Summary

  • AFRINIC is accepting comments on its second draft Constitution until 21 August 2026 at 23:59 UTC; the proposal is not yet operative.
  • New Article 17.5 would oblige the Board to appoint an Acting Chief Executive Officer within a “reasonable period” when the office is vacant or the incumbent is temporarily unable to work.
  • The appointment would end when the incumbent returns or a substantive CEO is appointed and assumes office, giving the clause two objective end events.
  • The text sets neither a numerical appointment deadline nor a maximum acting term, and it does not expressly map the acting officer to the CEO’s conflict test, removal threshold, Board seat or Registered Member status.
  • The rationale calls the office “Interim Chief Executive Officer”, while the proposed constitutional clause uses “Acting Chief Executive Officer”.

A continuity rule with an open clock

AFRINIC’s constitutional consultation has put a new executive office on the table. Article 17.5 says that when the chief executive post becomes vacant, or its holder is temporarily unable to perform the job, the Board “shall” appoint an Acting Chief Executive Officer within a reasonable period and on terms it determines.

That is a real continuity safeguard. The present Constitution contains CEO appointment, removal, nationality-exclusion and management provisions, but no acting-CEO clause. The draft would replace silence with an affirmative duty. It would also avoid a wholly discretionary end date: the acting appointment stops when the absent incumbent resumes duties or when a substantive chief executive has been appointed and assumes office.

The difficulty lies between those events. “Reasonable period” is not expressed in days, so it does not tell members how quickly the Board must fill the temporary gap. More importantly, the clause gives no maximum duration once the acting appointment has been made. If recruitment for a substantive CEO stalls, the draft contains no 90-day, six-month or annual point at which the acting mandate expires, requires renewal, or returns to members for scrutiny.

Those are different omissions. One concerns how long a Board may wait before appointing a temporary officer; the other concerns how long that officer may remain. Conflating them would make the consultation less useful.

The window for correcting both closes at 23:59 UTC on 21 August. AFRINIC says it will consider comments, may revise the draft, obtain an independent external legal review, seek Board approval and then put a proposal to members at a Special General Members Meeting. Those are promised process steps, not proof that Article 17.5 has already been adopted.

The draft does not finish the status map

The surrounding provisions make the missing status answer consequential. Article 17.2 says a substantive CEO may be removed, subject to labour law, by two-thirds of all other directors. Article 17.3 bars an appointment when the Board, acting reasonably and in good faith, finds an actual conflict or another circumstance likely to materially impair independent and effective performance. Article 17.4 gives the CEO day-to-day management, bounded remuneration powers, written delegated powers and a direct reporting line to the Board.

Article 17.5 does not expressly say whether the acting officer is screened under Article 17.3 or removed under Article 17.2. It merely says the Board determines the appointment’s terms and conditions. A temporary title should not create uncertainty about whether the substantive independence test follows the functions being exercised.

The ambiguity extends beyond employment. The draft defines “Director” to include the CEO in an ex-officio capacity where context permits. Article 13.3(c) assigns the CEO Seat 9 on the nine-person Board. Article 6.5 says a natural person appointed CEO who assumes office as a director becomes a Registered Member and must be entered in the statutory register. Article 14.1(e) links the CEO’s directorship to the person’s employment as CEO.

Yet Article 17.5 does not say whether an Acting CEO occupies Seat 9, becomes an ex-officio director and Registered Member, or is excluded from all three. That affects quorum, voting, conflicts, statutory filings and the identity of the people through whom corporate power is exercised. The rationale’s use of “Interim CEO” while the operative text says “Acting CEO” adds a drafting mismatch, though the mismatch alone does not make the clause void.

Company law supplies duties, not the missing sentence

Mauritius company law creates an important perimeter. Section 128 can treat a person occupying the position of director—whatever the title—as a director, and brings some recipients of delegated Board powers within specified duties. Section 131 permits delegation but usually keeps the Board responsible unless its statutory belief and monitoring conditions are met. Sections 133 and 134 require a natural person, address disqualification, and require consent and certification before appointment as a director.

Sections 135 and 138 govern appointment and removal in ways that also leave room for the company’s Constitution. Section 142 requires notice to the Registrar of changes in directors and their particulars. Section 143 requires directors to act within the Act and Constitution, honestly, in good faith and with the prescribed care, diligence and skill.

Those provisions may constrain the facts of a future appointment. They do not automatically decide whether the proposed Acting CEO owns Seat 9 or Registered Member status. This report therefore does not declare Article 17.5 illegal, void or incapable of lawful interpretation. It identifies a constitutional question that should be answered in the Constitution instead of left for a disputed Board, future officeholder, Registrar or court to reconstruct later.

A vacancy mechanism cannot cleanse older authority

The timing makes precision more than a drafting preference. NRS disputes the authority of the people AFRINIC currently presents as its Board and has urged members to demand transaction-level records. AFRINIC’s Board page proves whom AFRINIC lists; its court, Board-document and resolution pages prove what the institution published. None of those pages, standing alone, adjudicates every contested appointment or act. This report attributes the NRS position and does not pronounce on litigation that the frozen record does not resolve.

An acting-office clause could nevertheless become an executable bridge through which management authority, delegations and Board participation continue for an indefinite period. Heng Lu’s agency analysis asks who appoints the agent, who monitors the agent and who bears the downside when control is exercised badly. His reality-layer analysis requires a further separation: a consultation draft is text, not law; an institutional webpage is a representation, not a judgment; occupation of an office is not self-proving member authorization.

That means the proposed rule must not be used as a certificate for the past. Adoption of Article 17.5, a later acting appointment, cooperation by a Receiver, endorsement by current supporters or a subsequent member vote cannot by itself retrospectively validate the purported Board, the Receiver, transfer lock-in, historical legal spending, invoices or any separately contested act.

BTW previously reported a legal engagement term of US$1,000 per hour. The fact packet here does not contain complete invoices, time sheets, engagement authority or a final ruling on every payment. The term remains an attributed report, not an adjudicated finding of illegality, fraud or corruption. Each transaction still needs the authority and evidence that existed when it occurred; a new succession clause cannot manufacture that history after the event.

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