[rpd] Board Prerogatives on the PDP - AFPUB-2020-GEN-004-DRAFT02

[JORDI PALET MARTINEZ]

Hi Fernando,

 

Just a small clarification: The legal advice was sent to the list *after* the proposal already reached consensus and it was also updated in the impact analysis.

 

The problem is that it is plain wrong, no sense because it is taking the *wrong* starting point:
The CPM is owned by community, not the Board. The Board is just a way to “certify” the community decisions.
Example: RIPE – there is no such Board ratification.
I fully agree that if something decided by the community exposes a clear risk for the membership, then it should not be ratified, but it is not the case – on the other way around. This policy is just ensuring that the things are done in the right way, which as demonstrated, has not been the case up to now. The Board is taking attributions even *beyond* the bylaws which only allows then to do “urgent” policies related to *only* to Internet resources, not the PDP. This policy allows them to take attributions empowered by the membership not just in Internet resources, however they must get it endorsed by the community (which the bylaws already ask for, and they *never did*, at least not properly … the only proper way is the PDP).
 

All this comes from a *wrong* section 11 in the bylaws, as I exlained earlier that should have been never there. If you compare the bylaws with LACNIC or oher RIRs, it is clear that the Board only acts on policy matters *because the explicit mandate of the community* and this mandate in the PDP also allows them to act on urgent matters – so no contradiction with the bylaws (which of course are more dificult to correct): Never mind, we can “expand” the Board prerrogatives via the PDP, as this policy has done – but they understood it in the other way, because it looks like they understand that the community can be blatany ignored …

 

Regard,

Jordi

@jordipalet

 

 

 

El 26/7/21 0:03, "Fernando Frediani" <fhfrediani at gmail.com> escribió:

 

Hello

As far as I could watch there hasn't been any more explanation from the Board to the Community of the reasons for the ratification refusal other than "legal advise". Why hasn't been published this legal advise so far ?

Key question is: What is the real danger to AfriNic as RIR for the Board refusal to ratify or did they do this simply because they didn't like the wording of the proposal ?

Fernando

On 24/07/2021 01:57, Eddy Kayihura wrote:

Dear PDWG,

 

I have taken note of the concerns raised by Jordi with reference to the PDWG co-chairs Report on the Draft Policy Proposal "Board Prerogatives on the PDP" -AFPUB-2020-GEN-004-DRAFT02. 

 https://lists.afrinic.net/pipermail/rpd/2021/013531.html

 

I would like to share some thoughts with you all on the matter.



1.      AFRINIC staff produced an impact assessment report by staff on the concerned  policy. The impact assessment highlighted a conflict between the provisions of Sections 3.6 and 3.61 of the proposed policy and Section 3.5 of the CPM.    

 

https://afrinic.net/policy/proposals/2020-gen-004-d2#impact



2.      Following a legal assessment of the proposed texts regarding the above sections of the proposed policy,  the Board of Directors were further advised that their powers and prerogatives are  provided for in the bylaws, and by extension are governed by the Companies Act of the Republic of Mauritius.

https://lists.afrinic.net/pipermail/rpd/2020/012121.html

 

In my opinion the Board ratification requirement is not a “symbolic stamp” but rather a final checkpoint by those who have been entrusted by the resource members to steer the organization towards a sustainable future by adopting sound, ethical, and legal governance and financial management policies.

 

It is very unfortunate that we reached such a “dead-end”. However, I believe that where there is a will there's a way and we can collaborate to swiftly address the issue.

 

I would like to propose to the PDWG co-chairs to organise a meeting with all interested parties. The aim of this meeting would be to better explain the rationale behind the current issue and hopefully get to a point that would address all the related concerns.

 

We also currently have four proposals under discussion that aim at bringing changes to the AFRINIC Policy Development Process. 

 

I would like to commend the PDWG who put in voluntary work to author and discuss the proposals in a consensus-based spirit. 

 

We are confident that our PDWG will work together and bring forward improvements that will strengthen the foundation of the current Policy Development Process and address its challenges.

 

On a side note, I am sure the community has noticed that AFRINIC has not been communicating as swiftly as we normally do. I am aware that there are other threads where the PDWG expects feedback. All I can do at this point is apologise as we have faced multiple other threats that threaten the foundation of the entire bottom-up process system the PDP was founded upon. Please rest assured that more clarity will be shared with the community very soon (my hope is that we can share more over the course of next week). Till then I trust that the PDWG members willI continue to uphold the Code of Conduct while dealing with each other and  refrain from unnecessary belittling comments.

--

 

Kind Regards

 

Eddy Kayihura M.

Chief Executive Officer

AFRINIC Ltd.

====

t: +230 403 51 00  |  tt: @afrinic  |  https://www.afrinic.net  |  youtube.com/afrinicmedia

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