Summary

  • Eddy Kayihura’s departure on 4 November 2022 changed the state of one specific authority chain: the person named by AFRINIC’s Board no longer occupied the CEO office that Resolution 202108.630 used as its litigation-instruction point.
  • The strongest reading of the 2021 arrangement is operationally benign. Part A retained an experienced legal team, while Part B gave the serving CEO broad power to act and instruct in ongoing and potential litigation. The weakness was not centralisation itself but the absence, in the public chain examined by the court, of a visible succession mechanism for a vacant office.
  • In 2024 SCJ 473, the Court of Civil Appeal treated the resolution’s two parts together and reached a transaction-specific result: with no CEO to mandate the lawyers on the relevant dates, the old resolution did not duly authorise them for the 7 March 2023 application and the 28 September 2023 appeal. The ruling does not invalidate every AFRINIC act, case or instruction after the departure.
  • A resilient private registry should make vacancy an explicit control event. Authority should pause, expire, transfer under a written acting-office rule or be freshly confirmed matter by matter, with a dated acknowledgement from counsel and a completion record that allows continuity to be proved without pretending that silence is succession.

The day one role became four separate facts

The critical event was not a hearing, a Board vote or the filing of an appeal. It was a departure. On 4 November 2022, according to the later judgment, Eddy Kayihura ceased to be AFRINIC’s chief executive officer. Before that date, a natural person and a corporate office coincided: Kayihura was the named individual, and he occupied the CEO position. After that date, the two no longer coincided. The person was no longer the office-holder. The office, the judgment would later record, was vacant on the relevant dates in 2023.

Nothing about that separation dissolved AFRINIC. The company continued to exist. Nor did it make the lawyers named in a 2021 resolution disappear. Counsel could still possess knowledge of the disputes, maintain files, understand procedural history and remain willing to act. The underlying litigations did not vanish either. Yet those forms of continuity did not answer the narrower question that corporate representation eventually forced into view: who, on behalf of the company, could give a valid instruction for the particular act at the particular time?

That question cannot be answered by compressing four roles into a single institutional blur. Kayihura was a natural person. Chief Executive Officer was a corporate office. AFRINIC was the continuing Mauritian private company. Messrs Anwar Moollan and Manon Mardemootoo were the named external legal representatives whose mandates for particular proceedings were later examined. Each could remain connected to the same long-running dispute while occupying a different legal and operational position. The company’s continued existence did not keep a departed person in office. An empty office did not speak.

A continuing retainer did not necessarily authorise every later filing. A lawyer’s professional continuity did not allow the lawyer to manufacture the client’s corporate instruction.

This is why 4 November is best understood as a change of authority state. The question is not whether the company was alive before and after midnight, or whether the dispute was still active. The question is what happened to a Board-created pathway whose operative instruction point was a named person serving in a named office. A sound delegation system should make the result visible: the pathway continues, transfers, pauses or ends. The public chain later tested by the court did not establish an automatic successor for the two transactions before it.

In that bounded sense, the authority silently expired: not because the departure was secret, and not because all corporate power disappeared, but because the old instrument no longer generated proof of a present CEO instruction.

The distinction matters wherever institutions depend on durable technical functions. A registry may carry on allocating staff, maintaining records, answering requests and defending litigation despite changes in leadership. Functional persistence is desirable. But it can tempt observers to assume that all authority attached to the old leadership simply flows into the institution’s continued motion. That assumption confuses operational momentum with delegation.

Some powers belong to the company generally; some belong to a Board or another competent organ; some are placed in an office; some are conferred on a named human being while that person occupies the office; and some belong to an external agent only after a valid instruction. The chain must show which is which.

The narrow 2021 architecture behind the vacancy

The antecedent is Resolution 202108.630, adopted by AFRINIC’s Board on 23 August 2021. Its origin need not be turned into the main story to understand the later break. The official minutes record two connected parts. Part A retained a specified legal team for cases involving AFRINIC and Cloud Innovation Ltd. Part B formally authorised Eddy Mabano Kayihura, identified as AFRINIC’s chief executive officer, to represent and act for AFRINIC in ongoing cases and potential litigation, including by instructing counsel and an attorney-at-law.

The delegation was deliberately broad. It covered litigation and related acts, affidavits, claims and substitution powers. It applied to matters directly or indirectly concerning AFRINIC, whether already under way or still to be lodged. The public resolution register records that the Board took note of a Board Paper on legal cases and legal representations dated 20 August 2021 and resolved in line with its recommendations. The minutes record the resolution as proposed by Oluwaseun Ojedeji, seconded by Habib Youssef and passed with seven yes votes, no no votes and no abstentions.

Those details establish a real corporate act. They do not support a claim that the resolution was defective when adopted. Nor do they suggest that Kayihura lacked authority while he served as CEO. On the contrary, the later court reasoned that while he remained in office he could instruct the named counsel and attorney under the resolution for ongoing or future litigation involving AFRINIC. The problem arose only after the fact that made the architecture’s dependencies visible: the named person ceased to hold the office.

The later judicial reading joined Part A and Part B. Retaining a legal team in Part A was not treated as a free-standing, perpetual power for that team to choose and authenticate every future act in the company’s name. Part B supplied the corporate instruction point. The team was retained; the CEO was authorised to instruct. Together, the parts created speed and breadth, but they also created a dependency. Once no person occupied the CEO office, Part A did not itself fill the vacancy in Part B.

