Dear Community,
On April 23rd and 24th 2022, the GovCom had a 2-day face-to-face working
session for the purposes of the assignment in reference to the Board's
resolution 202202.677, whereby, the GovCom met as a result of a board's request
where it had been mandated to undertake a Bylaws' amendment exercise and
recommend workable solutions by the end of April 2022 in order to address the
situation caused by casual vacancies at the level of the Board.
In the spirit of transparency and good governance mechanisms, GovCom feels
compelled to share with the AFRINIC Members and Community at large, the
observations and recommendations GovCom made to the Board of AFRINIC after the
legal team was solicited on specific issues only and on as a "when and
required" basis discussions on the matters at hand.
For the sake of clarity and ease of reference, the relevant sections of the
2007, 2016, and 2020 AFRINIC By-Laws are repeated below:
By-laws 2007:
11.4 For the avoidance of doubt, the sequential election of Elected Directors
prevailing at the date of adoption of this Constitution shall be continued so
that, on the expiry of the respective terms of office of Elected Directors, the
Directors shall be elected in the following sequence:
(i) Election for Directors representing Northern Africa and Western Africa;
(ii) Election for Directors representing the Indian Ocean and Central Africa;
and
(iii) Election for Directors representing Southern Africa and Eastern Africa.
11.5 The Primary Directors and the Alternate Directors shall be elected by
Members on the date of each Annual General Meeting every three years. For the
avoidance of doubt, the election of Directors shall not be considered as being
part of the annual General Meeting but the proceedings of such election shall,
subject to Article 10.15 above, be the same as for a General Meeting.
11.7 In the case where there is no eligible candidate for a particular region,
the Director already in office in the particular seat shall be deemed to have
been elected for one further term.
11.12 The Directors shall have power at any time and from time to time to
appoint any person to be a Director to fill a casual vacancy in the Board. Any
Director so appointed shall hold office only until the next following Annual
General Meeting at which Directors are elected and shall then be eligible for
re-election.
By-Laws 2016:
13.5 Each of the following six sub-regions of Africa shall be represented by
one Director as indicated below:
(i) Northern Africa (seat 1);
(ii) Western Africa (seat 2);
(iii) Indian Ocean (seat 3);
(iv) Central Africa (seat 4);
(v) Southern Africa (seat 5); and
(vi) Eastern Africa (seat 6).
Each Director elected under Articles 13.4(i) and 13.4(ii) of this Constitution
shall hold office for a term of three years, which term of office shall expire
on the date of the Annual General Members' Meeting held on or around the third
anniversary of the date of appointment of such Elected Director. Subject to
Article 13.6, such Director shall be eligible for re-election on the expiry of
his term of office.
13.6 For the avoidance of doubt, the sequential election of Directors elected
under Article 13.4 (i) of this Constitution, prevailing at the date of adoption
of this Constitution shall be continued so that, on the expiry of the
respective terms of office of Directors, they shall be elected in the following
sequence:
(i) Election for Directors representing Northern Africa and Western Africa;
(ii) Election for Directors representing the Indian Ocean and Central Africa;
and
(iii) Election for Directors representing Southern Africa and Eastern Africa.
13.14 The Directors shall have power at any time and from time to time to
appoint any person to be a Director to fill a casual vacancy in the Board. Any
Director so appointed shall hold office only until the next following Annual
General Members' Meeting at which Directors are elected and shall then be
eligible for re-election.
By-Laws 2020:
13.6) For the avoidance of doubt, the sequential election of Directors elected
under Article 13.4(i) of this Constitution, prevailing at the date of adoption
of this Constitution shall be continued so that, on the expiry of the
respective terms of office of Directors, they shall be elected in the following
sequence:
The election for Directors representing Northern Africa and Western Africa;
The election for Directors representing the Indian Ocean and Central
Africa; and
The election for Directors representing Southern Africa and Eastern Africa.
13.7) Election mechanism
Except for the Chief Executive Officer, and subject to Articles 13.10 and
13.11, all other Directors shall be elected by Resource and Registered Members
on the date of each Annual General Members’ Meeting.
Six directors representing each of the regions listed in Article 13.5 shall be
elected according to Article 13.6.
Two Region-Independent Directors representing seats 7 (seven) and 8 (eight)
shall be elected during the same elections as for Northern and Western (seats 2
and 1) and the Indian Ocean and Central (seats 3 and 4) and shall hold office
according to the terms of Article 13.10 of the Constitution.
The NomCom shall, in terms of the existing election process, take all the
relevant actions for the participation of these nominees in the election of
directors.
13.14) Notwithstanding the other provisions but subject to the provisions of
article 13.10 of the bylaws, the Board shall, where it considers that it may
not be reasonable to wait for the next Annual General Members’ Meeting to fill
a casual vacancy that has arisen pursuant to article 14.1(ii), (iii) or (iv)
below, have power at any time and from time to time to appoint any person to be
a Director to fill a casual vacancy in the Board. Any Director so appointed
shall hold office only until the next following Annual General Members’ Meeting
at which Directors are elected and shall then be eligible for re-election.
