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[rpd] Board Prerogatives on the PDP - AFPUB-2020-GEN-004-DRAFT02
owen at delong.com
Tue Jul 27 01:36:34 UTC 2021
> On Jul 25, 2021, at 04:33 , Lamiaa Chnayti <lamiaachnayti at gmail.com> wrote:
> Dear Eddy,
> The Policy Development Process does not leave room to personal interpretations and singular opinions. The bylaws and the CPM exist for a reason, don’t they?
> The fact is, the board’s approval of policies that have reached consensus is an integral step of the PDP, and nothing more. The Bylaws do not expand the board’s power in judging or conducting a “final checkpoint” on community made decisions.
> Please refer to the CPM 3.4.4: “Approval”
Speaking only as myself and certainly not representing the position of any of my clients…
IMHO, the approval by the board is required (the board must approve) with few exceptions. Those exceptions are:
+ A fiduciary risk to the organization (Board cannot violate their fiduciary duties under the law by approving
a policy that would amount to violating those responsibilities if passed as a board motion)
+ A good faith belief that the PDP was not followed and that the consensus declaration is therefore flawed.
I am not aware of any other circumstances in which the board may withhold its ratification of a proposal submitted
by the PDGW co-chairs for ratification.
> The Working Group Chair(s) shall recommend the draft policy to the AFRINIC Board of Directors for approval if it has the consensus of the Policy Development Working Group. The recommendation shall include a report of the discussions of the draft policy and feedback from the Last Call. The draft policy shall be ratified by the AFRINIC Board of Directors.
Ratify means to sign or give consent. Inherent in that is the assumption that there are at least some circumstances
where the board may not choose to consent. The statement “shall be ratified” does not create an inherent need
for the board to rubber stamp anything submitted to it, but it does create a strong presumption that they will
ratify anything for which they do not have strong and valid reasoning to reject such ratification.
> Moreover, AFRINIC’s decision of not ratifying a policy that has been approved by the community is far from representing the ethical governance that the organization aspires to have. It is rather a clear violation of the community’s wishes that no RIR has ever committed.
IMHO, in this particular case, the board has provided good and valid fiduciary reasons on which to base
the refusal to ratify this policy.
> As defined in the ICP-2, Afrinic must operate according to a Bottom-up self-governance structure for setting local policies, and which explicitly states that :
> “Policies are developed by the community through the PDP that is also developed by the same community. AFRINIC implements what the community has proposed, discussed and attained consensus on.”
ICP-2 governs the creation and acceptance of new RIRs into the RIR system. It has no material bearing on the RIR once it has been accepted into the RIR system, so quoting it here is not particularly meaningful.
> To sum up, the only unfortunate thing in this (easily avoidable) situation, is Afrinic’s violation of an entire clear and defined process that is the backbone of the RIR itself. What is even the point of recognizing the “voluntary work to author and discuss the proposals in a consensus-based spirit” if there will be no consideration of the bottom-up process?
I think one must consider what is and is not ratified before making such accusations. In this case, the board
provided a clear and sound reason not to ratify on fiduciary risk grounds. If the supporters of this policy really
wish to enforce it upon the board, it can easily be accomplished by inserting similar text defining the same
restrictions into the bylaws through a vote of the members on an appropriate motion at an AGMM or SGMM.
I would suggest that pursuing such a motion would be far more productive than grousing about inaccurate
claims about violation of process here.
Governing the board’s conduct is a matter for the organizations constitution (bylaws) and not for the CPM.
The proposal in question was proffered in the wrong forum and appropriately rejected. The clear and obvious
solution is to proffer it in modified form in the correct forum where the board cannot legitimately reject it.
OTOH, if you want to argue about their failure to ratify the resource transfer policy, then you would have a
valid case as their refusal in that case has no legitimate basis and they have not offered any basis for it.
> On Sat, 24 Jul 2021 at 05:58, Eddy Kayihura <eddy at afrinic.net <mailto:eddy at afrinic.net>> 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 <https://lists.afrinic.net/pipermail/rpd/2021/013531.html>
> I would like to share some thoughts with you all on the matter.
> 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 <https://afrinic.net/policy/proposals/2020-gen-004-d2#impact>
> 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 <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 <https://www.afrinic.net/> | youtube.com/afrinicmedia <http://youtube.com/afrinicmedia>
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