Summary

  • AFRINIC’s second consultation on its amended Constitution closes on 21 August 2026 at 23:59 UTC; Article 14.1(c) is a proposal, not an operative or used rule.
  • Members would elect Directors, but two-thirds of all other Directors could end one Director’s term for “justifiable cause”; on a full nine-seat Board, at least six of the eight others would have to vote yes.
  • Adding cause is a real improvement over the current Constitution’s unqualified Board-removal clause, and the draft separately strengthens minutes and conflict policy.
  • Article 14 itself does not define cause or state notice, evidence access, response, hearing, recusal, independent review, a stay, published reasons or Member ratification.
  • Mauritius law provides a separate Member special-resolution route for a private company, subject to its Constitution; the draft does not explain how the two routes interact.

Six votes can reverse a Member election

The proposed Constitution gives Members the right to elect Directors. It also gives the remaining Directors a different power over the same seat: they may end the elected person’s term early.

Article 14.1(c) says removal requires justifiable cause and an affirmative vote of two-thirds of all other Directors. AFRINIC’s proposed Board has nine seats, one of them held by the Chief Executive Officer. If every seat is occupied and an elected Director is the target, eight other Directors remain in the voting pool. Six affirmative votes would meet the threshold.

That arithmetic is a safeguard. A bare majority cannot remove the person, and the target is not counted among the “other Directors” who supply the vote. But the institutional effect remains clear: Members select the seat holder; Board colleagues can terminate the choice without a Member vote under this clause.

The immediate question is therefore not whether a Board should ever remove a Director. It is what must be proved before an internal supermajority can reverse an external electoral result.

The draft improves an even broader current rule

The 2026 proposal did not invent this power. Current Article 14.1(c) already says a Director may be removed by two-thirds of all other Directors. It does not use the words “justifiable cause”.

The draft adds those words. That is a material restraint and deserves credit: a removal would have to rest on a defensible reason rather than the vote alone. The change also sits beside proposed Article 19.10, which requires accurate Board minutes and publication of approved minutes or an appropriate redacted version, and Article 19.13, which requires a company-wide conflict-of-interest policy.

Those controls make the proposed framework better than the present text. They do not answer what Article 14 means by cause or how a contested factual record reaches the vote.

The rationale promises a procedure the clause does not contain

AFRINIC’s explanatory note says Article 14 was revised to clarify the grounds for removal, the procedures to be followed and the respective roles of Members, the Board and other constitutional bodies. It expressly invokes procedural fairness, natural justice and legal certainty, and describes the objective as a fair, transparent and legally robust process.

The operative Article is much shorter. It lists five ways in which a Director’s tenure ends. For the Board-removal branch, it adds “justifiable cause” and retains the two-thirds threshold. It does not define cause, state a materiality test or identify who investigates.

It also does not itself require advance notice, disclosure of allegations and evidence, time to respond, an oral hearing, independent professional advice, removal-specific recusals or a written finding. No independent reviewer or internal appeal is named. There is no brief automatic stay before the vacancy mechanism begins, and no Member ratification after the Board acts.

The difference is not semantic. “Natural justice” in a rationale is an intention. Notice, evidence, response, a neutral decision-maker and review are executable rights only when a Director can invoke them.

General minutes are not a pre-effect remedy

Article 19.10 is significant counterevidence. It would require accurate minutes, approval at the next Board meeting and publication as soon as reasonably practicable. Article 19.13 would require actual, potential and perceived conflicts to be identified and managed through policy.

But approved minutes arrive after a decision and may be redacted for law, confidentiality, legal privilege and sensitive information. The draft gives no removal-specific publication clock or minimum public record for the cause, evidence category, vote count, abstentions, recusals, response and review result.

A conflict policy can tell Directors how to disclose an interest. It does not create an independent fact-finder. A later minute can show that a vote occurred. It cannot restore the lost vote of Members if the removal was wrong and Article 13.9 has already shifted the seat into a replacement process.

Mauritius law supplies another route, not a simple verdict

AFRINIC is framed in the draft as a private company limited by guarantee. Section 138(2) of the Mauritius Companies Act says that, subject to a company’s Constitution, a private-company Director may be removed by special resolution at a meeting called for that purpose. Section 138(3) requires the meeting notice to state that removal is its purpose.

That statutory Member route does not, on this record, automatically invalidate the constitutional Board route. Section 139 recognises vacation of office through the Act or a company Constitution, while preserving liability for acts and decisions made in office. Section 143 continues to require lawful action, good faith, proper purpose, care and diligence.

The drafting problem is that Article 14 does not explain how the routes relate. Does the Board route address urgent or internal cases while Members retain their special-resolution route? What facts amount to cause? Which process applies first? The packet contains no legal opinion or decided removal dispute answering those questions, so it would be wrong to manufacture a verdict.

A Mauritian benchmark shows what could be written down

The National Code of Corporate Governance for Mauritius is a design benchmark here, not a binding classification or a finding that AFRINIC breached a duty. It nevertheless offers a useful procedural sequence.

The Code encourages regular, rigorous evaluation of individual Directors and annual reporting on the evaluation process. It recommends considering an independent external facilitator. For a Director who does not discharge duties, it describes removal after training has failed and after legal and other matters have been considered, led by the Chairperson. It also recommends access to independent professional advice at the organisation’s expense where necessary for a Director’s responsibilities.

Article 14 need not copy that model. But the comparison shows that “justifiable cause” can be converted into a record: prior standard, evaluation, remedial opportunity, independent evidence, legal review, decision and reasons.

Removal should leave a reversible, auditable file

Heng Lu’s agency and reality-layer tests put the emphasis on who controls the executable chain. Here, the same institutional circle can frame the cause, control the evidence and produce the supermajority that ends the term. Operators and Members bear the continuity and trust consequences, while the clause assigns no visible downside to an erroneous decision.

The narrow repair is concrete. Define cause by objective categories and materiality. Require written notice, the evidence relied on, adequate response time and a hearing. Separate investigation from the final vote. Publish a privacy-safe certificate containing the threshold, tally, recusals, reasons and review status. Provide rapid independent review and a short stay. If the Board removes a person whom Members elected, require Member ratification at the next General Members Meeting.

That would not make removal impossible. It would make the power auditable and reversible before the vacancy selector changes the seat.

No future Article 14 can cure a separate authority dispute. Consultation, adoption or a later removal would not retrospectively validate the purported Board, the Receiver, supporters, transfer lock-in, historical expenditure, invoices or BTW’s reported US$1,000 hourly legal-fee term. NRS’s authority and spending challenges remain attributed demands, not adjudicated findings in this packet. Nothing here identifies a current target, vote, retaliatory purpose or misconduct by any Director.

The consultation closes on 21 August at 23:59 UTC. Before Members are asked to approve the Constitution, the promised natural justice should move from the rationale into the rule.

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Further reading