DCA’s Bekele Expert Witness Testimony to IRP Panel reveals ZACR lacked Valid Endorsements for its .Africa Application

The DCA Vs ICANN IRP has taken a new turn.  According to the newly published documents that include Ms. Sophia Bekele’s expert testimony and the Second Memorial on the Merits by DCA’s legal representatives, new explosive details have been brought to the fore on how the .Africa new gTLD application was processed.

Bekele has detailed her journey at ICANN, a sojourn of almost 10 years that has turned her into a sort of competent global authority on the ICANN new gTLD Policy Development Process, the new gTLD Application Process, and procedural matters of ICANN’s accountability mechanisms; since she has had reason at one time or the other to engage with the ICANN Ombudsman, the Independent Objector of the ICANN new gTLD Program, the ICANN Government Advisory Committee, ICANN Cooperative Engagement Process (CEP), the Independent Review Process (IRP) Panel, matters of Global Internet Governance, etc.  Only very few people have this type of rounded experience within the global ICANN community.

She was elected to ICANN’s GNSO Council in 2005 where she informed that she was the only African on the GNSO council involved in the New gTD program Policy Development Process.

Furthermore, in her testimony she states that she was instrumental in initiating policy dialogue over internationalized domain names (“IDNs”) where she led an active campaign to introduce IDNs under which new IDNs in Arabic, Cyrillic, Chinese and other non-Latin alphabets would become available, thereby providing non-English/non-Latin language native speakers an opportunity to access and communicate on the Internet in their native languages. Such notable contributions caused the International Domain Resolution Union (IDRU) to strongly endorse the .Africa initiative that she led and promoted at ICANN.

Bekele also notes her involvement at the GNSO Council led to the adoption of policies that created the applicants guidebook for the new gTLDs saying

“In 2008, relying on the work of the GNSO, ICANN’s Board adopted the GNSO’s recommendations for introducing new gTLDs. Ultimately, these recommendations and input from various Internet  stakeholders was brought together in 2011 in ICANN’s gTLD Applicant Guidebook (the “AGB”) and the launch of the New gTLD Program.”

She further testified “I helped develop the rules and requirements for the New gTLD Program and participated in discussions about how to “standardize” the rules to ensure that the process for awarding new gTLDs would be fair, transparent and equitable.

When we were formulating the rules and requirements, we tried to craft the requirements in such a way as to ensure that the application process would be open and competitive, and that applications would be evaluated on the basis of objective criteria”.

In the study of the Memorial submitted by an international law firm Weil, Gotshal & Manges LLP, which represents DCA in the DCA vs. ICANN IRP, there appears to be an anomaly on the endorsement section amongst others.

It appears that ZACR the competing applicant may not have had the endorsements required for the .Africa geographic name and had wrongly used the letters  written for the African Union Commission by African governments regarding the reservation of the .Africa name in the Top-Level Reserved Names List as its letters of endorsements.

The IRP memorial is heavily redacted perhaps due to what could be to be a confidentiality agreement, although such agreements may hardly hold water after the IRP is over, as the panel may decide to make it public. The IRP Panel has stated that they will reserve the right to decide the way the IRP sessions and documentations will be run.

Despite, DCA has always maintained that ZACR did not have any valid endorsements for its .Africa new gTLD application; even in a carefully-worded letter that DCA wrote to ICANN nearly two years ago (before any GAC objections on its application), which for instance cited the letter that was written by the Namibian Network Information Centre as a good example, of  the sort of letter that was written by an African country to support the “AU Position” for the reservation of the .Africa domain name, which ZACR would have falsely appropriated as its own letter of endorsement. (See for example  [https://www.icann.org/en/system/files/correspondence/bekele-to-chehade-crocker-02apr13-en.pdf] ICANN re: Namibian Network Information Centre for more details).

It is quite possible that DCA’s Sophia Bekele is now able to reinforce the same claims with renewed emphasis in her expert Witness Testimony following the exchange of documents that was ordered by the IRP Panel that should take place between DCA and ICANN.

