After ICANN’s Governmental Advisory Committee (GAC) issued “consensus advice” objecting to DCA Trust’s application, ICANN’s Board summarily awarded the .AFRICA domain to the African Union Commission, DCA Trust’s competitor.
DotConnectAfrica in turn refused to back down and accept the Boards recommendation that it should withdraw its application and instead invoked the last accountability mechanism available to applicants. “The IRP is a proceeding provided for in Article IV, Section 3 of the ICANN Bylaws, by which any person materially affected by a decision or action of the ICANN Board may request that the action be reviewed by an independent third party for consistency with the ICANN Bylaws and/or Articles of Incorporation.
DCA Trust not only emerged the prevailing party of the .Africa DCA Trust Vs ICANN IRP which was binding but it also made history being the premier applicant who successfully contested ICANN’s boards decision and received a binding decision by the IRP Panel. The Panel also further declared that ICANN is to bear, pursuant to Article IV, Section 3, paragraph 18 of the Bylaws, Article 11 of Supplementary Procedures and Article 31 of the ICDR Rules, the totality of the costs of the IRP and the totality of the costs of the IRP Provider.
The history of the .Africa IRP initiated in October 2013 details a series of wins by DCA trust who were able to argue their case properly. The case resulted in the discovery of three factors i.e. that ZA Central Registry (ZACR) lacked any valid endorsements for the .Africa string that it applied for; and that the purported Governmental Advisory Committee Objection Advice against our .Africa application was not by consensus; and that the ICANN Board had seriously erred in accepting the GAC Advice.
DCA Trust was now viewed by most as a formidable party in the IRP based on the history of .africa that has been affected by many controversies including insider dealings where ICANN was found to have aided ZACR’s application even though both the applications lacked the 60% required prerequisite by the Geographic evaluation panel. The details of how ICANN communicated with ZACR, and AUC to procure a doctored endorsement placed ICANN squarely as a dubious organization that takes sides when clearly it is expected to exercise fair competition and promote fair bidding processes.
What therefore are the implications of the DCA Trusts formidable win?
Proof of ICANN’s failing accountability and transparency
ICANN emerged from the IRP as a weak party having been found as an organization whose due diligence over important details of accountability were wanting. ICANN was also found to be promoting anti- competitive practices by favoring and giving one applicant and upper hand over the other. The ICANN board particularly was culpable for promoting undue preference which is against the bylaws of fairness.
This ruling will most certainly be used as a clear proof as to why ICANN’s clamour for independence from the oversight of the US government should not be taken seriously until such a time when the system has been cleaned off of dubious practices.
The Government Advisory Committee, which is a formal advisory body providing input to ICANN took the biggest hit by the Panel who found the advisory body to have made erroneous decisions and therefore passed a political objection that had no rationale to an equally compromised ICANN board that was not diligent to research or question GAC.
GAC has on many occasions been tagged as a stakeholder that does not fit well into the system of the ICANN’s bottom-up, multi-stakeholder policy development process. Many have called for the abolishing the GAC. One Internet governance expert states “The reasons are many. Governments, with their hierarchical structure, cannot easily participate in flexible, working group-type policy development methods. Most governmental representatives simply don’t know enough about the issues ICANN deals with to contribute, and cannot allocate the time needed to participate in the intensive, email-list-based working groups that hash out ICANN policies.” In June 10 2015 a letter written and signed by 11 members of the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet stated that “ICANN’s GAC appears to have overridden several community-developed policies in recent years. Such an outcome is incompatible with the bottom-up, multistakeholder model reflected in ICANN’s Articles of Incorporation and By-Laws.”
.Africa suffered greatly in the dealings of GAC and as a result should not be taken through the process of GAC, other applicants have certainly also been curtailed by ill GAC advices i.e. .Amazon, .gcc among others.
ZA Central Registry (ZACR) will take a fall for being assisted to pass by a dubious process.
The DCA vs ICANN IRP clearly deduced that both applicants did not have the required threshold of endorsements unless the ones from the organizations such as the UNECA were used. ZACR may be negatively affected by being a clear accomplice and beneficiary of ICANN/AUC machinations. This is despite the fact that ICANN rushed to sign a registry contract with the .Africa IRP still in session and resulting in the IRP panel granting a ruling that declared that the .Africa ZACR contract should not be executed until all matters have been solved.
In any event, the .AFRICA is among the most important and precedential IRP declarations ICANN has ever received, it will not only put ICANN in the proper platform for judicial correction but also offer the .Africa applicant DCA Trust a fair chance to prove its ability to run a registry.