AFPUB-2020-GEN-007-DRAFT01 - Co-Chair Recall (Draft-1) Expired - AFRINIC

AFPUB-2020-GEN-007-DRAFT01: Co-Chair Recall (Draft-1) Expired

Proposal Details
Proposal Name	Co-Chair Recall (Draft-1) Expired
ID	AFPUB-2020-GEN-007-DRAFT01	Date Submitted	2020-12-07
Author(s)	Refer to Proposal Tab	Status	Archived

1. Summary of the problem being addressed by this proposal

The current CPM does not have a full mechanism in place to complete a recall process. A Recall is a method of election in which voters can oust elected officials before their official terms have ended. The current process is ambiguous and does not ensure that PDWG Chair(s) will not be arbitrarily distracted, it also does not also spell out the process of recall after the board might have agreed to the recall, The current process does not also spell out the recall process because a recall cannot take place without a vote from the community that elected the chairs in the first place. Therefore, the process outlined in this document would help with the entire recall process.

2. Summary of how this proposal addresses the problem

The proposal addresses the problem by defining clear and explicit procedures and guidelines for co-chair recall.

3. Proposal

Amending section 3.5 of the CPM, as follows:

Current	Proposed
3.5 Conflict Resolution 1. A person who disagrees with the actions taken by the Chair(s) shall discuss the matter with the PDWG Chair(s) or with the PDWG. If the disagreement cannot be resolved in this way, the person may file an appeal with an Appeal Committee appointed by the AFRINIC Board of Directors. An appeal can only be filed if it is supported by three (3) persons from the Working Group who have participated in the discussions. 1. The appeal must be submitted within two weeks of the public knowledge of the decision. The Appeal Committee shall issue a report on its review of the complaint to the Working Group. The Appeal Committee may direct that the Chair(s) decision be annulled if the Policy Development Process has not been followed. 1. Anyone may request the recall of a Working Group Chair at any time, upon written request with justification to the AFRINIC Board of Directors. The request must be supported by at least five (5) other persons from the Working Group. The AFRINIC Board of Directors shall appoint a recall committee, excluding the persons requesting the recall and the Working Group Chairs. The recall committee shall investigate the circumstances of the justification for the recall and determine the outcome.	3.5 Conflict Resolution 1. A person who disagrees with the actions taken by the Chair(s) shall discuss the matter with the PDWG Chair(s) or with the PDWG. If the disagreement cannot be resolved in this way, the person may file an appeal with an Appeal Committee appointed by the AFRINIC Board of Directors. An appeal can only be filed if it is supported by three (3) persons from the Working Group who have participated in the discussions. 1. The appeal must be submitted within two weeks of the public knowledge of the decision. The Appeal Committee may direct that the Chair(s) decision be annulled if the Policy Development Process has not been followed. 1. Anyone may request the recall of a Working Group Chair at any time, upon written request with justification to the AFRINIC Board of Directors (“Board”), but such request to recall the PDWG Chair(s) shall only be limited to 1 time during the tenure of the PDWG Chair(s) so as to maintain the stability of the Working Group. The request must be supported by at least five (5) other persons from the Working Group. 1. The Board shall first investigate into the recall request within 4 weeks upon receiving the recall request and decide whether the recall request is justified or not, after having consulted with the community’s opinion in the mailing list. 1. After the investigation, if the Board decides the recall request is not justified, then the Board shall dismiss the recall request by publishing an announcement of its decision in the mailing list. 1. Whereas, if the Board decides there are reasonably justified grounds for the recall, the Board shall proceed to appoint (within 4 weeks from the date the Board deems the recall request justified) the Recall Committee to further investigate the recall request. 1. In the event the Board requires more time to investigate the recall request, the Board shall publish an extension of time required by the Board in the mailing list as a brief update. For the avoidance of doubt, the Board shall have the absolute discretion to decide whether the recall request is justified or not, upon after carrying out its own investigation and after having consulted with the community’s opinion in the mailing list. 1. Once the Recall Committee members are appointed by the Board, the Board shall proceed to publish all of the names of the Recall Committee members in the mailing list to allow an opportunity for the community to assess and challenge the integrity of each Recall Committee member for at least 2 weeks from the date of publication of the Recall Committee members’ names. 