[rpd] Appeal Committee Response - Re: (Fwd) Appeal Committee status

[Sunday Folayan]

Dear PDWG,

Dear Board Chair,

I believe there is nothing wrong with a 3-persons AC, in as much as all 
their decision at the time of membership depletion to 3, is Unanimous. 
It will however be a serious problem, if any of their decisions, 
post-resignation is a split, ie 2-1.


In addressing the action of the board in its communication to the AC, 
the relevant sections of the TOR are:


*2.3. In the event that a member of the appeal committee is the author 
or co-author of a policy which becomes the subject of an appeal brought 
before this committee, any such member must recuse himself from the 
deliberations and must abstain from all votes taken by this committee in 
regards to such policy. If the committee or the board believe it 
necessary, the board shall appoint temporary replacement members to the 
committee based on the same eligibility requirements by which the 
affected members were appointed.*

*3.3. **Terms **
*

*3.3.1. The Board has the right to replace any or all Appeal Committee 
members at any time. Such decision of the Board must be by at least 
three-quarters of the Board **
*

*3.3.2. Every three (3) years, or more often at its sole discretion, the 
Board shall replace the entire Appeal Committee. **
*

*3.3.3. The board may review candidates appointed under section 3.1.1 
and where applicable shall replace them with candidates fitting the 
criteria in section 3.1.1 **
*

*3.3.4. In the event that an appeal is in progress at a time when the 
Board considers replacement of any or all Appeal Committee members, then 
the Board should delay any such replacement until such time as there is 
no appeal in progress; except that, if there continue to be appeals in 
progress after six (6) months, then the Board shall not delay any longer. **
*

*3.4. Filling of Vacancies **
*

*3.4.1. In the event of a resignation, or a Board decision to replace a 
member of the Appeal Committee, or any other reason for a vacancy, then 
a replacement member shall be selected by process described in 3.1*


So, Per the TOR:

1. Asking the AC to stop work, is not the same as a decision to replace 
any of the members of the AC. So, that action is not in alignment with 
the TOR

2. The Board has the right to replace any or all of the Appeal 
Committee, however, 75% of Board members must take that decision. (vide 
3.3.1).

3. What is needed is not a replacement, it is filling of vacancies. 
(vide 3.4.1)

4. Even if the Board wants to replace a member of the AC, it shall delay 
for up to 6 months, if there are appeals in progress (Vide 3.3.4).

5. The TOR does not talk about Quorum, or the need for the full 
complement of the members to hear all appeals. Indeed, it recognizes 
that members may recuse themselves from hearing an appeal (vide 2.3.3)

For emphasis, if the depleted AC maintains a run of Unanimous decisions 
on its decisions, it is good for the working group and No cause for alarm.

It is the responsibility of the Board (If it believes it needs to fill 
the vacancy or the committee requests so) to inform the PDWG that it 
wants to appoint temporary or permanent members to fill the vacuum 
occasioned by the resignations. It can also ask for some time to process 
and those appointments.

Could this be the intention of the Board with that communication to the 
AC? Chair can please clarify.

Thanks.

Sunday.


On 2/19/21 11:41 AM, Sami Ait Ali Oulahcen via RPD wrote:

> Hi,

>

> My understanding of the ToR was that the current situation falls under 

> 3.4 (filling of vacancies) and not 3.3.4 (replacement).

> Imagine a scenario where all members of the committee resign and an 

> appeal is in progress, if this falls under section 3.3.4, then no one 

> shall be replaced leaving an empty committee to judge.

> Maybe legal can shed more light on this ?

>

> Regards,

> Sami

>

> On 2/19/21 7:57 AM, Dr P Nyirenda wrote:

>>

>> Board Chair, AFRINIC,

>>

>> The Appeal Committee (AC) held its scheduled meeting on Thursday, 18 

>> Feb 2021, online

>> where it also considered on it agenda your e-mail sent to individual 

>> Appeal Committee

>> members as copied here below.

>>

>> As you will see in the AC minutes soon to be published, the quorate 

>> meeting was chaired by

>> Adam Nelson and I was asked to send you a reply to your e-mails.

>>

>> The Committee noted in its terms of reference (ToR) that the AFRINIC 

>> Board has the right to

>> replace any or all Appeal Committee members subject to ToR Section 

>> 3.3.1 among others,

>> see https://afrinic.net/policy/appeal-committee#tor

>>

>> However the Committee observed in Section 3.3.4 of the ToR that:

>> "3.3.4. In the event that an appeal is in progress at a time when the 

>> Board considers

>> replacement of any or all Appeal Committee members, then the Board 

>> should delay any such

>> replacement until such time as there is no appeal in progress; except 

>> that, if there continue to

>> be appeals in progress after six(6) months, then the Board shall not 

>> delay any longer."

>>

>> The Committee then agreed to finalise processing the appeal that was 

>> in progress after

>> which the Committee agreed to await further direction from the Board.

>>

>> Here then attached, for your copy, is the finalised Appeal Committee 

>> report on the policy

>> compliance dashboard proposal AFPUB-2020-GEN-001-DRAFT01 that the Appeal

>> Committee has now finalised and has already submitted to the PDWG 

>> through the RPD

>> mailing list as its ToR require.

>>

>> The Appeal Committee would like to bring to your attention that there 

>> are two appeals also in

>> progress as listed in the AC timeline 

>> https://afrinic.net/policy/appeal-committee#appeals that

>> are subject to ToR Section 3.3.4 and hence the AC awaits further 

>> directions from the PDWG

>> and/or the Board.

>>

>> Regards,

>>

>> Dr Paulos B Nyirenda

>> AFRINIC Appeal Committee Member

>>

>>

>> ------- Forwarded message follows -------

>> Date sent:                  Thu, 18 Feb 2021 05:17:56 -0800

>> To:                             P Nyirenda <paulos at sdnp.org.mw>

>> From:                      0;   chair at afrinic.net

>> Subject:                     A ppeal Committee status

>> Copies to:                  pdwg-appeal-commi ttee at afrinic.net, 

>> legal at afrinic.net

>>

>>

>> Dear Dr Nyirenda,

>>

>> We refer to the two recent resignations from the Appeal Committee.

>>

>> AFRINIC stands legally advised that in line with the AFRINIC Policy

>> Development Appeal Committee Terms of Reference, Version 2 (2017),

>> the Appeal Committee is a committee made up of five members.

>>

>> Since the committee is no longer properly constituted, the remaining

>> members cannot continue with their work until the committee is

>> re-constituted by the AFRINIC Board of Directors.

>>

>> We thank you for your understanding and your usual collaboration.

>>

>> Regards,

>> S. Moonesamy

>>

>> Board Chair, AFRINIC

>> Mobile: +230 5824 5410

>>

>>

>> -- 

>> This message has been scanned for viruses and

>> dangerous content by MailScanner, and is

>> believed to be clean.

>> ------- End of forwarded message -------

>>    ------- End of forwarded message -------

>>

>>

>>

>>

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>

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