[Amended at the 2020 AGMM]
The Situation at Hand
There is a potential situation in which more than 3 Seats would have come up
for election in the coming Annual General Members Meeting of 2022 (AGMM 2022)
and perpetually breaking the election sequence in Seats for the regions as
specified in the Articles 13.6 and 13.7.
Whereas the Board acted in its respective capacity, to ensure that the Seat for
Director to East Africa Region (Seat 6) was filled in September 2020. However,
instead of filling the seat via a casual vacancy, it conducted elections for
that seat prematurely, causing a situation in which the Director would have
completed the full tenure prior to the election sequence as per Articles 13.6
and 13.7 of the Bylaws.
The GovCom deemed it fit that a By-Law amendment exercise may not be a solution
to the current challenges based on the observations below
1. GovCom requested and reviewed all the past 3 By-laws and especially
regarding the sections on the Filling of Casual Vacancy and the ensuing conduct
of elections to the Board of AFRINIC as a result of it. GovCom is of the view
that the explicit provision in the By-Laws regarding the filling of a Casual
Vacancy cannot be used in the conducting of elections, nor can the explicit
provisions in the By-Laws regarding the conducting of elections be used in
filling a Casual Vacancy on the Board. And that when interpreting the By-Laws
it must be in full taking into account all the relevant provisions and not
simply a part of it.
2. GovCom is of the view that in all 3 By-Laws, provisions were made to ensure
the Board at any time and from time to time fills in a causal vacancy should
the need arise, and yet none of the 3 By-Laws provided alternative election
mechanisms for the ensuing conduct of elections after a casual vacancy has been
filled. And as such GovCom is of the view that the only elections mechanisms
that be used to conduct elections either post causal vacancy and/or at any
other time are those specified in Article 13.6 and Article 13.7 of the 2020
By-Laws.
3. GovCom found it totally unnecessary and irrelevant to go through a By-Law
amendment exercise of Article 13.14 just to arrive at using the same election
mechanisms in Articles 13.6 and 13.7 for the conduct of elections when no other
alternative election mechanisms were ever in place.
4. The By-laws do not empower the Nomination Committee, Election Committee, and
also the AFRINIC Board to vary the mandated 3-Year tenure of an elected
Director or vary the sequence in which Directors of the 6 Regions and 2
Non-Regions are elected.
Challenges and Risks
The GovCom articulated that the following challenges are currently being
experienced in the organization with reference to the election process and the
filling of casual vacancies. These challenges may at a later stage impact the
governance of the organization. These are:-
1. Misinterpretation of Article 13.14 in relation to when the next AGMM of
the respective seats are to be filled
2. Organization Instability when the Board can’t raise quorum due to when
many seats are open for elections
3. Giving an elected Director a tenure less than the 3-years mandated by
the By-Laws
4. Breaking of sequence in Articles 13.6 and 13.7
Recommendations to the AFRINIC Board
Whereas the GovCom is conversant of all the above challenges that reference
Article 13.14.
GovCom made the following recommendations to the AFRINIC Board that:
1. A maximum of only three (3) seats should be opened for election at any
respective AGMM as per the following:
1. Presently, elections for Board Seats #1, #2 and #7 will be held in the
year 2022;
2. For the purposes of elections of Board Seats #3, #4 and #8, same to be
held in the year 2023;
3. For the purposes of elections of Board Seats #5 and #6, the same is to
be held in the year 2024;
2. In an event that a casual vacancy must be filled, the Board should fill
the said vacancy till the end of the previous candidate’s mandate, i.e. when
the next AGMM of the respective seat comes up for election per Article 13.6 and
Article 13.7 of the 2020 By-Laws.
3. Board Seat #4 is vacant and should be filled with casual vacancy up to
AGMM 2023
4. Board Seat #5 be extended to AGMM 2024 to ensure the stability of the
sequence as per Articles 13.6 and 13.7 of the 2020 By-Laws.
5. Furthermore in regard to Seat #6 - the Board should find an appropriate
mechanism to ensure that the Seat does not become vacant after the AGMM in 2023.
6. Amendment of the process of filling the casual vacancy by including the
community involvement in form of comments then the Board will make an informed
decision from the comments.
General recommendations from Committees
GovCom notes that most of the recommendations are to be effected in the coming
year or two years. Since the GovCom receives requests from the Board, the CEO,
and the community, it is difficult to track the status of the implementation of
these recommendations and the Board’s resolutions;
· Therefore, the GovCom recommends that a Board resolution tracking system be
implemented
GovCom's report should not be confused with a minutes of the GovCom meeting
which is required to be published as required.
GovCom considers the recommendations made to the AFRINIC Board as final and yet
would welcome comments from the AFRINIC Members and Community at large.
Regards,
Daniel K. Nanghaka
Chair – GovCom
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