[rpd] Statement from Legal Counsel

[Daniel Yakmut]

Hi Members, if a policy proposal has reached a point for board"s (AfriNIC)
action. How does it get communicated. Because,  I am.getting confused here.

What Frank quoted showed clearly the community was informed on the progress
of the proposal and the directions the document was moving. So I don't see
connivance of any form.

So why crying wolf.

Simply
Daniel

On Dec 14, 2020 11:28 AM, "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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> >>

> >>

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