Summary

  • AFRINIC’s second consultation on its amended Constitution closes on 21 August 2026 at 23:59 UTC; the draft is not in force.
  • Proposed Article 13.9 would require an election for a casual Board vacancy with more than one year left in the seat’s term.
  • If exactly one year or less remains, the Board could appoint a qualified replacement for the rest of the term.
  • The longer branch improves on current Article 13.14, but the draft sets no measurement date, fixed election deadline, independent classification review, public shortlist or member ratification.
  • Mauritius law allows a Constitution to displace the ordinary-resolution default, so the short appointment is not automatically unlawful; statutory qualification, consent, duty and court-fallback rules remain.

The threshold changes who selects the Director

One day can change the selector under AFRINIC’s proposed Constitution.

Draft Article 13.9 divides casual Board vacancies by the unexpired portion of the seat’s term. If more than one year remains, the Board must cause an election in accordance with the Constitution and Election Guidelines. If one year or less remains, the Board may appoint a qualified person. In both cases, the replacement serves only the balance of the original term.

The longer branch gives members the choice; the shorter gives it to the sitting Board. Exactly one year belongs to the appointment branch, which can cover a third of the draft’s ordinary three-year term.

There is a real safeguard here. Current Article 13.14 lets the Board fill a casual vacancy whenever it considers waiting for the next Annual General Members’ Meeting unreasonable. The appointee stays only until that next AGMM and may then seek election. The new text would guarantee an election when more than one year remains instead of leaving the first response entirely inside Board discretion.

That improvement also makes the one-year line the switch between an executable member vote and a Board appointment.

A clock without a starting point can move the gate

Article 13.9 says the longer-term election must be caused “within a reasonable period of time” and held “as soon as reasonably practicable.” It supplies no number of days for the call, nomination period, ballot, certification or seating.

Nor does it say when the unexpired portion is measured. The natural answer may be the vacancy date, but the text does not rule out a later classification, process opening or appointment date.

That omission matters because time changes the legal branch. A vacancy that begins with slightly more than a year remaining could cross into the appointment window while the Board is deciding what is “reasonable.” The frozen evidence does not show that this has happened, that anyone plans to make it happen or that a current vacancy exists. The defect is prospective: the institution controlling delay should not also control whether delay changes who gets to choose.

A closed rule would publish the vacancy and term-end dates, calculate the remainder immediately, require independent verification and set outer limits for call, nominations, voting, certification and seating. Members or a court also need a substitute trigger if the Board does not act.

The appointment branch has qualification, but no selection record

The shorter branch is not unlimited. Article 13.9 requires a person qualified to hold office. Mauritius Companies Act section 133 supplies disqualification rules. Section 134 requires written consent and certification that the person is not disqualified. Section 143 keeps directors within the Act and Constitution, honest and in good faith, acting for proper purposes with the required care, diligence and skill.

Those are meaningful legal boundaries. They do not answer how the Board chooses among qualified people.

Article 13.9 does not require an open call, a Nomination Committee process, a candidate list, comparative criteria, conflict declarations, recusals or written reasons. It does not require members to ratify the appointment at the next AGMM or SGM. Draft Article 19.10 would improve ordinary Board minutes and publish approved or appropriately redacted versions, but it creates no dedicated clock for publishing the vacancy calculation, shortlist or decision.

Qualification asks whether a person may serve. Accountability asks why this person was selected, who participated, which conflicts were managed and how the choice can be corrected. The draft answers the first more clearly than the second.

Mauritius law does not make the appointment automatically illegal

Section 135(2) of the Companies Act says subsequent directors are appointed by ordinary resolution unless the company’s Constitution otherwise provides. The final words matter. If adopted through a valid process, Article 13.9 would be the constitutional provision supplying the different route.

It would therefore be wrong to report that a Board appointment for a short vacancy is inherently illegal merely because members do not vote. The legal question would depend on the adopted Constitution, statutory requirements, the facts of the vacancy and any court decision. This packet supplies no such application or ruling.

Section 136 permits a shareholder or creditor to seek a court appointment when there are no directors or fewer than quorum and constitutional appointment is impossible or impracticable. Sections 139 and 140 separately address vacancy, earlier liability and the last director. A below-quorum crisis engages distinct draft Article 13.10; the statutory route remains bounded by its own conditions.

Continuity does not prove that members should lose the vote

AFRINIC’s rationale says the Article 13 rewrite is meant to preserve Board continuity, democratic accountability, effectiveness, representation and resilience. Those are AFRINIC’s stated goals, not a factual answer to the selector problem.

AFRINIC’s own 2025 annual report says staff maintained operations for more than three years without a CEO and without a quorate Board. It says critical services were typically above 99.7% availability during 2025. That does not prove Board vacancies can be ignored. It does weaken the claim—if anyone makes it—that every vacancy of one year or less requires member choice to be removed for technical survival.

Continuity and accountability are compatible. A short appointment can use a public call, disclosed candidates, recusals, written reasons, a prompt record and member ratification without forcing a by-election for a seat with days left.

Heng Lu’s reality-layer doctrine makes the test concrete. A consultation does not appoint anyone. An adopted constitutional rule might. A Board resolution might then exercise it. A court might review that exercise. Each layer needs its own authority and record; the language of “community” or “representation” cannot substitute for them.

A future clause cannot cure the disputed past

NRS challenges the authority of AFRINIC’s current purported Board and seeks the authority chain, invoices and legal-expenditure records. LARUS warns of structural control when operators cannot constrain the registry layer. These attributed positions are not court findings.

AFRINIC’s current Board, court, document and resolution pages prove what AFRINIC publishes. They do not finally validate every contested act by the purported Board or Receiver. Nor does proposing a cleaner vacancy rule validate the resource transfer lock-in, supporter positions, historical spending or invoices.

BTW has reported a historical legal engagement term of US$1,000 per hour. That reporting is a reason to insist on visible authority and consequence, not a licence to declare the term adjudicated illegal. Article 13.9 says nothing about those fees and cannot operate backwards.

Before comments close, the repair is straightforward: measure the remainder on the vacancy date; publish the calculation; impose a numerical election calendar; give an independent body authority to confirm the branch; require a public call, shortlist, conflicts and reasons for appointments; and put every short appointment to member ratification at the next meeting.

The draft has improved the route for a vacancy with more than a year left. It should now make the one-year gateway impossible for the selecting Board to move, interpret and document by itself.

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Further reading