[rpd] Statement from Legal Counsel

[ABDULKARIM OLOYEDE]

Dear Community



We wish and belive we need to make the following clarifications at this
point:



*1.* Law in general is inapplicable here and the PDP is run and managed
according to the CPM. We have never been subjected to any law apart from
the CPM. Whilst the Board is legally bound to act in accordance with the
Mauritian Companies Act, we wish to clarify that this only applies to the
day-to-day operation of AFRINIC as a company and do not apply nor have any
relation to the due process of the PDP or the Board’s position under the
CPM.



*2.* We wish to clarify that we have already retracted our initial
consensus (made on 21st September 2020) in regards to the resource transfer
policy which the appeal is against. We then gave an ample time of 3 weeks
for the community to discuss the matter. Consequently, the current appeal
based on passing the last call’s initial decision (made on 21st September
2020) should be voidas it is invalid. Whereas, as for the new decision made
on 16th November 2020, we wish to clarify that to the best of our knowledge
no appeal has been requested and the appeal timeframe of 2 weeks have duly
elapsed. Therefore, it should be strongly noted that our new decision has
not been challenged. We also gave enough notice for discussion of the final
draft  that was posted on the making list before we arrived at a decision.



*3.* In any case, if it was challenged within the time frame, there is no
clause in the CPM that states that once there is an appeal then the process
stops. An appeal against the decision of the chairs does not stop the
chairs from processing the same to the board. It should be noted that the
legal principle of *pendente lite *is not applicable, due to the obvious
fact that AfriNIC is not a court and, as such, equivalating the due process
of the PDP to a court litigation’s process is just plainly
inapplicable. Additionally,
during the second vetting, we made sure that the authors have addressed all
of the concerns raised by the community and we did not find any major
objection that was not addressed apart from that of the legecy holders and
we have since clarified this. As such, there were no reasons for the
Co-chairs to doubt the position of the community on this policy proposal.
Infact in out last email, asking for comments there was no comment at all
from the community.



*4.* We relied on the following to allow for changes/discussion during the
last Last Call:

(a) CPM: The CPM states that “*A final review of the draft policy is
initiated by the Working Group Chair(s) by sending an announcement to the
Resource Policy Discussion mailing list. The Last Call period shall be at
least two weeks. The Working Group Chair(s) shall evaluate the feedback
received during the Public Policy Meeting and during this period and decide
whether consensus has been achieved*”. Based on our level of education and
dictionary meaning of the two word “final” and “review”, we came to the
conclusion that a review is allowed during the last call.

(b) Precedence: There were changes made during the last call for other
policies in the past, as shown on the following links:

(i) https://afrinic.net/policy/development-working-group/ppm-afrinic-18

(ii) https://afrinic.net/policy/development-working-group/ppm-afrinic-21

(iii) https://afrinic.net/policy/development-working-group/ppm-afrinic-22

(iv) https://afrinic.net/policy/development-working-group/ppm-afrinic-25



*5.* Moreover, the Board Prerogatives Policy has passed without being
appealed, which according to the CPM rules, the decision cannot be reversed
until a new proposal is submitted and reaches consensus. Therefore, in our
own opinion, it is up to the Board/ to decide on how they (Board) will move
forward in regards to the “legal advice” provided. However, we wish to
point out that in generality, the wishes of the community must come first
and the Board/Afrinic must prioritize to accommodate the community’s
wishes. We would always abide by the wish of the community.



 *6.* We also wish to clarify that it is of utmost importance to understand
that the CPM is self-contained, in which the CPM is not reliant to any
other document or any another set of rules. An attempt to subject the CPM
to the Bylaws and the Board’s prerogatives are just plain wrong. Moreover,
in the event of any inconsistency between the community’s wishes and any
written laws of Mauritius, the community even has the right to relocate
AFRINIC’s current existence to another jurisdiction should the community
wishes to do so because AFRINIC (especially the PDWG and the PDP) is not
answerable to any specific set of law as clearly earlier explained by Jordi.



