[rpd] New Version of Policy Proposal - Update of PDP (Draft-2) - AFPUB-2021-GEN-002-DRAFT02

[Paul Hjul]

Good Morning Co-Chairs and Everybody

I've been giving quite a bit of thought to this proposal and whether it is
a silly plastering over that will cause more problems than it solves.
Undoubtedly the hypocritical and vexatious approach towards Owen Long over
the weekend is in mind right now but the broader history of things -
including issues which I am sure give rise to the proposal spurs in writing
this email. I have great sympathy for Eddie and earnestly believe he is
earnestly doing everything he can to steady the ship but the Board must be
as Caesar's wife. Moreover there is a history of inaction as against
members who engage in blatant tribalism on this mailing list and it is
quite clear that they far more than disgruntled participants or commercial
actors have broken the needed sense of good faith within the organization.

I may raise my thoughts during the discussion on the policy proposal in the
meeting but I suspect something written makes sense.
My thinking has settled onto being supportive of this amendment but very
reservedly so. This reservation is because thinking that this policy will
fix the underlying problems is misguided. The policy will at most make it
possible to work towards fixing the problems.

I think the changes proposed are beneficial but I feel it is pertinent to
point out some pitfalls that will continue to exist around the issue of
"rough consensus" and the role of the Board and Staff of Afrinic.

The centerpiece of "rough consensus" is that you have people who may
disagree on something or the minutia but respect that the process has
afforded them an opportunity to reach consensus. This presupposes good
faith. If a group of people want to meet for lunch achieving unanimity on
where to go is silly and you want a rough consensus of any given
restaurant, the person who would like to go to an Italian style
restaurant will be happy to go to a restaurant that isn't Italian if she
can order lasagne. If she is irrational or seeking to get her way for the
sake of it the discussion will quickly become terse and in the end nobody
will want to have lunch together.   Cordiality, good faith and integrity
cant be legislated into existence. What legislation and processes can do is
to penalize or set aside decisions taken without those things - we can
punish people for acting in bad faith, we can't force them to work in good
faith. The problem I have with the introduction of the definition is that
it seems to align with the idea that its an understanding problem rather
than the fact that good faith once broken is difficult to repair. I
envisage a situation in which continued ugliness results in continued
gamemanship and continued broken processes.

Secondly I am concerned that the claiming that the community is responsible
for policy doesn't translate from this document into a situation in which
the PDP process and participating community really accept and take
ownership of the policy process. This if not guarded against will see a
situation in which community dysfunction translates into an excuse to keep
things broken and to break them further. One way this can happen is if the
ordinary process is intentionally obstructed so no rough consensus is
reached, the board then adopts a temporary measure which lapses at the next
meeting because no consensus is reached and a new emergency patch that is
slightly different is applied.

The Board already has the power to make emergency executive temporary
policy. I am in favour of the assertion that "The community is the only one
responsible for the Policy Development, by means of the PDP". If the Board
exercises this power then the relief arising would be to challenge the
Board's decision in the Mauritius court's, it is the later point I am
concerned about. Moreover it is the fact that there isn't a clear operating
culture and related guardrail against the Board doing so in full knowledge
that a measure will not be approved and that a further exercise will be
needed. There has been a disquieting amount of slanderous and
contemptuous discourse around the Mauritius courts on this list (none of
which I believe was actioned upon as violating the code of conduct I might
add) but the problem isn't at the courts or with the principle that Afrinic
as an organization is a members organization and is not a government or
regulator or the like. Instead it is quite clear that the organization's
management of legal issues has been horrendously wrong footed. Two things
are needed: (a) the Board needs to understand that the relationship between
Afrinic and members is governed by law and agreement and not dictated by
the Board and that the Board must at all times adhere to the principles of
natural justice, must behave rationally and without improper ulterior
purpose etc ... when dealing with members; (b) a dispute resolution clause
providing for mediation and arbitration by members is needed - ideally this
should also be able to review alleged infringements of (a) and alleviate
the risks of things landing in court.

However, (for all the protestations of a new leaf and improvements in
governance - and the magnitude of offence that is taken when it is said
that Afrinic still has endemic corruption and governance problems) I am not
aware of the Board having filled the vacancy arising from the resignation
of Mark Elkins. The organizations by-laws are clear as to filling vacancies
("13.1 -  the Board shall call a meeting of members to appoint the
Directors of the company where vacancies occur as a result of ...
resignation of any Director in terms of Article 14 of this Constitution")
and this is mandated not discretionary (shall not may) and while I am not
in favour of the regional seat system in place the fact of the matter is
that there is not a single SACU associated person and with the regional
representation system running this means that South Africa. I don't
understand why an election for the vacancy isn't being held this week - of
course it is now too late to call for it but there is no reason not to hold
an election before 2022. There is equally no reason why the Board cannot
instruct their legal representatives to offer to refer the various disputes
to arbitration. The overall picture to me is clear that there continues to
be a mindset within the organization of thinking of Afrinic as though it is
a sovereign state.

'With this in mind I fear that the approval or return process included
carries a very real risk that the Board is going to refuse to approve a
policy on an irrational (or otherwise legally challengeable) basis and the
matter will be taken by a deep pocketed member or other interested party.
Make no mistake about it, when commercial interests are high the benefits
in fruitless expenditure on hopeless protracted litigation, pretending that
the organization is a superpower isn't going to end well for anybody.

I am not proposing that the policy proposal be amended because there are no
language changes which would alleviate what is a governance problem.
What I do propose however is two fold: (1) that this policy amendment be
followed up with scrutiny on the Board as to how it exercises the
responsibility to approve or return policy proposals; (2) that an earnest
and properly facilitated engagement occur around the Constitution, bylaws
and RSA of the organization with a view to getting to a position in which
the global community develops policy, the staff of Afrinic facilitate the
execution of the policy and act as an honest broker.

Paul
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