DCA Trust who is one of the two applicants for the .africa top level domain whose progress was frozen due to an Independent Review Process (“IRP) which is a proceeding provided for in Article IV, Section 3 of the ICANN Bylaws, where 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.
In March 24 2014 ICANN disregarded the .africa IRP proceedings and signed a contract with ZACR who are competitors for the “.africa” string, leading to the panel to rule in favour of DCA Trust that ICANN should hold all activities related to delegating the .Africa. The panel in their view stated that
“it would be unfair and unjust to deny DCA Trusts request for interim relief when the need for such a relief by DCA Trust arises out of ICANN’s failure to follow its own bylaws and procedures,” it states, further that “ICANN must immediately refrain from any further processing of any application for .africa until this Panel has heard the merits of DCA’s Trust Notice of Independent Review Process and issued its final decision regarding the same”.
Final Ruling: ICANN continue to refrain from delegating the .AFRICA gTLD
In the final ruling the panel reiterated in paragraph 149 that “Furthermore, pursuant to Article IV, Section 3, paragraph 11 (d) of ICANN’s Bylaws, the Panel recommends that ICANN continue to refrain from delegating the .AFRICA gTLD and permit DCA Trust’s application to proceed through the remainder of the new gTLD application process.”
ICANN board considered the IRP ruling and recommended that the .Africa application by DCA Trust be taken back to the initial evaluations.
Discovery Process, ZACR had no endorsements, it was assisted
During the IRP process, at a stage called the discovery process where all documentation related to the .Africa gTLD application from both ZACR and DCA were disclosed, it was discovered that indeed ICANN did assist ZACR to pass its geographical panel, DCA had the same equivalent endorsements but because of ICANN’s favouristism which is against international bids ZACR was allowed to sign a contract that is now illegal and whose value is degraded.
ZACR is a nullity
DCA Trust wrote a response to the ICANN board immediately after the adoption of the IRP panel final report and demanded that “ICANN should immediately remove the ZACR application from the new gTLD Program, as per the reason already adduced.”
The letter also states
Our understanding is that ZACR should be removed immediately from the ICANN new gTLD Program. The fact that ICANN was delegating the .Africa new gTLD to ZACR at a time that ICANN was also violating its Bylaws and Articles of Incorporation indicates that ICANN did not delegate the .Africa new gTLD to ZACR legitimately, since ICANN could not have been acting correctly and lawfully at the same time that it was engaging in actions that led it to break its Bylaws and Articles of Incorporation.
Therefore, ICANN’s delegation of .Africa to ZACR is a nullity, and any juridical proceeding or examination will reach the same understanding.
Since the IRP Panel has already ruled that ICANN should continue to refrain from delegating .Africa to ZACR, we believe that such an injunction/restriction (or restraining order) on ICANN should remain permanent, since ZACR should not be the beneficiary of ICANN’s evident wrong-doing. Moreover, if ICANN was complicit in a wrongful award of the .Africa string to ZACR, the only corrective measure is permanent rescinding of such a wrongful award that ICANN made to ZACR after a Notice of IRP had (already) been filed by DCA Trust.
The status of the ZACR contract contravenes any legal process therefore ICANN should respect international standards and annulled the ZACR contract since it has been found have been procured under controversial circumstances.