Such a mutual exchange of confidential documents would have no doubt caused the discovery of important evidence regarding ZACR’s lack of endorsements that will further boost DCA’s case against ICANN in the ongoing IRP.

In addition to such glaring irregularities over lack of endorsement by ZACR, it also appears that ICANN played a big part in supporting ZACR’s application against the rules of engagement where ICANN was supposed to be a referee.   The redacted document states

“ICANN not only advised the AUC on how to control the delegation of .ARICA, but it also…. REDACTED…in order to ensure that ZACR’s application would pass review.”

Bekele states in her testimony that

“These purported endorsements actually were letters written in support of the AUC’s request to reserve .AFRICA (something that is not contemplated by the New gTLD Program) and not in any way related to the endorsements required under the AGB for an applicant for a geographic gTLD.

At the time, I was not aware of any African government that had actually endorsed the ZACR application. Not only were the supporters of the “AU position” confused, but the AU itself and supporting entities involved in the project do not seem to have understood that the only entity actually applying for the right to operate .AFRICA was ZACR and not the AUC.”

And further that

“Additionally, it is apparent that UniForum/ZACR relied on purported endorsements — not of its application for .AFRICA—but of the position of the AU on .AFRICA.  This does not meet the requirements of the AGB,….REDACTED…..

Moreover, the endorsements demonstrate that the governments of the African countries expressed support for the AU’s position on reserving the strings for the AU—not for the AU to apply for or designate an applicant for the strings.”

These clarifications therefore put in serious doubt the existence of the said endorsements and ICANN’s strong help to pass ZACR during the evaluation of the applications period that resulted in DCA not receiving  its result on the Geographic panel as it was not completed.  For instance the memorial records

“ICANN Staff’s Efforts To Help ZACR Pass The Geographic Names Review” … After removing DCA from competition for .AFRICA, ICANN decided that..REDACTED… “ . There could have been a rush to aid ZACR’s application as stated here partly unredacted that… “Part of the rush seems to have been acting to move ZACR’s application forward before DCA could react to the quashing of its own application”

The paragraph below from the memorial indicates the ICANN staff activities on the quashing of DCA’s application.

“Moreover, ICANN staff…REDACTED…. to ensure that ZACR, but not DCA, would be able to pass the GNP evaluation, even going so far as to…..REDACTED….. While ICANN staff purported to hold DCA to the strict geographic support requirement set forth in the AGB, once DCA was removed from contention for .AFRICA, ICANN staff…..

After DCA’s application was pulled from processing on 7 June 2013, ICANN staff…..REDACTED.. ..This was a complete change of policy for ICANN, which had insisted (until DCA’s application was no longer being considered) that the AUC endorsement was not material to the geographic requirement.”

It is further indicated in DCA’s memorial that

“The Board itself undertook to promote the AUC’s attempts to secure .AFRICA; and despite repeated notifications submitted by DCA, the Board turned a blind eye to the actions its staff took to ensure that the AUC would prevail in acquiring .AFRICA.”

Outside of this the expert testimony by Bekele also referred to many other issues it complained about ZACR’s application, which ICANN has entirely ignored to give a “pass” to ZACR while objecting to DCA.

A face to face hearing was scheduled on 19- 20 December 2014 [ https://www.icann.org/en/system/files/files/procedural-order-3-05sep14-en.pdf] which according to our sources is now to be rescheduled due to administrative delays occasioned by the resignation of the ICANN appointed Panel member.

The Notice of IRP came after DCA’s dotAfrica application was not allowed to complete processing to the end of Initial Evaluation (IE) by ICANN as a result of GAC Objection, which DCA stated was “unfair, discriminatory, and lacked appropriate due diligence and care” as well as “anti-competitive”.

Thus DCA’s earlier claims of a conspiracy that was orchestrated to fail its .Africa application at the Geographic Names Panel in order to give an unfair advantage to the competing .Africa application submitted by UniForum/ZACR now appears to be further validated by the new evidence uncovered through the IRP accountability mechanism of ICANN.