1. The Recall Committee members (i) must be composed of 7 individuals with integrity not necessarily from within the community without having any conflict of interest with the PDWG Chair(s) and the persons who submitted the recall request (“Complainant”, shall also mean to include those who support the recall request), and, (ii) must not consist of the PDWG Chair(s) and the Complainant. 1. If any of the Recall Committee member’s integrity is challenged by at least 3 people from the community(by request to the Board), the Board shall proceed to investigate, for a maximum period of 4 weeks from the date of receiving the request challenges, the integrity of the Recall Committee member(s) in question in order to determine whether such Recall Committee member(s) should remain or be replaced in the Recall Committee or not. If the Board determines the challenged Recall Committee member(s) shall not be in the Recall Committee, then the Board shall proceed to publish the new names of the Recall Committee members in the mailing list and allow another 2 weeks for the community to assess and challenge the integrity of the newly listed Recall Committee members. Whereas, if the Board determines that the challenged Recall Committee member(s) shall remain in the Recall Committee, then the challenged Recall Committee member(s) shall continue to remain in the Recall Committee. 1. Once the Recall Committee is appointed and accepted by the Board and the community respectively, the Recall Committee shall have at least 8 weeks upon being duly established to investigate all issues mentioned in the recall request made by the Complainant to decide if a recalling of the PDWG Chair(s) is required or not. The recall committee must allow for a fair hearing from the co-chair. The report of the committee must also be endorsed by a supermajority of the seating board members for the board to allow for an election recall. The board must reach a verdict within 4 weeks of the committee submitting its report. 1. If the Recall Committee decides there is no need to recall the PDWG Chair(s), then the recall request shall be deemed to be duly dismissed and shall not be further challenged by the Complainant, to which the Recall Committee shall submit a report of its findings (containing its reason for the decision) and publish such report to the mailing list. 1. If the Recall Committee decides there is a need to recall the PDWG Chair(s), then the Recall Committee must publish its report findings(containing its reason for the decision) in the mailing list, in which the Recall Committee shall also inform in the mailing list that a vote to recall must take place within the community at least 6 weeks after the Recall Committee has published its report findings in the mailing. A vote to recall the PDWG Chair(s) is only established if a supermajority vote is achieved by the community to recall the PDWG Chair(s). For the avoidance of doubt, a supermajority vote is achieved by the community if there are at least 70% and above votes acquired for a decision. For better clarity, the qualification for the community to participate in the vote to recall shall be the same as that when the current PDWG Chair(s) was previously elected at that time. If such qualification is unable to be implemented due to unforeseen and/or exceptional circumstances, then such qualification for the community to participate in the vote to recall shall abide by the same requirements as that when the previous PDWG Chair(s) was elected at that time. 1. During the 6 weeks prior to the day of the vote to recall by the community, the PDWG Chair(s) must be given an opportunity to prepare and defend himself and must also be given at least 1 attempt of the right to appeal to the Board against the Recall Committee’s decision. If Board deems it fit and appropriate, the Board may uphold the appeal submitted by the PDWG Chair(s) and shall have the power to override the report findings of the Recall Committee with reasons, to which the recall request will be effectively deemed dismissed and shall not be further challenged by the Complainant. 1. After 6 weeks from the date of the Recall Committee’s report findings is published in the mailing list is over and if the Board rejects the appeal submitted by PDWG Chair(s) during the 6 weeks, then a vote to recall shall take place among the community, The Vote shall be online if it is not within 1 month of a public policy meeting. If not the vote shall take place during a Public policy meeting. If the vote would be online only members on the mailing list as at the date the request was submitted would be able to vote. If during a physical meeting only those who are present shall be able to vote or in line with those eligible to elect a chair. 1. At the end of the vote, if a supermajority vote is achieved by the community to recall the PDWG Chair(s), then re-election of the PDWG Chair(s) must take place within 8 weeks after the day of the supermajority vote is achieved, in which the recalled PDWG Chair(s) shall also have the chance to reapply for the same position. 1. Whereas, if a supermajority vote is not achieved by the community to recall the PDWG Chair(s), then the recall request made by the Complainant shall be deemed duly dismissed and shall not be further challenged by the Complainant.

