[rpd] A question for the PDWG

[Owen DeLong]

> On May 24, 2022, at 06:29, Dewole Ajao via RPD <rpd at afrinic.net> wrote:
> 
> Just trying to take a look at the "letter of the law" since we have an interesting proposal to sue the AFRINIC board of directors regarding the process of getting our co-chairs.
> 
> I can't find any mention of the "Policy Development Working Group" in the bylaws. Following a reference to the "Policy Development Process" however, one is taken to the Consolidated Policy Manual https://www.afrinic.net/cpm-1-3?view=article&id=1606&lang=en#PDP <https://www.afrinic.net/cpm-1-3?view=article&id=1606&lang=en#PDP> of which the PDP and PDWG are subsets.
> 
> We encounter the PDWG in Section 3.3 of the Consolidated Policy Manual (CPM) and indeed it states that
> - *Anyone may participate...*
> - *Two chairs are *chosen*
> 
> Section 3.4 also states that
> - *Anyone may submit a proposal*
> 
> Going by this, we can infer that the group (which is made up of any interested persons) will select its co-chairs using any mechanism that is based on openness, fairness and transparency - See sections 3.2.1, 3.2.2, and 3.2.3. I do not see any requirement for election; not even for a show of hands. 
> 
> Moving on to Section 15 of the bylaws (Powers of Directors) for a moment, it appears to me that the directors have the duty to *determine the guidelines for the allocation of address space to members...*.
> 
> 15.3) Without prejudice to the generality of Articles 15.1 and 15.2 above, the Directors shall be entitled to:
> determine the guidelines for the allocation of address space to members in line with the member-driven Policy Development Process;           
> 

There are limitations on that determination, however, in the their determiniations must be in line with the member-driven PDP.

Personally, I would amend that to read “community-driven” as I think that better reflects intent and reality.

> From the above and simple English language, one could infer (without prejudice to the rights of any interested person to participate), that only *members* have the duty to "drive the Policy Development Process".
> Note: members in the context of the bylaws refers to Resource members, Registered members, and Associate members.

Actually, the bylaws are very poorly written in this regard… There are many places where the term “member(s)” is used ambiguously and from context clearly refers to some particular subset of “Resource”, “Registered”, and/or “Associate” members. Given the title of section 15, it is very likely that legal construction of 15.3 in that context would refer only to Registered Members, though I think that the clear intent is all members.

> 
> One could then translate this to mean that 
> 1. anyone can propose draft policies with the goal of making them policies and have them debated/improved/discarded/accepted
> 2. anyone can contribute to policy proposals that have been received by the group
> 3. since anyone can propose/contribute text, it is the responsibility of resource members to ensure that the PDP produces fair policies via a process that is open and transparent
> 4. since the company must abide by the laws of the land, and operate in line with the objects of the company, it is the responsibility of the Directors to ratify the resulting member-driven policies for implementation. 

While the directors have a duty to ratify policy proposals, there are limits on what they can ratify. To ratify a proposal, the directors must:
	+	Have a good faith belief that the proposal legitimately gained consensus through the PDP
	+	Hare a good faith belief that the PDP was properly conducted
	+	Have a good faith belief that ratifying the proposal would not violate their fiduciary duties to the orginaziation.


> So that it does not remain a matter that is open to translation as I have done above, is anyone willing to contribute very simple policy text that puts the process of selecting PDWG leadership in the hands of resource members?

> Maybe that could put an end to room-stacking and other PDP hijacking fears and get us back to the business of serious policy development? 

An interesting theory to be sure. I have little confidence that it would achieve its stated goal and I think limiting the co-chair selection to resource members is a step in the wrong direction. The vast majority of resource members don’t actually participate in the PDWG. Many active and useful participants in the process are not resource members.

Owen

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