[rpd] Statement for legal Counsel

[Blaise Fyama]

Effectivement cher Kakel, on sent une bataille rangée des uns contre les
autres.
Est-ce juste et profitable pour la communauté que l'on s'entre déchire
parce que ne voyant pas les choses de la même façon ?
Une dose de tolérance est requise et s'impose dans un groupe de travail où
la liberté de penser a toute sa place parmi nous.
Les anges et les démons ne cohabitent pas!

Cordialement,
Blaise.

Le mar. 15 déc. 2020 à 11:57, Kakel Mbumb <kakelmbumb at gmail.com> a écrit :


> Bonjour chers tous,

>

> Je ne.me fatiguerai pas à continuer à nous demander de rester objectif

> sur la manière avec laquelle nous nous.adressons mutuellement.

>

> Ayons du respect mutuel pour tout un chacun. S'il s'avère que des

> accusations présomptueuses sont tournées vers un individu ou un groupe des

> membres de la communauté, il est impérieux que nous puissions en apporter

> des preuves et surtout s'adresser à tout un chacun de façon respectueuse.

>

> Chacun peut défendre sa position librement sans que cela ne nécessite que

> l'on s'insulte mutuellement. Nous sommes des responsables et personnalités

> de différents acabits et rangs. Restons objectifs et maîtrisons notre dose

> de subjectivité.

>

> Cordialement.

>

> Le lun. 14 déc. 2020 à 10:07, <rpd-request at afrinic.net> a écrit :

>

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>> Today's Topics:

>>

>>    1. Re: Statement from Legal Counsel (Frank Habicht)

>>    2. Re: Statement from Legal Counsel (JORDI PALET MARTINEZ)

>>

>>

>> ----------------------------------------------------------------------

>>

>> Message: 1

>> Date: Mon, 14 Dec 2020 07:52:50 +0300

>> From: Frank Habicht <geier at geier.ne.tz>

>> To: rpd at afrinic.net

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

>> Message-ID: <5232276b-9f07-b9b4-b23e-3a8cce94f136 at geier.ne.tz>

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

>>

>> Hi,

>>

>> just one thing...

>>

>> On 14/12/2020 00:29, Paschal Ochang wrote:

>> > Dear Community,

>> >

>> > I?d like to point out the following remarks:

>> ...

>> > 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.

>>

>> Ehm....  no.

>>

>> Appeal is still valid.

>>

>> Frank

>>

>>

>>

>> ------------------------------

>>

>> Message: 2

>> Date: Mon, 14 Dec 2020 09:06:24 +0100

>> From: JORDI PALET MARTINEZ <jordi.palet at consulintel.es>

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

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

>> Message-ID: <4347733C-9E5F-43F1-AD25-C6882147E6F7 at consulintel.es>

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

>>

>> Even better than that. The Board Prerogatives Policy allows the bylaws to

>> be as they are right now. Otherwise, the bylaws are against the PDP and

>> clearly AFRINIC has not and can?t have any superior power on top of the

>> community!

>>

>>

>>

>> Regards,

>>

>> Jordi

>>

>> @jordipalet

>>

>>

>>

>>

>>

>>

>>

>> El 13/12/20 22:39, "Paschal Ochang" <pascosoft at gmail.com> escribi?:

>>

>>

>>

>> 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.

>>

>> 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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>>

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>>

>>

>> --

>> Kind regards,

>>

>> Paschal.

>>

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