[rpd] [Community-Discuss] Call for AFRINIC’s registry service migration to other RIRs

[Owen DeLong]

> On Aug 3, 2021, at 23:51 , JORDI PALET MARTINEZ via RPD <rpd at afrinic.net> wrote:

> 

> So … what we are basically concluding here is that the *creation* of AFRINIC was against the terms stated in ICP-2.


I’m saying I am uncertain, but it appears that there might be a case to be made there.
 

> That invalidates totally the AFRINIC mandate, which is really bad.


Agreed.
 

> You’re probably right that it will be dificult for the community to enforce that in a long civil proccess, however may be the other RIRs and ICANN have something to say. It was a clear mistake and should be corrected.


I’m not sure of that. Based on the documents I could find, it appears that at accreditation, AFRINIC had no constitution and that the first constitution did not provide a bottom-up community driven PDP, as required by ICP-2.
 

> Ideally the Board should ask the membership if they want to correct that, that’s *one choice* to resolve the problem.


I’m honestly not particularly worried about correcting this particular anomaly at this stage… I just found it to be a historical curiosity as I ran across it when Fernando triggered my researching the history of the AFRINIC bylaw revisions.
 

> In any case I still believe that the legal counsel is wrong because what the proposal is doing is actually *accepting explicitly* what the bylaws already have and this the *seconds choice*.


There’s no need or validity to policy formally accepting what the bylaws say. The bylaws are the supreme internal governing document of the corporation, subservient only to the companies act and other actual laws. Like it or not, the corporation is run based on the bylaws and any powers granted to policy or to the community to govern policy flow from those bylaws and/or from board action within the constraints of those bylaws.
 

> The Board will avoid an unnecesary modification of the bylaws, but the community has expressed their willigness to accept that.


The board alone does not get to modify or choose not to modify the bylaws. They are under the control of the resource and registered members of the company. (Yes, the registered members part of that is the board, but there are many many more resource members and each member, regardless of type gets exactly 1 vote).
 

> I can’t see how that can be understood, by any means, as enchroaching them.


Because even if it is accepting the current text, it cannot override the ability to amend the text if the members choose to do so.
 

> So for example, you have a rule in your company that enforces to save energy. And the shareholders and the employees get together and write a rule for that as well, consistent with your own rule. You can say it is redundant in this example, but in the case of the AFRINIC proposal, even if it may seen as redundant it is a matter of correcting something that is missing, because the managemente of the PDP belongs to the Community, not the membership.


If you want to change that, you need to make the change in the bylaws, not in the PDP.
 

> The bylaws aren’t providing the power to the communidy to develop the PDP, the policies, etc., because it is already the community duty, not the board one.


Not so far as the governance of the organization is concerned. The only way that it can be so delegated is if it is done either by board action within the framework of the bylaws as written, or, by being enshrined in the bylaws, themselves.

Owen


>  

> Regards,

> Jordi

> 

> @jordipalet

> 

>  

> 

>  

>  

> El 4/8/21 2:38, "Owen DeLong" <owen at delong.com <mailto:owen at delong.com>> escribió:

>  

>  

> 

> 

>> On Aug 1, 2021, at 23:47 , JORDI PALET MARTINEZ via RPD <rpd at afrinic.net <mailto:rpd at afrinic.net>> wrote:

>>  

>> I’ve discussed *many* times that this right should be provided by the community and never by the bylaws, but *right now* is in the bylaws, we like it or not.

>  

> Indeed, it is the bylaw change of 2012 that even granted the community any control over policy at all.

>  

> The current version and links to all previous versions (2007, 2012, 2016) are available here:

> https://afrinic.net/bylaws <https://afrinic.net/bylaws>

>  

> If one reads the 2007 version, you will see that the policy process is granted entirely to the board without any structured process for the community. Thus, it is interesting that AFRINIC was somehow able to pass muster for ICP-2 in April, 2005. I have to wonder where the pre-2005 bylaws are and what policy development process existed at that time given the text in the 2007 bylaws and the changes implemented in the 2012 bylaws which basically created the PDWG and the PDP.

>  

>> The policy that the board didn’t want to ratify and I’m still waiting for a response to my email, was resolving that.

>  

> I think you’ve probably gotten about all the response you will get. Their legal advisor told them it was out of scope for the PDP and overreached policy into bylaw territory (paraphrased).

>  

> Personally, I think he was correct (a rarity).

>  

> If you want to make most of the changes proposed in that policy proposal, you should resubmit them as a motion to a members meeting and amend the bylaws accordingly.

>  

> That will have the effect you want, and short of refusing to put it on the agenda of an AGMM, the board cannot avoid implementation if you are able to get an affirmative vote to pass the motion.

>  

> 

>> The community already decided that they *want that* when this policy reached consensus.

>  

> But it’s a bylaw matter, not a policy matter, so it isn’t the community that gets to decide. It needs to amend the bylaws and those are clearly under the control of the membership. I you really think this is a good idea, then submit a motion to amend the bylaws.

>  

>> The Board has the tool on his hands if they want to reconsider the ratification!

>  

> They really don’t. The board does not have the power to amend the bylaws and contrary to what is often stated on this list, in a contest between the CPM and the bylaws in terms of which document staff and management must follow, the bylaws are the clear winner because the legal consequences of violating the CPM are most likely limited to civil damages while violating the corporate constitution can result in criminal and civil liability (as I understand it in most jurisdictions, IANAL, MU may be different).

>  

> Owen

>  

> 

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