NRS's response to Mr. Paul Wilson's recent blog post - "who is the imposter manipulating AFRINIC and the NRO?"
Following the two letters by the NRO, Paul Wilson, the Director General of APNIC, has written a blog post explaining the NRO's rationale support of AFRINIC: link to the article: https://blog.apnic.net/2022/07/22/why-the-nro-is-defending-afrinic/
However, Paul's blog post misses and disregards a ton of evidence that proves that the decision makers in NRO and AFRINIC have in fact acted against the interests of their respective members and the RIR system as a whole.
AFRINIC's Legal Issues
There are a number of erroneous points Mr. Wilson raised that would be gladly refuted with substantial evidence; starting with this quote in his first paragraph "This was prompted by the recent series of challenges to AFRINIC, entailing some 40 different legal actions which have included a lengthy injunction suspending AFRINIC’s bank accounts, lawsuits against individual staff and directors, and a widely reported damages claim for USD $1.8 billion."
We would like to point out that the legal actions currently facing AFRINIC are not by one resource member alone, but by multiple disgruntled and fed up members who have simply had enough. The resource members are discontent with AFRINIC's management, and since AFRINIC failed to resolve the issues with the members in any other way, the members have filed their lawsuits. It is nonsensical for the members to spend legal fees if there were alternative means. This is proven with each single case.
Furthermore, AFRINIC ex-CEO and directors have been caught using AFRINIC’s money - a huge amount of it - for the lawsuits against them as individuals. i.e. they’re using resource members’ money to settle and fight their own personal lawsuits. Not only is this against the bylaws, they have also done so without consulting the members. AFRINIC directors are not under any circumstances allowed to use AFRINIC's money to handle the expenses caused by their own personal lawsuits. Unfortunately, the board of directors have passed new and illegal resolutions which state that "All legal costs to be incurred by a director related to the case be borne by the company" for their own interests at the cost of the members' money.
This new resolution allows them to use member fees to settle personal disputes; to use the money of the organization as means of erasing their own wrongdoings. See the resolution below:
Resolution 202201.666
WHEREAS the company has received a notice of motion from Cloud Innovation Ltd against the African Network Information Centre (AFRINIC) Ltd and others on 13th January 2022;
RESOLVED that all legal costs to be incurred by a director related to the case be borne by the company.
Resolution 202203.681
WHEREAS one board director, [REDACTED] has received a letter, prior to suit, from the legal representative of [REDACTED] in his country of residence;
WHEREAS other directors may face the same legal predicament;
RESOLVED to authorise the company to cover the legal costs in their defence;
RESOLVED to authorise the company's Legal Department to communicate and exchange with the legal representative of any director on matters covered by the Non-Disclosure Agreement.
A threat to the stability of AFRINIC and RIR system
In another statement, Mr Wilson writes, "At APNIC we believe that this situation has seriously challenged the stability of AFRINIC, and in fact threatened its very existence. As an RIR, AFRINIC plays an extremely important role in the global management of the Internet, and these threats to the organization also threaten the Internet in Africa, and elsewhere. This is of vital concern to the NRO and to APNIC, and we believe to all members of the RIR communities."
The response to this is simple and yet ironic because the very existence of AFRINIC, Mr Wilson so gladly tries to defend, is in fact threatened by its own poor and corrupt management. Some of the board members have illegally occupied the board seats, and the court confirmed this illegality by suspending them. One of these seats is unjustly held by Mr Cabral. He was given the 5th seat under what was called the casual vacancy. He continued to occupy the seat despite it had far exceeded the "deadline". According to the bylaws, casual vacancies are valid until the next following Annual General Members' Meeting. In other words, Mr Cabral's act of occupying the seat after the AGMM is illegal. In fact, the then chairman of AFRINIC said so himself in a letter penned to the resource members which reads:
"Dear AFRINIC members and community,
"The Board of Directors of AFRINIC is pleased to announce the appointment of Mr Silvio Cabral Almada as Director with effect from 27 December 2021 until the next AGMM which is planned to be held in June 2022. The appointment was to fill the vacant Seat 5 (Southern Africa) on the Board, in terms of Article 13.14 of the AFRINIC Bylaws."
The other board seat number 6 was occupied by the falsely elected Abdalla Omari to serve a 2-year term as a board member. The bylaws of AFRINIC per the 13:5 clause state that the Directors do not have any right to elect anybody for a 2-year term. Despite this, the board members extended Abdalla Omari’s tenure by passing an illegal resolution without notifying its members. This pattern of passing resolutions without notifying the resource members as per the bylaws is no doubt another huge reason for the constant dissent against the current leadership within AFRINIC. The 2-year tenure of Mr Omari was gifted to him via a board resolution despite internal and external warnings not to do so as it is against the law. In fact, the Mauritius courts intervened and ordered that both seats be vacated. This consequently led to AFRINIC operating illegally without a proper quorum. In the bylaws, a quorum needs 5 members but because Abdalla and the other board seat occupied by Mr Cabral were both illegal, this means there were only 3 valid and legal members in the quorum. This fact of quorum is further emphasized by the now suspended CEO himself, Eddy. In the court documents submitted, Eddy himself confirms that AFRINIC lacks quorum. It is bewildering why they took the illegal acts despite being well-aware of its illegality and relevant consequences.
