[afnog] Notice of Appointment of Receiver (pursuant to Section 187 of the Insolvency Act 2009) - Ref: AFRINIC Board Election Process and Compliance with Bylaws

[Noah]

Dear Mr.Dabee

I refer you to the email sent on Feb 17, 2025 to AFRINIC resource members.
 See at the bottom in red.

I am writing to reiterate the previous concerns regarding the 2025 AFRINIC
Board election process, as detailed in the "Call for Nominations" (open
until August 29, 2025, at 23:59 Mauritius time) and the "Election
Guidelines" published at
https://elections.afrinic.net/about-election-2025/election-guidelines. As a
stakeholder in AFRINIC’s governance, I reference your mandate under the
Supreme Court of Mauritius order (SC/COM/MOT/000082/2025) to secure
AFRINIC’s assets and reconstitute the Board in accordance with the AFRINIC
Bylaws (2020). The current date is August 27, 2025, leaving only two days
until the nomination deadline, which amplifies the urgency of addressing
these issues.

The annulment of the July 2025 elections and the Supreme Court’s ruling on
June 19, 2025 (emphasizing fairness, transparency, and proper member
classification) demand a strictly compliant process. However, the Election
Guidelines introduce ambiguities and alterations that violate the Bylaws,
including incorrect NomCom composition, directors term lengths and
rotation, which echo past attempts to extend director terms invalidated by
the court in Africa On Cloud (Pty) Ltd v AFRINIC Ltd
(SC/COM/WRT/000418/2022).  That precedent underscores that director terms
are fixed at three years (Article 13.5), and extensions or alterations to
the staggered rotation (Article 13.6) require proper member approval via
Special Resolution (Articles 7.6, 7.7) not unilateral action by the Board
or Receiver.

Additionally, paragraph 3.8 of your Election Guidelines states: "*As
AFRINIC currently has no directors in office, the Receiver shall, for all
intents and purposes, be deemed to exercise all the powers of the Board, as
conferred by the Bylaws, for the purposes of this election. Accordingly,
both the NomCom and ElecCom shall operate under such written guidance of
the Receiver.*" This assertion raises serious concerns, as it appears to
exceed the scope of your court-appointed mandate, which is to reconstitute
the Board in accordance with the Bylaws, not to assume broad powers to
override or alter them. Under the Mauritius Companies Act 2001, a receiver
manages assets and operations during receivership but must respect the
company's constitution for internal governance matters like member
elections, unless explicitly authorized by the court to deviate. The 2022
case illustrates the judiciary's scrutiny of unauthorized governance
changes, and deeming yourself to wield all Board powers risks similar
invalidation, potentially rendering the election process ultra vires. The
current process deviates from this precedent and the Bylaws, risking
similar invalidation.

The Call for Nominations and Election Guidelines list all six regional
seats (Seats 1 - 6: Northern, Western, Indian Ocean, Central, Southern, and
Eastern Africa) as open for election (Election Guidelines, section 2.5). This
violates Article 13.6, which mandates a staggered election sequence to
ensure Board continuity. Electing all six regional seats simultaneously
disrupts this sequence, potentially destabilizing the Board. Your election
guidelines do not justify this deviation. The Call for Nominations and
Election Guidelines include Seats 7 and 8 (Region-Independent directors),
which aligns with Article 13.4(ii). However, the Bylaws tie their election
cycle to the regional elections for Northern/Western and Indian
Ocean/Central regions (Article 13.7).

The Election Guidelines state that directors "shall hold office for a term
not exceeding three (3) years," with rotation to be "addressed by the
forthcoming elected Board within 1 month of being constituted" (Article
2.3). This ambiguity violates Article 13.5, which mandates a fixed
three-year term expiring at the AGMM on or around the third anniversary.
The "not exceeding" language allows for shorter terms, and deferring
rotation to the new Board circumvents the staggered sequence (Article 13.6).

The Board attempted to extend Dr. Omari's term (elected September 18, 2020,
for two years, expiring 2022) by one year via resolution on February 21,
2022, to align rotation. The court restrained this, finding no Bylaw
authority for extensions outside casual vacancies (Article 13.14, limited
to interim appointments until the next AGMM). Your guidelines' flexibility
risks repeating this invalid extension, since you Mr.Dabee as the Receiver
cannot alter terms without member approval. While that specific case
against Dr.Omari was resisted and is ongoing, the interim order sets a
clear precedent against such actions.
In addition, your guidelines listing all Seats 1 - 6 for election (Article
2.5) ignores the staggered staggered sequence (Article 13.6). The 2022
extension attempted to "align" rotation, but the court restrained it.
Deferring rotation to the new Board in your elections guidelines section
2.3 is invalid, as rotation is fixed by the Bylaws.