Current

Proposed

3.5 Conflict Resolution 1. A person who disagrees with the actions taken by the Chair(s) shall discuss the matter with the PDWG Chair(s) or with the PDWG. If the disagreement cannot be resolved in this way, the person may file an appeal with an Appeal Committee appointed by the AFRINIC Board of Directors. An appeal can only be filed if it is supported by three (3) persons from the Working Group who have participated in the discussions. 1. The appeal must be submitted within two weeks of the public knowledge of the decision. The Appeal Committee may direct that the Chair(s) decision be annulled if the Policy Development Process has not been followed. 1. Anyone may request the recall of a Working Group Chair at any time, upon written request with justification to the AFRINIC Board of Directors (“Board”), but such request to recall the PDWG Chair(s) shall only be limited to 1 time during the tenure of the PDWG Chair(s) so as to maintain the stability of the Working Group. The request must be supported by at least five (5) other persons from the Working Group. 1. The Board shall first investigate into the recall request within 4 weeks upon receiving the recall request and decide whether the recall request is justified or not, after having consulted with the community’s opinion in the mailing list. 1. After the investigation, if the Board decides the recall request is not justified, then the Board shall dismiss the recall request by publishing an announcement of its decision in the mailing list. 1. Whereas, if the Board decides there are reasonably justified grounds for the recall, the Board shall proceed to appoint (within 4 weeks from the date the Board deems the recall request justified) the Recall Committee to further investigate the recall request. 1. In the event the Board requires more time to investigate the recall request, the Board shall publish an extension of time required by the Board in the mailing list as a brief update. For the avoidance of doubt, the Board shall have the absolute discretion to decide whether the recall request is justified or not, upon after carrying out its own investigation and after having consulted with the community’s opinion in the mailing list. 1. Once the Recall Committee members are appointed by the Board, the Board shall proceed to publish all of the names of the Recall Committee members in the mailing list to allow an opportunity for the community to assess and challenge the integrity of each Recall Committee member for at least 2 weeks from the date of publication of the Recall Committee members’ names. 1. The Recall Committee members (i) must be composed of 7 individuals with integrity not necessarily from within the community without having any conflict of interest with the PDWG Chair(s) and the persons who submitted the recall request (“Complainant”, shall also mean to include those who support the recall request), and, (ii) must not consist of the PDWG Chair(s) and the Complainant. 1. If any of the Recall Committee member’s integrity is challenged by at least 3 people from the community(by request to the Board), the Board shall proceed to investigate, for a maximum period of 4 weeks from the date of receiving the request challenges, the integrity of the Recall Committee member(s) in question in order to determine whether such Recall Committee member(s) should remain or be replaced in the Recall Committee or not. If the Board determines the challenged Recall Committee member(s) shall not be in the Recall Committee, then the Board shall proceed to publish the new names of the Recall Committee members in the mailing list and allow another 2 weeks for the community to assess and challenge the integrity of the newly listed Recall Committee members. Whereas, if the Board determines that the challenged Recall Committee member(s) shall remain in the Recall Committee, then the challenged Recall Committee member(s) shall continue to remain in the Recall Committee. 1. Once the Recall Committee is appointed and accepted by the Board and the community respectively, the Recall Committee shall have at least 8 weeks upon being duly established to investigate all issues mentioned in the recall request made by the Complainant to decide if a recalling of the PDWG Chair(s) is required or not. The recall committee must allow for a fair hearing from the co-chair. The report of the committee must also be endorsed by a supermajority of the seating board members for the board to allow for an election recall. The board must reach a verdict within 4 weeks of the committee submitting its report. 1. If the Recall Committee decides there is no need to recall the PDWG Chair(s), then the recall request shall be deemed to be duly dismissed and shall not be further challenged by the Complainant, to which the Recall Committee shall submit a report of its findings (containing its reason for the decision) and publish such report to the mailing list. 1. If the Recall Committee decides there is a need to recall the PDWG Chair(s), then the Recall Committee must publish its report findings(containing its reason for the decision) in the mailing list, in which the Recall Committee shall also inform in the mailing list that a vote to recall must take place within the community at least 6 weeks after the Recall Committee has published its report findings in the mailing. A vote to recall the PDWG Chair(s) is only established if a supermajority vote is achieved by the community to recall the PDWG Chair(s). For the avoidance of doubt, a supermajority vote is achieved by the community if there are at least 70% and above votes acquired for a decision. For better clarity, the qualification for the community to participate in the vote to recall shall be the same as that when the current PDWG Chair(s) was previously elected at that time. If such qualification is unable to be implemented due to unforeseen and/or exceptional circumstances, then such qualification for the community to participate in the vote to recall shall abide by the same requirements as that when the previous PDWG Chair(s) was elected at that time. 1. During the 6 weeks prior to the day of the vote to recall by the community, the PDWG Chair(s) must be given an opportunity to prepare and defend himself and must also be given at least 1 attempt of the right to appeal to the Board against the Recall Committee’s decision. If Board deems it fit and appropriate, the Board may uphold the appeal submitted by the PDWG Chair(s) and shall have the power to override the report findings of the Recall Committee with reasons, to which the recall request will be effectively deemed dismissed and shall not be further challenged by the Complainant. 1. After 6 weeks from the date of the Recall Committee’s report findings is published in the mailing list is over and if the Board rejects the appeal submitted by PDWG Chair(s) during the 6 weeks, then a vote to recall shall take place among the community, The Vote shall be online if it is not within 1 month of a public policy meeting. If not the vote shall take place during a Public policy meeting. If the vote would be online only members on the mailing list as at the date the request was submitted would be able to vote. If during a physical meeting only those who are present shall be able to vote or in line with those eligible to elect a chair. 1. At the end of the vote, if a supermajority vote is achieved by the community to recall the PDWG Chair(s), then re-election of the PDWG Chair(s) must take place within 8 weeks after the day of the supermajority vote is achieved, in which the recalled PDWG Chair(s) shall also have the chance to reapply for the same position. 1. Whereas, if a supermajority vote is not achieved by the community to recall the PDWG Chair(s), then the recall request made by the Complainant shall be deemed duly dismissed and shall not be further challenged by the Complainant.