Also, the member's clear discontent was shown during the recently concluded AGMM Meeting. In the AGMM meeting, a lot of resource members who registered for the AGMM didn't receive the necessary tokens needed to attend the meeting, which means they were effectively locked out. Online participants were being ignored and their questions and concerns were not addressed, leading to one resource member calling for a motion to adjourn the meeting for one hour until all the issues had been taken care of. In spite of this, the AFRINIC board didn't acquiesce even though they were required to by law. Not to forget the financial statements put forward by the AFRINIC board and CEO were full of discrepancies. A resource member pointed out that there was a discrepancy with the statements and asked for an explanation but AFRINIC declined to clarify. And when another resource member asked if any member of the AFRINIC board was under criminal investigation and how much AFRINIC had spent on personal legal fees for its board members, the board lied and said none when we all know this isn't true, as they clearly passed a board resolution to cover board member’s personal lawsuits.
Additionally, it was discovered that AFRINIC's financials with regards to profit were all wrong. AFRINIC made 1.224 million in 2019, 2 and 1.916 million in 2021. However, the legal fees amounted to 633,000 dollars, meaning the organization had a surplus of 1.5 million. Which means AFRINIC has generated a surplus of 20 percent of their revenue, but under Mauritian law (where AFRINIC is based), a non-profit even while accumulating surplus for reserves, may not accumulate more than 15 percent surplus in a year. How exactly is the board going to deal with this massive excess surplus without continuing to put their tax exempt status at risk? why didn't the auditors in a management letter, specify anything about the excessive amount of surplus being made by AFRINIC as a non-profit? All essential questions that the AFRINIC leadership did not address during the AGMM.
The CEO was suspended by the court, and he still claimed he’s the director of AFRINIC. This is not a fact that has escaped anyone's attention, as it has been a huge news story for the past few weeks. Eddy Kayihura himself, has continually been held in contempt of court. Following the numerous allegations, court and fraudulent cases against him, Eddy was ordered by the courts to step down as CEO of AFRINIC, yet he has refused to do so and this has led to him being held in contempt of court. A bad charge that carries jail time. He has already been held in contempt of the court 3 times, and the member who filed the case has served him with yet another contempt notice. Eddy has blatantly disregarded the bylaws of AFRINIC that states there is no CEO without the Board. And with the powers of the CEO being suspended by a court order, Eddy has decided to not adhere to this court order, effectively making things worse for AFRINIC as an organization. This underlines the argument that only the leadership in AFRINIC is making things bad for AFRINIC.
Finally, Eddy has disregarded the AFRINIC bylaws multiple times by making laws of his own and holding fraudulent elections. He has also made numerous outlandish claims stating that AFRINIC has the right to monitor every-end user and can disconnect any user it wants to thereby disconnecting millions of people in Africa who disagree with him.
Erroneous Letters of Support
In yet another sentence, Mr Wilson willfully forgets the circumstances that have led AFRINIC and the entire RIR down this dark path of lawsuits and injustices. He writes "The NRO’s first letter appealed to the African community to come together in support of its RIR, AFRINIC; affirming that “the regional activities and policy process of an RIR are solely in the hands of [the AFRINIC] community, but the health of those processes is of paramount importance to the global Internet community.” In the second letter, the NRO addressed the Government of Mauritius, at AFRINIC’s request, to draw attention to the seriousness of the current situation. "With this letter, the NRO felt that it was essential to highlight the risk of disproportionate damage to the Internet which may be caused, inadvertently or not, by individuals pursuing private interests through legal processes (whether or not they are entitled to do so). We also felt it was appropriate and necessary to reiterate the reasons for AFRINIC’s original choice of Mauritius as its operational base."
As an esteemed Director General with over 30 years’ of involvement in the Internet, including 20 years as the head of APNIC, the Regional Internet address Registry for the Asia Pacific, Mr Wilson completely misses the point. The NRO’s first letter affirms that the AFRINIC’s development is “solely in the hands of the AFRINIC community” while they deny that very fact by issuing the second letter by directly interfering with not only AFRINIC matters, but also the juridical system in Mauritius, where AFRINIC is based. This is sarcastic.
The second letter to the Mauritius government is arrogant and improper, it not only violates the bottom up process on which RIR is built, it also tries to interfere with the juridical system in Mauritius.
