[rpd] Statement from Legal Counsel

Mon Dec 14 19:35:21 UTC 2020

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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