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

Tue Nov 16 09:36:29 UTC 2021

Hi Paul,

I think you are assuming that the proposal will resolve all the organization problems, issues with the bylaws, Board, etc. and this is not the case.

We should make clear that the PDP is a very special process, based in roght consensus and this is turn based in the rought consensus definition in the IETF. That’s a basic principle of the RIRs and not accepting that will mean we need to change the complete RIR system.

The proposal is just including a short definition of consensus because I assume that the majority of the community is not really following IETF and even less having read and understood (which can’t happen if you don’t participate in IETF or other RIRs) the RFC7282.

Consensus can only be judged if we have good chairs to do that job. And because they are human they can fail, and that’s why we need an appeal process and even a recall process. So yes, it is not perfect, but there are way outs if something fails.

Consensus is slower than voting, but it is much more coherent and neutral. Consensus avoids manipulation by calling to tons of friends to support a vote. If we didn’t have consensus, the IETF standards, RIR policies, and so on will be terribly manipulated by the bigger stackeholders and the community will have nothing to do.

Regarding the chances of not reaching consensus, they are always there, but if there is no real need for a policy that’s not a problem. The board being able to make an urgent proposal is not to resolve that, it is to resolve really urgent and neccesary situation and this is already in the bylaws (in this RIR, not in all the others) and this part of the text just want to make sure that the community agree with that. Note the previous discussion that the AFRINIC bylaws are terribly written, so they should be fixed, but at the same time, if we agree that in case of emergency, there must be a wayout, we shall make explicit in the PDP that case.

Note that in other RIRs the bylaws say “nothing” about the PDP and is only the PDP itself the one that “ask” the organization (by means of the Board) to ratify and implement policies, to call for chair elections, lookup for urgent policies if needed, etc., etc. This is the way it should be. Complete separation of powers: a) Community and b) Organization/membership. Then this stupid fights about if we are encroaching the Board or not, will vanish – that’s why we don’t have such ridiculous fights in other RIRs!

Regards,

Jordi

@jordipalet

El 15/11/21 13:27, "Paul Hjul" <hjul.paul at gmail.com> escribió:

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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