The facts are staring us right in the eye. Earlier this week, a series of court documents were uncovered that cast a dark shadow on the potentially illegal actions being carried out by the suspended CEO of AFRINIC. These court documents show that Mr Kayihura requested that the ATU appoints candidates who will act as directors of AFRINIC. This is an organization with bylaws and rules that govern its members and leadership. These bylaws clearly state that directors within the organization must be elected through a free and fair electoral process. Directors cannot simply be appointed as this goes against the very nature and fabric of the organization. But by bypassing the nominations put forward by resource members and proposing their own nominations, Eddy has once again disappointed the community by defying the bottom-up approach of the RIR system; violating and striping the community members of their rights to nominate and vote for their own director through a free, fair and open election. These actions further go to prove that although the intentions of Mr Wilson are pure and well intended, NRO's statement in the second letter is wrong and misleading.
In addition, all the court orders passed down by the Mauritius courts to AFRINIC have been largely ignored. Eddy himself, has sued AFRINIC in court. Eddy's actions endangers the entire RIR system. His and NRO's unusual request of asking a governmental body to interfere in the RIR system is exactly what the whole RIR has tried to avoid for decades since its creation in order to keep its independent non-partial status. The debacle serves as a fatal and dangerous warning sign and example to the other RIRs. If this is allowed to happen, a string of similar "appointments" may take place as a result. This strips the RIRs of all their independence and autonomy.
Hence, we can safely say the problems of these two letters are that there's a potential illegal request for external interference, and a blatant disregard for the rule of law that endangers the RIR system, which Mr Wilson claims to protect and preserve.
Addressing Resource Members' Grievances is priority
In the final statement we would like to respond with facts and irrefutable evidences; "We respect and understand that RIR Members may sometimes have disputes with the decisions or governance of their RIR; and also, that there may be concerns with governance and operational decisions of any RIR which may legitimately result in legal actions. While those processes must of course be resolved through established mechanisms, we felt strongly obliged to highlight the current risks and try to have them better understood."
There is no one to blame in this situation but the management in AFRINIC, who has continually neglected and turned a blind eye to its members' needs. They haven't had a good stretch in the past few years and things only seem to be getting worse.
So many questions and concerns of resource members were left unanswered during the AGMM meeting. Board seats were illegally occupied and not given up despite court orders mandating AFRINIC to make needed changes. Eddy launched a censorship effectively making sure that nobody could post anything that painted him and his corrupt group of friends in a bad light. Why censor the community and make sure they don't have a chance to voice their opinions as per the bylaws of the organization? Why take away their freedom of speech? Doing this violates the very principle on which AFRINIC was found as a community driven, bottom-up organization.
Who is the imposter that pretends to be AFRINIC?
NRS has acquired vital information from one of our members regarding an email sent by the S. Moonesamy, a director of AFRINIC. Mr Moonesamy has wiped his hands clean of the potential scheme by Eddy Kayihura to appoint four directors without the knowledge of the resource members by claiming the following:
"The well-established practice is for a Board to select the Chief Executive Officer. The reverse is like having a Chief Executive Officer manage the Board instead of him/her working under the policy direction of the Board. I would like it to be clear that I was not involved in the decision to file an application in the Supreme Court of Mauritius to appoint four directors to the Board in any manner whatsover. Regards, S.Moonesamy Director, AFRINIC Board"
This information comes as a shock but it poses a serious question: who is the imposter pretending to be AFIRNIC?
AFRINIC currently does not have a board nor a CEO according to the court. In this sense, no one can legally speak on behalf of AFRINIC nor take any action for AFRINIC. Thus, we have a question for Mr Wilson: Who did you actually consult in AFRINIC per your claim in the NRO letter (that AFRINIC leadership has requested NRO to interfere with judicial proceedings in a foreign country), when in fact AFRINIC leadership is non-existent? Who is the the imposter that initiated the request to NRO?
One fact is for definite: Irrespective of who Mr Wilson spoke with at AFRINIC, this person is an imposter who doesn’t have any legal rights to be the spokesman of AFRINIC. Any previous leaders of AFRINIC or any human being who initiated the request is acting unlawfully. Mr Wilson and the NRO owe the community an explanation on who this imposter is.
Final Words
Resource members have been through it all, they have been pushed to their limits hence, they are left with no choice but to resort to legal action just to make their voices heard. While Mr Wilson may "respect and understand RIR Members may sometimes have disputes with the decisions or governance of their RIR", he must also understand that the RIRs must "respect and understand" the grievances being brought forward by discontented members, and it is AFRINIC's corrupt management that led to pandemonium we are now facing. The RIRs must abide by the bottom up process that governs the system to prevent chaos and disorder.
The solution to this isn't to pacify resource members with flowery words or support the leadership that has failed to carry out its duties and responsibilities to its members all in the name of maintaining the status quo. Resource members have had enough, they have complained, they have lobbied and when all else failed, they ran to the courts as their last resort.
The solution is to start paying attention to members, listening to their concerns and dealing with each matter as objectively and unbiased as possible.
The current leadership in AFRINIC has failed and must be replaced, only then will the RIRs gain back the trust and backing of the resource members. The fundamentals of the RIR system should be strengthened in these difficult times instead of twisting it to preserve certain people. Then and only then will the chaos end.
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