Revision History

Date	Details
24 Nov 2020	Version 1: AFPUB-2020-GEN-007-DRAFT01 * Draft proposal submitted

AFRINIC Staff Assessment

Date of Assessment: 26 October 2021

1.0) Staff Interpretation & Understanding of the proposal

This proposal aims at revoking the existing Section 3.5 of the Consolidated Policy Manual (CPM) which cover the appeal and recall processes respectively and replacing them with the text submitted in this proposal.

As per this proposal, In the case of appeal in 3.5(2) of this proposal, the following text is being removed - “The Appeal Committee shall issue a report on its review of the complaint to the Working Group”.

In the case of the recall of the PDWG Chairs 3.5(3), this proposal brings forward new requirements to the recall process that include a more active Board involvement in the recall as well as an involvement of the community in the endorsement of the Recall Committee members appointed by the Board and the Recall Committee’s determination that the recall of a PDWG Chair is justified. Section 3(10) of the proposal mentions that in case the Recall Committee determines that the co-chair(s) need to be recalled, a vote within the community must take place.

2.0) AFRINIC Staff Comments on clarity of policy

At the outset, it is important to note that to date, only 2 recall petitions have been submitted to the board of directors. In the first case, both the PDWG’s co-chairs had been recalled whereas in the latter case, the board of directors has recently instituted a recall committee to investigate the matter and the outcome is yet to be determined.

AFRINIC is not aware of any real or reported issue(s) or difficulty that the first recall committee encountered in dealing with the matter and/or any real problem requiring a review of the recall process. This proposal pre-dates the consideration of the first recall in 2020 and has not been amended to cater for any particular problem encountered by the recall committee.