This is the precise sense in which the departure extinguished the old litigation-delegation chain. “Extinguished” here does not describe punishment, confiscation, sovereign cancellation or the disappearance of AFRINIC’s capacity as a company. It describes an evidential end: the 2021 resolution could no longer prove a later CEO instruction when there was no CEO. A different competent source might have authorised a particular act. An acting appointment, a lawful receiver instruction, a court-authorised step, a newly competent Board decision or another valid confirmation could matter if proved within its own scope.

The sealed record does not establish any such source for the identified March application or September appeal, but that absence does not prove that no other authority ever existed for any other matter.

The strongest case for a single instruction point

Before criticising the missing succession mechanism, it is important to state the benign case for the original design at full strength. In August 2021, AFRINIC faced urgent and multiplying litigation. A company in that position has sensible reasons to retain one legal team rather than repeatedly assemble new advisers. Existing counsel can preserve knowledge, reduce duplication, maintain a coherent procedural strategy and respond quickly to deadlines. The Board may also have good reason not to reconvene for every affidavit, substitution or filing.

Giving a serving CEO broad prospective authority can therefore be an efficient allocation of work. It creates one recognisable instruction point. The Board establishes the mandate; the CEO converts corporate purpose into case-specific instructions; counsel executes within professional and procedural duties. The arrangement can reduce ambiguity while the named person remains in office. It can also clarify accountability because a dated instruction can be traced to one office-holder rather than attributed vaguely to “management” or “the organisation.”

The substitution powers recorded in the 2021 minutes fit that operational logic. Litigation changes shape. Lawyers may need to brief others, respond to new claims or address related proceedings. A prospective mandate gives the company flexibility without pretending that every procedural choice can be specified at the outset. Nothing in that design is inherently improper. Indeed, a narrower delegation might have generated delay at exactly the moment that the company sought continuity.

But centralisation creates a single point of failure as well as a single point of accountability. The broader and more useful the serving CEO’s prospective authority is, the more important it becomes to define the state transition when the CEO departs, is incapacitated or the office becomes vacant. The design cannot preserve its virtues by treating the named person, the office and the company as interchangeable. It preserves them by anticipating that those elements will separate.

A fair assessment therefore identifies the omission without rewriting the original act as irrational. The Board could reasonably have prioritised speed, expertise and a clear instruction channel in 2021. The weakness revealed later was that the public authority chain examined by the court did not show what happened to that channel when the office was empty. A design for urgency needs a design for succession. Otherwise, the very provision that eliminates repeated approvals during stable leadership can create a proof gap during transition.

Continuity is not a substitute for agency

Heng Lu’s account of the agency problem in Internet governance provides the clearest way to understand this gap. Authority is reliable when the principal, the agent, the bearer of risk and the record of instruction remain legible. In the 2021 arrangement, the company was the principal, the Board was the organ creating the delegation, the serving CEO was the authorised instruction point, and counsel were external agents for the relevant legal work. Members, the company and those exposed to procedural outcomes bore different parts of the risk. The resolution helped make those relationships readable while its named conditions held.

After 4 November 2022, the labels could remain familiar while the relationship changed. People could still say “AFRINIC’s lawyers” or refer to “the CEO authority.” Yet ordinary language does not answer the agency question. The title “CEO” without an occupant cannot choose a course, communicate instructions or assume responsibility. A former CEO is not the current office. Counsel retained in the past are not the corporate organ that fills the gap. AFRINIC’s continued legal personality means that a principal still exists, but it does not identify which human being or organ presently has authority to cause a particular procedural act.

That is the danger of institutional shorthand. It permits an organisation to look continuous on the surface even as the evidential path from principal to agent has become discontinuous underneath. The resulting problem is not merely semantic. Courts and counterparties must know whether a filing genuinely speaks for the company. Counsel need to know whose instruction they may accept. Directors and office-holders need to know when an earlier allocation of responsibility has ended. Members need confidence that the organisation’s acts can be traced to a competent source without asking them to accept corporate momentum as proof.

The answer is not to abolish delegation or demand direct member participation in every lawsuit. It is to make delegation observable at the moments when its conditions change. A record can be privacy-safe and still state that a mandate was active, paused, transferred, revoked or completed. It need not expose privileged advice, case strategy or confidential communications. What it must not do is force outsiders to infer an authority state from the mere fact that lawyers continued to appear or that a company continued to exist.

NRS reaches the same practical discipline from the perspective of member accountability. Its analysis insists that any alternative source of authority must be proved transaction by transaction. That formulation avoids two opposite errors. One is to assume that the old 2021 resolution automatically validates a later act after its CEO-centred instruction point has gone. The other is to leap from failure of that old chain in two proceedings to the claim that AFRINIC could have no other lawful authority for anything. Proof must be attached to the particular act. The authority may differ by date, matter, competent organ and scope.

This transaction-by-transaction method is demanding, but it is not hostile to institutional continuity. It is what makes continuity credible. If a successor, acting officer, receiver, court or Board has power for a defined act, a dated record can show that power. If none has yet been established, the honest status is pause, not presumption. The company can then repair the chain before procedural value is put at risk.