In the dynamic world of internet governance, the ongoing legal tussle involving AFRINIC, the regional internet registry for Africa and the Indian Ocean Region, has become a focal point of attention. This article seeks to dissect the intricate web of legal proceedings involving Cloud Innovation Ltd and Benjamin Eshun, shedding light on the complex events that have unfolded. The logical and objective aim at the forefront of the litigation is for the reconstitution of the board of directors by way of a membership election. This would benefit the stakeholders and restore AFRINIC to solid governance.
Background
Cloud Innovation Ltd, a Seychelles-based entity, has been a dedicated Resource Member and AFRINIC participant since 2013, operating under a meticulously crafted Registration Service Agreement and guided by the principles enshrined in AFRINIC's Constitution. Cloud Innovation Ltd believes in an equitable and fair process in internet governance.
Eshun is a former director of AFRINIC. His 3-year term started on 18th September 2020, which ceased on 18th September 2023. Eshun was elected to the directorship with 70 votes (i.e. 3% of the total membership). Whilst Eshun was a director, he made numerous attempts to terminate Cloud Innovation’s membership along with other directors. AFRINIC has been marred by years of corruption, scandal and poor governance which is a result of the poor historical management of the organisation. It is this culture and poor management that the members want to end and change.
On the 11th September the court ruled that AFRINIC does not have the requisite directors to form a quorum and so AFRINIC was not allowed to have legal representation as such a decision requires a quorum. Their legal representation was relieved of their post by virtue of the court’s ruling.
Receivership Order
On 12th September 2023, there was a hearing at the Supreme Court of Mauritius (Commercial/Bankruptcy Division). The court duly heard representatives for Cloud Innovation and AFRINIC. It was undisputed at the hearing that there would be no directors in office post 18 September 2023. AFRINIC, serving as the regional internet registry for Africa and the Indian Ocean Region, entered receivership, with the court appointing the Official Receiver to oversee the organisation's affairs. The court appointed the Official Receiver to maintain status quo, organise elections for a new board, and oversee AFRINIC’s assets. This was a welcome decision for AFRINIC and Cloud Innovation Ltd.
The role of an Official Receiver is to maintain the status quo and to protect a company and its assets. Most importantly, organize the election to reconstitute the board of directors and restore AFRINIC from its years long governance failures. This is the objective aim for AFRINIC. As there were no directors from 18th September 2023, there term for the directors had fully ceased.
Purported Appeal
On 28th September 2023 Eshun filed an appeal and secured a stay of the Official Receiver. Thereby stopping the work that the Official Receiver was to promptly carry out. On 24th November 2023, Eshun filed another application to appoint directors, which was rejected. This exact same application was filed on 24th November 2022, which was rejected by the court. This does present a potential abuse of process, as he is insisting going to the Privy Council in London, which is what he very likely wants.
The appeal against the Receivership Order is set to be heard on 25th July 2024 at the Court of Civil Appeal in Mauritius.
Developments
It is clear, based on these facts, that Eshun is adopting a targeted and malicious approach of abusing the court process to stop AFRINIC from having membership elections. As noted above, Eshun was previously voted as director by only 3% of the membership. Therefore, if a membership election model is adopted it is evident that he would not be elected as a director. This clearly shows desperation to hold on to power which Eshun is not entitled to have.
Furthermore, the application which was filed by Eshun on 24th November 2023 was made by him personally, which implicates him as an individual in the proceedings.
Conclusion
Eshun continues to have no legitimate basis on which to carry out activities for and on behalf of AFRINIC as he is no longer a director. This demonstrates that Eshun is acting in defiance of justice and in bad faith. Eshun’s conduct and activities can obviously be viewed as obstructive and potentially damaging to the interests of AFRINIC. He continues to hinder the legal proceedings, interfere with AFRINIC’s operations and potentially jeopardise the organisation’s assets and stability.
Cloud Innovation’s aim, which is also shared by the membership, is for the Official Receiver to proceed with their duties to preserve AFRINIC’s assets, organise a membership election, reconstitute the board of directors and restore stability from years of poor governance from previous organisational management. Eshun is trying to avoid this equitable model of member-based elections, as it is certain he will not be restored as a director. This model of voting crystallises the will and voice of the members and ultimately the people. It is a fair, free and open way of voting which instils good governance and facilitates a great culture for development of AFRINIC. It is the only solution to end the poor governance which has been happening for years. It can be seen that the appeal to the Receivership Order was just a decoy to appoint his own directors and change the by-laws of AFRINIC to meet his own bias desires.
Due to the significant flaw of the appeal to the Receivership Order, the fact that he made the application in a personal capacity with no legal standing to be involved in the matter overall and the fact he is no longer a director, the only logical conclusion that can be drawn is that the appeal will inevitably fail. Even if Eshun wins the appeal in July 2024, AFRINIC will return to being managed without any governance and cannot legally function as a company. This is also the main reason why an Official Receiver will be back.
As a result of the above-noted facts, the very likely and most fair decision due to be made by the court on 25 July 2024 is that the stay be lifted on the Official Receiver. This is the only logical solution. The Official Receiver will then be able to resume the restoration of equitable governance of AFRINIC. The Official Receiver will benefit all the stakeholders, organise a fair and equal membership election, reconstitute a board of directors and restore AFRINIC to excellent and transparent governance for the benefit of all.