#OMG! Africans want ICANN insiders on Independent Review Panels (IRPs)

Africans represented by African Union Commission at ICANN has come again to show disregard to the importance of following set structures.

The issue at the center of the .Africa domain debate is not so much in the timing of the accountability procedures applied, but time and again it has been shown to be much  on the impatience of the competing party that comprises Africa Union/ ZACR who appear to want a short circuited solution and outcome that could expedite the procedures that emanated from the rushed signing of the contract that resulted in the IRP panel ordering ICANN to cease all processes of .Africa until the case had been determined in mid-July  2015.

The .Africa IRP Panel, while giving an Injunction it requested in its IRP Proceedings ruled : “After having carefully read DCA Trust’s written submissions and the responses filed by ICANN, and after listening to the parties’ respective oral presentations made by telephone on 5 May 2014, for reasons set forth below, the panel is unanimously of the view that a stay ruling in the form described below is in order in this proceeding and 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.”

The Independent Review Panel (“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

The history of trying to short circuiting the system by the delegation represented by AUC and ZACR  dates back to the London ICANN meeting where a member of the ICANN Government Advisory Committee fell short of threatening saying

“ But I think it is time for me to express also the African and African Union Commission’s frustration with regard to the domain name .AFRICA. And then we get into this process which we haven’t understood yet and would love to understand. But what I would like to see here is the accreditation of .AFRICA was based on a decision of the board following a recommendation from the GAC” and further that “The issue of .AFRICA is making Africans so frustrated that at any point of time any decision for the future that would be taken or anything else could be ‐‐ could not get the African support.

Another member Alice Munyua representing the African Union Commission also made a public statement and recommendations to  the Cross Community Working Group  (CCWG) on Enhancing ICANN Accountability stating:

“There is a need to avoid legitimate public policy, commercial and technical objectives, for example from new gTLD applicants in underserved regions, being frustrated by lengthy procedural delays through no fault of those trying to achieve them”.

This voices have been ably rekindled time and again during all ICANN meetings, especially at the GAC led committee meetings where members have been known to ask about the status.  In the just ended ICANN 53 in Buenos Aires, Alice Munyua again warned of shortcomings of the IRP processes when making these processes a core ICANN accountability mechanism after the IANA transition.

Her comment that  “We need to have a panel that does understand not only the ICANN processes and mechanisms and policies, but also can contextualize everything with regard to the area,”  seems harmless but in actual sense will be counteractive to the meaning of an independent panel.  The understanding of internet governance and internet development must not always be equated to being an ICANN insider.

What has always lacked in ICANN’s processes is the separation of processes for the sake of pure independence, the overlapping roles of people advising ICANN have often closed in the separation line.   At the level of the board it has been called “conflict of interest” and thereafter the assertion that IRP panels be required to know about ICANN as opposed to internet governance is a fallacy that must be corrected and put in context in the new IANA transition model design.

Here are some of the ICANN meeting comments that show the need for more awareness of the independent ICANN processes such as the last resort IRP that now has about 12 cases including .Amazon, Booking.Com and .africa.

 ICANN 53 Transcript portion:

African Union Commission: Thank you, Thomas. Maybe if we could get some update from the board before i convey the message of the african union commission to the board itself and to the GAC is there any way to have any update on that, please?

Cherine Chalaby: this is in relation to .africa, as you know, there is an IRP process going through. i was a witness at this IRP process. It took place, I think, in May, about a month ago, and we’re just expecting the result and deliberation of the RIP panel. It could be in a month or two, I don’t really know, it’s in their hand. But as far as the proceedings, it’s done and they are now just considering their decision.

Chair Schneider: Thank you
African Union Commission: Thank you, Thomas.
I will speak in French, and perhaps this is easier for me, so I will give you some time to put your head sets.
Thank you very much. Mr. Chairman of the ICANN board, members of the icann board, it’s always a pleasure for me to meet you, it’s enriching, in fact today I will save you some time and I will not go into the history of this project that is vital for Africa, but I will take advantage of this opportunity to thank all of you who had contributed to this process and to move forward. I would particularly like to thank the members and colleagues of GAC, because they have unanimously supported this process and based on their decision, now we have a contract signed between ICANN and the operator appointed by the commission of the African Union, this is very important contribution.
More than one year ago, we have signed an agreement between our operator and ICANN. This agreement has not been put in practice yet, as affected parties, we are internally — in an internal process that was brought by a third party, but unfortunately, as an affected party, we cannot influence in this process as we should.

And in another session:

Chair Schneider: Thank you. I have one more request for the floor from the African Union Commission.

African Union Commission: I’m sorry to hold you. One of my concerns is not only with regard to the composition of the members of the panel. It’s not only the geographical distribution about — of the members. But one other problem is their competency, too. In the case of .africa, we have seen the panel asking some questions that are not very relevant to the process itself. And you find yourself people dragging the process and hijacking it in a manner that is not beneficial for the ICANN process at all. So one of the issue need to take into consideration is, we need to have a panel who does understand not only the icann processes and mechanisms and policies, but also can contextualize everything with regard to the area which is actually being considered. This is very important. And my other concern will be with regard to the fact that from now on, their decision could be some kind of binding the board or taking some kind of decision. Auditing is auditing, if i may say. But hijacking the system, anybody should — they can stand up and say, “i need an irp process,” and then hijack everything, and finally we get into something that is not relevant to anybody.  Please consider that.
Therefore from all this infers that Africa can do more help to itself by learning and respecting institutional procedures.