Infact your elections guidelines purport to claim precedence over the
Bylaws in case of conflict (Article 1.1), which is invalid. Bylaw
amendments require a Special Resolution (Articles 7.6, 7.7), and your court
mandate as a receiver does not grant you authority to unilaterally alter
the Bylaws like in this case where;

   - There is a six-member NomCom as per your elections guidelines 3.1 vs.
   Bylaw Article 9
   - There will be online-only elections without an AGMM/SGMM as per your
   guidelines section 8.1 vs. Bylaw Articles 11, 12
   - There is prohibition of proxy voting as per your guidelines sections
   8.1 vs. Bylaw Article 12.12
   - Members of the NomCom will be recusing themselves from their region’s
   candidate reviews as per your guidelines 3.5 vs. Bylaw Article 9, which
   does not provide for such a structure.
   - You have introduced all these changes, without resource member
   approval, violating AFRINIC Bylaws and undermining the community-driven
   process as per Bylaws Article 3.4. (*Infact I must remind you that
   resource members are not second class citizens*)

In fact, speaking of the NOMCOM. Your election guidelines list the NomCom
as comprising six members, one from each AFRINIC region (Election
Guidelines, section 3.1). This violates Article 9, which stipulates a
NomCom of a chairman and three community members, plus one non-voting Board
representative (in this case Receiver), totaling no more than four members
(excluding the Board representative). The six-member structure, with
regional representation, is an unauthorized alteration of the Bylaws. Your
election guidelines’ claim that this is an “exceptional” decision by you as
the Receiver in section (3.5), lacks legitimacy, since Bylaw amendments
require a Special Resolution or court order to deviate as an exception in
consultation with AFRINIC members.

Now, your call for nominations, opened from August 15 to August 29, 2025 as
per your election guidelines, section 11.1, which provided only two weeks,
far short of the 3 - 8 week requirement in Article 12.14. This compressed
timeline limits candidate participation and NomCom’s ability to vet
applications, risking an unfair process and contradicting the Bylaws’
emphasis on community engagement. The two-week nomination period (August 15
- 29, 2025) violates the 3 - 8 week requirement (Article 12.14).

The Election Guidelines assert that the Supreme Court confers “exclusive
election authority” on the Receiver in which case you Mr.Dabee, including
the power to establish the NomCom and ElecCom (Article 1.1). While you as a
court appointed Receiver may act in the Board’s absence as you stated in
the elections guideline section 3.8, the Bylaws do not grant you authority
to unilaterally alter governance processes. Your mandate is to reconstitute
the Board in accordance with the Bylaws, not to override them. This
overreach risks further legal scrutiny, especially given the court’s prior
emphasis.
Mr.Dabee, if indeed as per your claims, that AFRINIC currently has no
directors in office, and that you as a Receiver shall, for all intents and
purposes, be deemed to exercise all the powers of the Board, as conferred
by the Bylaws, for the purposes of this election, *then why have you not
called an AGMM or SGMM for the purposes of these Elections which must occur
at an AGMM or SGMM (Articles 11.1, 11.6, 13.7), with 14 days' notice
(Article 12.2). *Under section 8.1 of the Elections Guidelines, it stated
that elections shall be conducted entirely online voting from September 8 -
12, 2025 without a meeting, violating Bylaws requirements.

*PS: *To set the record straight, the ongoing election process is not
consistent with the spirit of the Bylaws in our humble opinion.  PLEASE
TAKE NOTE.

NOTE: The underlying problem statement that led our RIR - AFRINIC to be put
under receivership was that the company lacked a board and a CEO.  In fact
it had directors but they were not enough in terms of numbers to quorate a
board. The Bylaws as is, can fix this problem statement without
constitutional violations.

Cheers,
*Noah Maina*


On Mon, Feb 17, 2025 at 4:17 PM AFRINIC Communication via Announce <
announce at afrinic.net> wrote:

> *AFRICAN NETWORK INFORMATION CENTRE (AfriNIC) Ltd (In Receivership)*,
> previously represented by the Official Receiver and having its registered
> office at 11th Floor, Standard Chartered Tower, Ebene, Mauritius
> (the Company)
>
> I, Mr. Gowtamsingh DABEE ACA FCCA ADIT MBA, a registered insolvency
> practitioner, of GD RICHES Chartered Accountant 5th Floor Green Cross
> Building Belle Rose Quatre Bornes, give notice that on 12th February 2025
> at 1430, I have been appointed Receiver of the above Company in lieu and
> instead of the Official Receiver pursuant to a Court Order issued by the
> Bankruptcy Division of the Supreme Court in application bearing cause
> number SC/COM/MOT/000082/2025 having as aim mandate to secure the assets of
> the Company *and to see to it that the Company’s board is reconstituted
> in accordance with its Bylaws. *
>
> Gowtamsingh Dabee
>
> Registered Insolvency Practitioner
>
> Tel:52579194
>
> E: gdabee at gdriches.mu
>
> This 14th February 2025
> _______________________________________________
> Announce mailing list
> Announce at afrinic.net
> https://lists.afrinic.net/mailman/listinfo/announce
>
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