*7.* We wish to clarify pertaining both the policies (i.e. the policies
entitled “Resource Transfer Policy” and “Board Prerogatives”) that, as
co-chairs, we had duly performed all of our duties in accordance with the
PDP. It should be noted with clarity that when we pass the policy to the
Board, our duty ends at that point onward (i.e. we have sent the passed
policy and the summary of our recommendation for ratification to “
board at afrinic.net”). Therefore, any further decisions to be made in regards
to the policies are subject to the Board/AfriNIC. When both the policies
were being submitted by us to the Board to be tabled at their (Board’s)
meeting, we were informed that we were supposed to submit the 2 policies 14
days prior to the Board meeting. We wish to clarify that we are fine for
the policies to be tabled during the Board’s next meeting because by then
the Board should have more than sufficient time to table the 2 policies in
their next meeting. In the event the staff/Board requires further
clarification, we will be more than happy to provide the needed
clarification. However, kindly take note that at this point, the
administrative issues are not a burden to be borne by the Co-chairs as this
is an issue to be dealt with by the Board.



*8.* According to the email dated 10th December 2020 posted by Mr
Ashok(Legal Counsel of AfriNIC), there is no reference made to indicate
that any proposal was sent or discussed by the Co-chairs with the Board,
but yet, there are already assumptive statements made by the community to
reflect as if that was the actual case. We once again re-affirm that this
is never the position and urge everyone to stop this baseless accusation,
as this will further (i)confuse the mailing list, (ii)create unnecessary
tension in the community and (iii) unfairly tarnish the reputation/image of
the Co-chairs.



*9.* We, as Co-chairs are supposed to be the one to request for staff
assessment according to the CPM. However, in recent past, it has been a
tradition for staff assessment to be provided without asking. We have taken
this assessment into consideration whenever it was provided before our
decisions. However, we did not request for staff assessment neither did we
request compatibility check. Authors and staff decided to check and we were
only looking as an observer.



*10.* To the best of our knowledge, we wish to clarify again that we have
not at any time breached any section of the CPM in reaching our decisions
on the 2 proposals which have reached consensus recently. As such, we seek
the community’s kind understanding in further refraining to allege
otherwise, as we have duly performed our duties in accordance with the CPM.



*11.* We sincerely hope that our clarifications manage to clear any
misunderstanding.



*12.* We sincerely thank the community for the continued support and trust
and we promise to continue to live up to and beyond the expectation of the
community.





Sincerely,

Co-chairs

PDWG





On Thu, Dec 17, 2020 at 3:33 AM Gregoire EHOUMI via RPD <rpd at afrinic.net>
wrote:


> Bottom-up self-governance structure for setting local policies

>

> Jordi,

>

>

> What this policy is about, is to **allow** the bylaws to be correct and

> not need to modify them, otherwise, the bylaws are enforcing a breach of

> the PDP, which should be brought to ICANN, as it constitutes an ICP-2

> breach.

>

> Regards,

>

> Jordi

>

> ####################

>

> Which principles of the ICP-2 is been breached?

>

> Let us not go into individual and personal interpretation of important

> aspects of the governance of AFRINIC simply because we had some issue with

> some element of the ecosystem.

>

> The ICP-2 principle 3 imposes clearly that the procedures for the

> development of resource management policies must be open and transparent,

> be accessible to all interested parties, and ensure fair representation of

> all constituencies within the region.

>

> The model of governance set a framework within which each sub-group

> operates and exercise its powers.

>

> The RIR's did an accountability assessment recently. See below link.

>

>

> https://www.nro.net/accountability/rir-accountability/regional-internet-registry-accountability-assessment-reports/

>

> Also a governance matrix can be seen in the below link as well.

>

>

> https://www.nro.net/accountability/rir-accountability/rir-governance-matrix/

>

> Let us not rush into destabilizing the system by trying to fix problems

> not clearly identified and in an uncontrolled manner.

>

> —Gregoire

>

> ####################

>

> @jordipalet

>

>

>

>

> El 15/12/20 17:27, "Sunday Folayan" <sfolayan at skannet.com> escribió:

>

>

> Dear Legal Counsel,

>

> Dear Board Chair,

>

>

>

> Permit me to make the following comments on the Legal Counsel's email.

>

> Clearly, the CPM states:

>

>

>

>

> _______________________________________________

> RPD mailing list

> RPD at afrinic.net

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

>


-- 
Website <http://www.unilorin.edu.ng>, Weekly Bulletin 
<http://www.unilorin.edu.ng/index.php/bulletin> UGPortal 
<http://uilugportal.unilorin.edu.ng/> PGPortal 
<https://uilpgportal.unilorin.edu.ng/>


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.afrinic.net/pipermail/rpd/attachments/20201217/1471882a/attachment-0001.html>