[rpd] Statement from Legal Counsel

[Anthony Ubah]

Dear Arnaud AMELINA,

If close attention is paid to the email which was provided, you can tell
that the communication was not initiated by the co-chairs, but rather the
board that seeks clarification from the co-chairs, pertaining policies
which have reached consensus. Thus was done in accordance to the stipulated
terms of the CPM. The communication seems to portray that the board is
intervening without being requested to do so by the co-chairs.

You further state the following:

“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.”

[Anthony] I am quite confused, in which circumstance did the community or
the co-chairs have act beyond the existing, appropriate mechanism? I fail
to understand the basis of your arguments and your logic here.

“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....)”

[Anthony] On the mentioned basis, please take time to think this over. Are
the board or the Legal Counsel here really performing their duties in
accordance to the account of checks and balance? Also take notice that the
checks and balances are to be subjected and limited to the circumstances
mentioned above.
I believe that this is not a check and balance, but rather a way of
limiting the board’s prerogatives in the PDWG, which will have bad
consequences on the community and will put our PDP at risk.


Finally you clearly took Paschal Ochang's biblical comment out of context,
it's obvious the comment makes no reference to religion, but used as a form
of figurative expression.
We should be cordial.


Kind regards,

Anthony

Date: Mon, 14 Dec 2020 10:52:53 +0000

> From: Arnaud AMELINA <amelnaud at gmail.com>

> To: Paschal Ochang <pascosoft at gmail.com>

> Cc: "rpd >> AfriNIC Resource Policy" <rpd at afrinic.net>

> Subject: Re: [rpd] Statement from Legal Counsel

> Message-ID:

>         <CAGDMR_caVCEjynPfuK_o=4LVmsJ_0fT-NetzZVob34BvVV+=+

> A at mail.gmail.com>

> Content-Type: text/plain; charset="utf-8"

>

> 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 d?c. 2020 ? 21:30, Paschal Ochang <pascosoft at gmail.com> a

> ?crit :

>

> > 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> 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 d?c. 2020 ? 13:50, Sunday Folayan <sfolayan at skannet.com> a

> >> ?crit :

> >>

> >>> 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 d?c. 2020 ? 16:25, Ashok <ashok at afrinic.net> a ?crit :

> >>>

> >>>> *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 *

> >>>>

> >>>>

> >>>>

> >>>>

> >>>>

> >>>>

> >>>> _______________________________________________

> >>>> RPD mailing list

> >>>> RPD at afrinic.net

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

> >>>>

> >>>

> >>> _______________________________________________

> >>> RPD mailing listRPD at afrinic.nethttps://

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

> >>>

> >>>

> >

> > --

> > Kind regards,

> >

> > Paschal.

> > _______________________________________________

> > RPD mailing list

> > RPD at afrinic.net

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

> >

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