Summary

  • AFRINIC’s second consultation on the amended Constitution closes on 21 August 2026 at 23:59 UTC; Article 19.6 is a proposal, not an operative or used rule.
  • The draft’s normal Board quorum is a majority and never fewer than five, but an adjourned meeting can proceed with three Directors after more than 24 hours and notice to those absent at adjournment.
  • The three-Director fallback is not new: the current 2020 Constitution already contains it. The draft adds a cross-reference to Article 13.10 but does not explain whether that election-only continuity rule narrows the older fallback.
  • With three eligible Directors present and all voting, an ordinary Board resolution could pass 2-1 unless a higher threshold applies to the matter.
  • Notice, attendance rights, minutes and later publication are real controls. They do not substitute for an express limit on business, an all-Director opportunity to participate, rapid review or Member ratification.

Five at the first meeting, three at the next

The headline threshold in draft Article 19.6 sounds reassuring. A Board meeting requires a majority of Directors, and that majority may never be fewer than five. On a proposed nine-seat Board, five is both a numerical majority and the stated floor.

Paragraph 19.6(a) then changes the executable arithmetic. When quorum is absent, the Directors who are present may adjourn. If the adjournment lasts more than 24 hours, notice must go to the Directors who were absent when the meeting was adjourned. At the adjourned meeting, the Directors present—provided there are at least three—constitute a valid quorum.

Voting rules make the consequence concrete. Every Director has one vote; the Chairperson has no casting vote; and an ordinary resolution passes by a majority of votes cast by eligible Board members. If three eligible Directors attend and all cast a vote, two affirmative votes can carry the resolution. Any special threshold or Member approval elsewhere in the Constitution or Companies Act still applies. The point is narrower: the draft permits ordinary Board business to reach a decision through a smaller body than its opening quorum rule suggests.

This is retained power, not a new invention

The 2026 draft did not create the three-Director route. Current Article 19.6 already contains the same sequence: no business without quorum, adjournment by those present, notice after more than 24 hours, then a valid quorum of not fewer than three.

The draft’s material textual addition is the phrase “Subject to Article 13.10”. That new Article 13.10 addresses a different failure condition. If the number of Directors in office falls below quorum, however few remain are temporarily deemed a quorum solely to organise elections that restore a quorate Board and to handle matters incidental or consequential to those elections. Their exceptional authority ends once quorum is restored.

That is a carefully bounded continuity rule. Article 19.6(a) does not repeat its boundary. It does not say that a three-Director adjourned quorum is limited to elections, urgent preservation or an enumerated list of acts. Nor does “Subject to Article 13.10” expressly state whether the new election-only mechanism displaces, narrows or simply sits alongside the older fallback. The consultation should resolve that relationship in text, not leave it to a future Board or court.

Later minutes do not define present authority

The draft contains safeguards that deserve to be credited. Board meeting notices must identify the time, place and business. Every Director is entitled to attend. Article 19.10 requires accurate minutes, approval at the next meeting and publication of the approved minutes—or an appropriate redacted version—as soon as reasonably practicable. Directors remain subject to statutory duties and matter-specific higher thresholds.

Those protections help create evidence. They do not answer what three Directors may decide before the minutes exist. Publication follows approval at the next succeeding meeting and may be redacted for law, confidentiality, privilege, personal information or commercial sensitivity. The clause supplies no fixed deadline, no immediate necessity certificate and no automatic pause while Members or an independent reviewer test the decision.

The draft also sets a striking comparison inside Article 19 itself. A written resolution requires assent from two-thirds of all Directors entitled to notice. Yet a resolution adopted at an adjourned meeting may rest on the votes cast within a valid three-person quorum. A choice of medium should not quietly determine how much of the Board must participate in a consequential decision.

Mauritius law supplies duties and a restoration route, not an easy verdict

The Companies Act defines a multi-Director Board as Directors not fewer than the required quorum acting together. It places management under the Board, subject to the Act and the company’s Constitution. Its Eighth Schedule says Board quorum is fixed by the Board and otherwise is a majority, and that no business may be transacted without quorum.

Section 136 supplies another response when the number of Directors falls below quorum and constitutional appointment is impossible or impracticable: a shareholder or creditor may ask the Court to appoint one or more Directors, and the Court may do so if it considers that in the company’s interests. That route neither proves Article 19.6 valid nor invalid. It shows that continuity can be restored through an institution outside the diminished Board.

Section 143 also keeps Directors within the Act and Constitution, requires Member authorisation where the law or Constitution demands it, and imposes good-faith, proper-purpose and care duties. A member or debenture holder may seek a declaration or injunction concerning an actual or proposed breach. These are important legal controls. This briefing contains no opinion or judgment applying them to a particular three-Director vote.

A governance benchmark points to a narrower emergency rule

Mauritius’s National Code of Corporate Governance is a nonbinding design benchmark here, not proof of an AFRINIC breach. Its principle on Board composition cautions against domination by one person or a small group. The example Board Charter says a majority of Board members should be present or represented for resolutions.

The same Charter recognises emergencies, but conditions departure from the normal rule on every Board member receiving an opportunity to participate. It also calls for a report by the Chairperson and Company Secretary to be added to the next meeting’s papers. That model connects exceptional power to necessity, participation and a record.

AFRINIC need not copy the model. It should, however, explain why the normal floor is five if three may later decide ordinary business, and write the exceptional scope into the Constitution.

The repair is a bounded continuity licence

Heng Lu’s agency test asks who controls the executable chain rather than who speaks in the name of a community. Under Article 19.6(a), the decisive actors can be the Directors who attend, adjourn, reconvene, form the smaller quorum and cast the votes. Operators and Members bear the continuity and asset consequences; the clause assigns no special downside or restitution rule if the smaller body overreaches.

A precise repair would preserve continuity while limiting control. Restrict the three-Director quorum to named urgent and preservative acts. Require the full agenda and evidence to reach every Director, with a real remote participation opportunity. Make the fallback expire after one meeting or a short fixed period. Publish an immediate certificate stating necessity, scope, tally, dissents and conflicts. Subject material decisions to rapid independent review or Member ratification, and write explicitly how Article 19.6 interacts with the election-only Article 13.10 mechanism.

None of this establishes that a three-Director adjourned meeting has occurred or that any person has acted improperly. The draft cannot retrospectively validate the purported Board, the Receiver, their supporters, the transfer lock-in, historical spending, invoices or BTW’s reported US$1,000 hourly legal-fee term. NRS’s authority and expenditure challenges remain attributed demands rather than adjudicated findings in this fact packet.

The consultation remains open until 21 August at 23:59 UTC. The clean question for Members is not whether AFRINIC needs continuity. It is why a continuity exception should carry an undefined ordinary-business licence.

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Further reading