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

Wed Oct 13 08:07:50 UTC 2021

Hi Jordi,

The response to your inquiry on July 25th was delayed for known circumstances beyond my control and I would like to apologise for such delay. I would also like to thank you for your time  on 8 October 2021 during which we discussed the situation.

It is true that this current situation could have been avoided with more proactiveness from AFRINIC and we commit to speak up early enough next time we face a similar situation.

I got the sentiment that there might have been a misunderstanding in regard to the intent of the proposal ‘Board prerogatives on the PDP’ that you authored and the legal impact assessment.  I therefore propose that you have a meeting with the AFRINIC legal team facilitated by the Policy Liaison Team to hash out the issue to ensure the next submission flows better.

Thanks and Regards,
--

Eddy Kayihura M.
Chief Executive Officer
African Network Information Centre (AFRINIC) Ltd.
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Hi Eddy, all,

I’ve some observations and inputs. I expect detailed responses to each of those points.

AFRINIC published an updated version of the IA with the legal aspects much later than the consensus was reached. When the staff or the Board believe that there is any trouble with a policy proposal, the right thing to do, and what the community expects is that *ASAP*, during the discussion, it is clearly stated. This is something happening *very frequently*, it is like if you don't pay attention to part of your obligations until the last minute, which means that you’re “de facto” blocking the process.
It is the duty of the staff (including the legal counsel) and even the Board, in case of issues with any proposal, provide *specific* inputs or suggestions to address them on time, instead of waiting for the full process and then bringing back the policy to the list.
Despite that, I’ve provided a clear explanation *long time ago* about why there is no such conflict as depicted by the IA.
Where the PDP say that there must be a ToR created by the Board? Note that such ToR doesn’t exists in other RIRs, so clearly there is no need for that. The PDP *only* empowers the board to appoint the AC “the person may file an appeal with an Appeal Committee appointed by the AFRINIC Board of Directors”.
If the Board believes that a ToR is required, clearly it can suggest one to the community and bring it as a policy proposal. This can be done in several ways: the Board itself, one or several members of the Board, or if more neutrality is wished, asking the community to develop such a policy proposal.
What is is clear is that in NO CASE, the ToR can present a modification of the PDP without a policy proposal reaching consensus. Note for example that the ToR were doing so in many points. If you want, I can depict them in a different threat. That was clearly an illegal action of the Board against the PDP, because the PDP is “our law” and the Board is not empowered to modify it beyond what is stated in the bylaws.
It looks like the staff preparing the IA and the Board, have not completely read the policy proposal, because the policy proposal is NOT about the ToR, but it is using the ToR as an example of the problem. The proposal says clearly “Basically, the problem can be summarised as that the board and/or the committees do not have the right to behave against the PDP, even if it is only in a matter of interpretation, and consequently, they can only change the PDP thru the PDP itself, with an exceptional provision set by the AFRINIC bylaws:” and “It should be clarified that the examples on the previous section, are a concrete situation, but this proposal tries to avoid this problem being repeated in the future, by ensuring that the Board and Committees prerogatives are well delimited.”
Considering that, it is absolutely ridiculous to have in the IA this observation “Instead, and while the author seems to have no issue whatsoever with the existing provisions of Section 3.5, he is proposing to add new sections i.e. 3.6 and 3.6.1 that relate to the prerogatives of the Board of Directors. In light of the above, therefore, it may reasonably be viewed that the proposed policy is akin to an encroachment on the powers of the Board of Directors.” Which by the way is untrue because the Board powers over the PDP are *only* those that are attributed by the community. Remember that the community is on top of the membership and the Board is only a representation of the membership in Afrinic as an organization, but in NO WAY, the membership can *alter the PDP/CPM*, unless it is done by means of the PDP itself.
Where in the PDP or the bylaws, there is an authorization for the Board to not-ratify a proposal and return it to the list? Note that other RIRs have explicit text about that, but this is not the case in AFRINIC. Also, in RIPE, the Board doesn’t ratify the policies. Maybe we want to change that and once a policy reach consensus, should just be implemented? Again, remember that the resources are from the community, not AFRINIC, not any RIR, the power offered to the Board is provided by the community. It is wrong that the bylaws take the responsibility on that. It is a clear violation of the community soberanity. In fact this proposal is *resolving that*, so the proposal is playing in the side of the Board to correct something that has been wrong for a long time: “In exceptional situations, duly justified, the Board may define temporary procedures or policy changes, which will only be valid maximum until the next PPM, as they must be immediately introduced as a draft policy proposal. Attending to the exceptionality, the “Varying the Process” section will be used in order to try to speed up the consensus.”
Note that the bylaws (11.4) *only* allow the Board to “adopt such policies regarding the management of internet number resources where it considers that the same is necessary and urgent, having regard to the proper and responsible usage of these resources.”. Can you please point me how a modification of the PDP (as the ToR), is a necessary and urgent matter regarding the usar of the resources? So, the bylaws only allow the Board to, for example, put in place an urgent policy for transfers and then subject it to the endorsement of the community.
Also, the bylaws 11.5 clearly indicate that such urgently adopted policy by the Board shall be submitted to the community endorsement. Remember that the PDP has a very clear process for such endorsement (Draft Policy Proposal reaching consensus and passing the last call). Can you please let me know when the ToR were approved by following the PDP to obtain such community endorsement? Note again that I’m using the ToR as an example, it is clearly not the goal of this proposal *at all*. We can find other examples if you want, but this one is very convenient because the Board *again* has violated the bylaws and the PDP by not following what is stated in 11.4 and 11.5.

