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[rpd] Clarifications about the Appeal Committee
owen at delong.com
Tue Mar 16 09:40:47 UTC 2021
> On Mar 15, 2021, at 07:01 , chair at afrinic.net wrote:
> Dear Colleagues,
> The Appeal Committee is a committee appointed by AFRINIC's Board of Directors, as stipulated in AFRINIC's Consolidated Policy Manual (CPM) - clause 3.5 refers.
> In accordance with the provisions of the CPM and the Appeal Committee's ToR https://afrinic.net/policy/appeal-committee#tor, an Appeal Committee was duly appointed and constituted of five (5) persons.
> On February 16th, 2021, the Board of Directors became aware of two members of the aforesaid Appeal Committee's resignations.
> The Board of Directors acted promptly and was legally advised that, in the absence of an expressed provision to that effect (i.e. quorum) in the Appeal Committee's ToR, all five (5) members of the Appeal Committee, including any designated chairperson thereof, constitute a quorum for the purposes of the Appeal Committee.
> The Board of Directors sought legal advice to address this issue. It was advised that based on the provisions of the Appeal Committee ToR, the said committee is only lawfully constituted by five members. Any other interpretation would contravene the clear provisions of the ToR.
That’s an absurd interpretation given the specific language in section 3 of the ToR which makes it quite clear that the intent was for the committee to be able to continue processing appeals in progress without interference from the board even in the face of resignations or a desire of the board to reconstitute the committee.
> The Board of Directors' attention was also drawn to clauses 2.3 and 4.2 of the Appeal Committee's ToR whereby provisions have been made, inter-alia, for the temporary replacement of members of the committee following recusal of the latter which therefore supports the contention that the Appeal Committee, was for all intents and purposes, a committee to be composed of five (5) persons at all times.
2.3 covers specifically the situation where an AC member recuses themselves from a particular appeal because they are an author or co-author. (Conflict of Interest) and such recusal (and presumably replacement)would occur prior to the start of the AC processing said appeal. Moreover, it makes it clear that this is OPTIONAL for the board to do with the phrase “If the committee or the board believe it necessary…”.
4.2 again refers to a conflict of interest and talks of recusal by the committee member from a particular appeal, not resignation from the committee.
Neither of these clauses are applicable to AC members resigning from the committee outside of a conflict of interest.
What is applicable is sections 3.4.1 and section 3.3.4…
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 .
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.
As such, I respectfully request that the board stop playing games, read the actual ToR in their entirety and proceed according to the rules they set out in the ToR version 2 as adopted in 2017.
> It is in this respect that, on 18 February 2021, the Board of Directors, through its Chairperson, duly informed the remaining members of the Appeal Committee of the situation as well as advising the latter to await the reconstitution of the Appeal Committee before proceeding with any pending appeals.
And it is in this respect that the board through its chair erred and issued an improper order to the appeals committee in clear violation of both the letter and the spirit of the ToR as noted above.
I am shocked and appalled that a lawyer would give such a cursory and partial reading of the ToR and base advice to the board on same.
> The Board of Directors is aware of all the ensuing discussions on the matter and is also of the considered view that the Appeal Committee's ToR, as is, may need to be reviewed.
I’m perfectly willing to see the board revise the ToR through a proper open and transparent process and apply those new rules to a new appeal committee AFTER the current appeals are processed.
However, the board should stop interfering in the current appeals processes and allow the appeals committee to finish the in-progress appeals according to section 3.3.4 of the Terms of Reference.
> In the circumstances, the Board of Directors is presently considering the most appropriate option with the objective of ensuring the existence of an Appeal Committee (ad-hoc or otherwise) so as to deal with all pending appeals expeditiously.
There are currently no pending appeals to the best of my knowledge. There are two appeals that are in progress and the remaining members of the existing AC should be allowed to continue their work and finish them without further malfeasance by the board.
> The Board of Directors hereby informs the community that the reconstitution of a substantive Appeal Committee remains its top priority and will take all measures to do so within the shortest possible delay.
Again, all well and good, but completely and utterly inappropriate under the existing ToR which govern the current in progress appeals.
You can’t change the rules retroactively and you shouldn’t be making it up as you go along. Sometimes, the rules don’t cover a situation and you have no choice. This is not one of those times. The ToR are quite clear in section 3.3.4 that the intent is for the remaining members of the committee to continue to the conclusion of the in progress appeals unless it takes more than 6 months from the date the board decides to reconstitute the committee.
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