The recall procedure in 2020 took a total of 12 weeks from the submission of the recall to the publication of the recall committee report. The recall process as formulated in this proposal is lengthy and time-consuming as it may last up to a maximum of 30 weeks starting from the submission of a recall request to the recall of the PDWG Chair.

Therefore, it is unlikely that the outcome of a recall petition will be determined expeditiously.

Holding a vote within the community will necessitate guidance as to who shall be in charge of this vote as the CPM is silent in this regard.

3.0) AFRINIC Staff Clarification Requests

It is important that the author(s) clarify whether the reference made to “community” in the draft proposal relates to AFRINIC general Internet Community or is restricted to the PDWG wherein policy proposals are discussed.

The voting register(community) as explained in Section 3(10) is dependent on the conditions prevailing at the time PDWG Chairs were selected in accordance with the Consolidated Policy Manual. Can the author clarify as to how they expect a vote to happen if current or previous PDWG Chairs were selected by consensus or elected as a result of the only candidate for the position?

Authors to provide guidance as to who shall be in charge of this vote as the CPM is silent in this regard.

4.0) Staff Comments On Areas of Impact

4.1) Impact on Registry Functions

This proposal does not impact the AFRINIC registry functions and systems.

4.2) Impact on Elections Platform

A vote within the community will require AFRINIC to implement an election.

4.3) Impact on Processes and procedure

Appeal procedure - Once the Appeal procedure has been completed by the Appeal Committee, the latter is no longer mandated to issue its report on its review of the appeal to the Working Group.
Recall Procedure - The recall process as formulated may last up to a maximum of 30 weeks starting from the submission of a recall request to the recall of the PDWG Chair. The Recall Committee will have to adhere to the conditions mentioned in the proposal.
RPD Mailing List - Report on active mailing list participants
Elections Process - The elections process is silent about the ‘elections’ mentioned in the CPM. Guidance is therefore required as to who shall lead in the organisation of said elections/voting.
Voting Register - The voting register is an important element of an ‘election or voting process and the conditions of eligibility need to be very clear for the sake of fairness and transparency.

4.4) Legal Assessment

The fundamental issue with the present proposal is that, unlike the existing provision of section 3.5(3) of the Consolidated Policy Manual, the new proposal requires the board of directors to conduct a preliminary investigation into the recall petition before the appointment of a recall committee. Consequently, it goes without saying that the recall committee will be influenced by the outcome of the preliminary investigation conducted by the board of directors.

Likewise, the proposal mentions that the appointment of an eventual recall committee ought to be made in consultation with the AFRINIC’s Internet community. Doing so will only add to the existing chaotic environment that the PDWG currently finds itself in.

The other most unrealistic and impractical features of the policy proposal are as follows:

Publication of the names of the members of the Recall Committee for the purposes of inviting comments from the AFRINIC Internet community.
The avenue for the AFRINIC Internet Community to challenge the appointment of the members of the recall committee.
The requirement that the recall committee’s report must be endorsed by a supermajority of the board of directors.
It is important to note that decisions of the board of directors, unless a higher majority is required by the Companies Act, shall always be by way of an ordinary resolution, i.e. simple majority.
Paragraph 9 of the proposal is contradictory with the intended powers attributed to the board of directors pursuant to paragraph 1 thereof.
The requirement for a vote by the AFRINIC Internet community makes the process even more complicated and unworkable in practice.
The appeal avenue to the board of directors catered in paragraph 11 is even more contradictory and unreasonable inasmuch as the board of directors cannot sit on appeal against the effect of its own preliminary investigation (paragraph 1 of the proposal refers).
Paragraphs 8 and 11 of the proposal may be viewed as excessive, disproportionate, and unfair for the simple reason that the co-chairs cannot reasonably be called upon to defend themselves twice during the whole process – one before the recall committee and another before the Community.

4.5) Financial Assessment

Elections or Voting Platform is outsourced and therefore budget needs to be planned accordingly.

5.0) Implementation

The timeline of implementation can be within 6 months of the Last Call as prescribed by the CPM.