[rpd] Statement from Legal Counsel

[Gaby Giner]

To the community,

To some extent, I have read those that share my same concerns.
Nevertheless, here they are.

The current situation aroused my concern since it clearly violates the
sections 3.4 and 3.4.1 by being an unrequested legal assessment from
AFRINIC. I understand that it is merely nonbinding advice, but it sets a
difficult precedence. Most importantly, it is a legal point of view, which
is inapplicable here. The PDWG has no legal existence and follows neither
the Mauritian law nor any other country’s law as far as I know.

Thanks,
Gaby

On Wed, Dec 16, 2020, 4:11 PM Daniel Yakmut via RPD, <rpd at afrinic.net>
wrote:


> Dear Marcus,

>

> I have always understood you shortcomings therefore I wont waste time

> arguing back and forth with you. The PDP the Co-Chairs are not following, I

> suspect is the one defined by you or else I cannot see the non-compliance.

>

> For the first time you said something reasonable, I agree we cannot

> compromise standards and we need to hold each other accountable. However, I

> have never seen you doing that, because you rather reduce discussions to

> attacks and attempted intimidation as you just did with your last mail.

>

> Simply

>

> Daniel

> On 15/12/2020 7:45 pm, Marcus K. G. Adomey wrote:

>

> Hi Daniel

>

> I completely understood you and your confusions and diversions.

>

> Note that nobody is castigating the cochairs. They serve at cochairs as

> defined by the PDP.

>

> You have consistently stated the most outrageous things about this

> community and pointed fingers to members of this community every time

> anyone attempt to caution the cochairs.

>

> The cochairs not once but a number of times have failed to follow the PDP

> unless members of the working group  constantly reminds them to do so and

> when raised you now say hey xyz is castigating cochairs and then level

> personal attacks making it all sour.

>

> You need to stop and start accepting that holding each other to the high

> standards is perfectly normal and accountability has nothing to do with

> your endless personal attacks insinuation and division talking points.

>

>

>

> Marcus

>

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

> *From:* Daniel Yakmut <yakmutd at googlemail.com> <yakmutd at googlemail.com>

> *Sent:* Monday, December 14, 2020 8:07:36 PM

> *To:* Marcus K. G. Adomey <madomey at hotmail.com> <madomey at hotmail.com>

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

> Ashok <ashok at afrinic.net> <ashok at afrinic.net>; Arnaud AMELINA

> <amelnaud at gmail.com> <amelnaud at gmail.com>

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

>

> Dear Marcus,

> Maybe you didn't understand my position, the mess is the attempt by some

> members to continue to lay booby traps everywhere in  the PWDG.

>

> Moreso, I have remained consitent, that the Co-chairs should not be

> castgated for trying to do their work.

>

> I love archives because they remind me where I have been and where I am

> possibly heading.

>

> Simply

> Daniel

>

> On Dec 14, 2020 8:49 PM, "Marcus K. G. Adomey" <madomey at hotmail.com>

> wrote:

>

> Hi Daniel,

>

> Are you discovering the “mess”?

>

> The mess is created and maintained when the PDP is no longer followed and

> WG’s powers usurped by people entitled only in an administrative roles.

>

> When people lose confidence in process system or people, you should expect

> this kind of vigilance and queries for transparency and accountability.

>

> Knowing where you stand, It is not surprising that you are not concerned

>  when you saw discussions on policy proposals in that context.

>

> The archives have records and will convey the responsibility of each of

> us.

>

>

>

> Marcus

>

>

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

> *From:* Daniel Yakmut via RPD <rpd at afrinic.net>

> *Sent:* Monday, December 14, 2020 10:19:07 AM

> *To:* Arnaud AMELINA <amelnaud at gmail.com>; Ashok <ashok at afrinic.net>

>

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

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

>

>

> Dear Arnaud,

>

> Please are these insinuations for real. How could Co-Chairs recommend

> draft policies for board approval.

>

> 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> 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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