
> Regards
>
> Badru
>
>
> From: Taiwo Oyewande <taiwo.oyewande88 at gmail.com <mailto:taiwo.oyewande88 at gmail.com>>
> Date: Monday, 14 December 2020 at 16:34
> To: "ashok at afrinic.net <mailto:ashok at afrinic.net>" <ashok at afrinic.net <mailto:ashok at afrinic.net>>
> Cc: "rpd >> AfriNIC Resource Policy" <rpd at afrinic.net <mailto:rpd at afrinic.net>>
> Subject: Re: [rpd] Statement from Legal Counsel
>
> Dear Ashok,
>
> At the first instance of seeing your email, i felt a great sense of disappointment.
>
> You are a well respected member of the community, u rarely let you voice be heard except you have a point of order or want to drive the community in a certain direction.
>
> At this point, your mail seems totally wrong to me based on your office, the respect the community has for you and also based on the delicate time the message is coming as it looks to drive the community, the appeal team and even the recall team against the co-chairs who have worked tirelessly for the community.
>
> In your mail, you stated that you have no intention or mandate to interfere in the PDWG, but you did the exact opposite by this mail based on your office (in which powers u acted) and status in the community.
>
> You claim to give advice to the co-chairs but you tender not so subtle pointers and threats of legal actions and public image.
>
> I can not claim to know your intentions while writing this mail, but i can say what it looks like to ME. It looks like a tactical cohesion of the appeal committee, the recall team and the community at large against the cochairs.
>
> #how i see it
>
> Taiwo
>
>
> On 14 Dec 2020, at 13:40, Paschal Ochang <pascosoft at gmail.com <mailto:pascosoft at gmail.com>> wrote:
>
> Arnaud,
>
> It seems you are not disciplined enough to hold ethical discourse and lack mailing etiquettes. I usually don't comment a lot but I will not refrain to respond to you cos I think you always feed on personal attacks rather than engaging in healthy discussions.
>
> Some few people have responded to my mail like frank. Why didn't he use a scathing approach?
>
> Like it or not my usage of religious analogies does not in anyway relate to my lack of understanding of the PDP which shows your clear lack of understanding of my points and an attempt to misguide this community.
>
> Section 3.4.1 of the PDP has provision for impact analysis from AFRINIC (technical, financial, legal or other) of proposals.
>
> But the same section says it has to be requested by the Co-Chairs
>
> Why did you leave that out? Why didn't you quote that as well.
>
> Then again there are other sectors and sections but when it comes to the PDP it is the community that has the power.
>
> You are trying to misinform the community deliberately.
>
> On Monday, December 14, 2020, Arnaud AMELINA <amelnaud at gmail.com <mailto:amelnaud at gmail.com>> wrote:
> Hi Pascal,
>
> I will refrain from commenting on your analogy with “bible” and its god”, even though It shows a lack of understanding of how the RIR system work.
>
> The governance includes several aspects with roles and responsibilities to specific groups.
>
> Let not overestimate the “community” powers here. All must stay in its remit and follow the appropriate mechanisms to update the existing governance model if needs arose.
>
> The bottom-up policy development process derived from principle 3 of iCP-2 includes “the check and balance” (appeal, recall, board approval of draft policies, Board make policy when deem necessary....)
>
> Section 3.4.1 of the PDP has provision for impact analysis from AFRINIC (technical, financial, legal or other), of proposals
>
> These impacts analysis have always been taken very seriously whenever they are provided.
>
> It is then worrying to see this constant disregard to staff analysis.
>
> As for the bottom-up being at risk, because of the intervention of staff or legal, the PDP and its underlying bottom-up has been at risk long ago with the numerus dysfunctions with the PDP which led to unprecedented situation we are in.
>
> Regards
>
> --
> Arnaud
>
> Le dim. 13 déc. 2020 à 21:30, Paschal Ochang <pascosoft at gmail.com <mailto:pascosoft at gmail.com>> a écrit :
> Dear Community,
>
> I’d like to point out the following remarks:
> 1. Any legal mentions in the email regarding the PDWG are invalid and deemed wrong since Afrinic’s work and operations are a separate entity from the PDWG. Basically, in the PDP, the CPM is its bible and the community is its god. Law has no relevance at all, as Jordi said, the CPM must be SELF-CONTAINED.
> 2. Nowhere in the CPM does it state that the co-chairs cannot respond to the authors of the policies appealed. As said before, only the CPM rules in the PDP and nothing else such as “the legal principle of pendente lite” as clearly AFRINIC is not a court.
> 3. There has been no request from the community for Afrinic’s legal assessment. This a breach of the CPM (3.4/3.4.1). Unless someone from the Afrinic Board can justify who requested for their judgement, the legal assessment should be disregarded for its violation of the CPM.
> 4. For the Resource Transfer Policy, the co-chairs stepped back by extending the last call period and allowing the community more discussion time (which was requested by members of the community), which renders the appeal invalid. As for the final decision on consensus, it is still valid since it has not being filed for an appeal in the 2 weeks period that has followed.
> 5. The Board Prerogatives Policy has reached consensus smoothly and was neither appealed nor challenged. The community always comes first and Afrinic must adapt its bylaws so as to satisfy the community’s needs, as simple as it is.
> 6. We are today facing an unprecedented situation. The very foundation of RIR system’s legitimacy, the bottom up process, is at risk. if AFRINIC ltd is being viewed as directly interfering with community and co-chairs’s independence, a potential interpretation of top-down approach, Governments and ITUs could come along and claim the very legitimacy of RIR system(the community and its bottem up process) no longer exists, arguing that the system itself no longer serves its function and should be dissolved.
>
> On Sunday, December 13, 2020, Arnaud AMELINA <amelnaud at gmail.com <mailto:amelnaud at gmail.com>> wrote:
> Dear Sunday
>
> We saw in communication from legal, discussions between CEO and cochairs about 2 proposals which were recently in last call with the outcome we all know.
>
> The WG was not informed by the cochairs about the origin and motivations of these discussions.
>
> I could not imagine ceo/legal intervening in discussions on proposals without WG or co-chairs request.. thus I query for information about what it is going on.
>
> Regards
>
> --
> Arnaud
>
> Le dim. 13 déc. 2020 à 13:50, Sunday Folayan <sfolayan at skannet.com <mailto:sfolayan at skannet.com>> a écrit :
> Dear Arnaud,
>
> I must have missed some embedded message in the Legal Counsel's email.
>
> Can you please point out the relevant line in the Legal Counsel's email, that seems to say, or suggest that a recommendation was made to the Board by the Co-Chairs, that the PDWG is not aware of. This will help me make a better interpretation of the Email and its content.
>
> Thank you.
>
> Sunday.
>
> On 12/13/20 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 presently the 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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>
> --
> Kind regards,
> Paschal.
>
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> --
> Kind regards,
> Paschal.
>
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