Note that the flow that it is expected if this proposal is ratified will be resolving all the problems, so again, playing in your side *not against*:

You ratify the policy.
It doesn’t require any “implementation time”.
The policy is empowering then the Board to, if needed, define a new ToR, I expect that in consultancy with the community, but in case of extreme emergency, you can just do whatever you believe is the best and then the ToR are “in place”. Note that bylaws 11.4 *doesn't allow you to do so* (because it is not about resources), but the community is, by means of this policy, enhancing your prerogatives. So, you aren’t anymore violating the PDP. If your legal counsel is telling you that it should be “improved in the bylaws”, then it is up to you as well, but I don’t think is needed, because the community is giving you the mandate.
However, now you, need to submit that as a policy proposal (the Board or ask someone from the community, etc.), and that will provide you the endorsement as required by 11.5 of the bylaws.
So yes, the “temporary provisions” in the previous version of the proposal was good to have, but the community didn’t like it, however, as you can see in this work-flow, you don’t need it, because you can at the same time as the ratification make a temporary provision yourself: *THE PROPOSAL IS GIVING YOU AN EXPLICIT AUTHORIZATION FOR THAT, WHICH YOU DON’T HAVE RIGHT NOW ACCORDING TO THE BYLAWS*. That’s why I accepted the suggestion of the co-chairs to remove it, because it was not any issue.

As more as I read the IA, more I see that someone (staff, Board), was missing all this. I don’t think it was my fault to write down that flow, because I did in the meeting and thru many emails.

If you don’t agree with this rationale, can you please explain *exactly what is wrong* ?

Further to that, in the email from the legal counsel that you cited, he mentions article 3.4 and 15 of the bylaws, which I’ve read again many times before writing this. Can you explain what is the relation of this proposal with that in the sense that the legal counsel believes it is an encroachment? As I just explained, is in the other way around, is ensuring that the text of the bylaws is enhanced by the explicit support of the community by the PDP.

Also the legal counsel seems to be mixing community (the responsible of the PDP/CPM) and membership, because is suggesting to modify the bylaws by the membership instead of the community … No, wrong. You don’t need to change the bylaws. It will be nice, probably, but the community doesn’t care. Remember, again, that the responsibility of the PDP/CPM is from the community. NEVER MIND what the bylaws say about that, the community don’t care. You can have a broken bylaws, but you can’t empower yourself *ignoring* the community, to take over the PDP and alter it in any way.

And finally, fortunatelly the legal counsel is clear that his legal advise is non-binging.

If you believe that the Board can take over the PDP/CPM and community responsabilities, when they have not been authorized by the PDP, because the bylaws say that, you are saying that AFRINIC can take over the community, which is plain wrong, and then we will need to scalate to ICANN and even courts. I will much prefer we don’t go that way.

I think it is evident that I’ve been untiringly trusting and helping as much as I could all the RIRs and overall Internet community since day one, but recent events such this one, look like filling the last drop of water in the already full glass, as I already said a few days ago. Please probe me that I’m wrong and the community can still work together with AFRINIC, instead of looking for our own alternative way. What I’m not going to do is to go against my personal principles, because before any organization (AFRINIC in this case), for me, the *community* is first. I will hate to turn all my efforts againt any RIR that is not respecting the community, but no doubt I will do if it is the case and I can work very very very hard in the direction of what I believe is the right thing to do for the community, believe me.

I sincerely hope to heard soon about all those points, and the Board to reconsider his position and the ratification of this policy so we can resolve this matter extremely urgently. It is extremly timely considering that the community is not approving your new ToR, so we don’t need to create a new “AC impass” if we can all work together, instead of having a Board that keeps being disrespecful with the community.

Regards,

Jordi

@jordipalet
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