DotConnectAfrica’s objection application treatment at ICANN and the hands through which the application passed, makes for a very interesting governance case at ICANN. Owing to the highlighted conflict of interest cases in the past, its hard to determine how transparent and impartial it remained in determining the application’s destiny.
At ICANN Board Level:
Advice that was given indirectly to Africa Union by the Board Chair: “While ICANN is not able to offer the specific relief requested in the Communiqué, the robust protections built into the New gTLD Program afford the African Union (and its individual member states), through the Government Advisory Committee, the opportunity to raise concerns that an applicant is seen as potentially sensitive or problematic, or provide direct advice to the Board. In addition, the African Union (and its individual member states) can avail itself of any of the appropriate objection processes mentioned above in the event an application is received for any string – even those beyond representations of .Africa – that may raise concern” Read
At the GAC level, the Beijing Communique that provided a way forward on how the different strings were to be treated by ICANN going forward in the new gTLD Process, came under sharp criticism. There emerged questions as to how GAC arrived at some of the consensus decisions that were reported, one blog said:
“The GAC’s growing self-importance and isolation from the broader community of ICANN stakeholders is threatening to spiral out of control. The only way to stop it now is for the board to get a backbone and reject most of the GAC’s advice. It will provide what we in the educational profession call a “teachable moment” in which they can stand up for predictable due process. They will have support from the community. No less than 8 speakers in the public forum criticized the GAC communique. No one supported the GAC, unless you count a half-hearted plea from board member Mike Silber to recognize how hard the GAC had worked. This drew tepid applause from a smattering of the audience.”
At the Government Advisory Level
Alice Munyua, who served in dual positions, as GAC Vice Chair and Steering Committee (SteerCom) member of the UNIFORUM’s South Africa’s dotafrica project, has also been accused in her activities at GAC, thereby making the decisions in favor of Uniforum, directly jeopardizing DotConnetcAfrica’s application. The steering committee, according to the website,”has been established to provide leadership and oversight over both the application process and the launch of the dotAfrica TLD. ”
It is also reported that Alice used a fraudulent position of VP GAC that has already expired and replaced by Mr. Sammy Buruchara the new GAC Rep from Kenya. During the GAC meeting in Beijing Alice used her influence to oppose DCA’s application, despite the voice of Kenya’s opposition and written memorandum to GAC, which resulted in a consensus advise on DCA’s application.
At the New gTLD Decision Makers Level (A Board Committee)
Members of the New gTLD Program Committee who have alleged conflicts of interests and that rushed to approve GAC Consensus Objection Advice on DCA’s (.africa)
Mike Silber from SouthAfrica and Chris Disspain from Australia are alleged to be conflicted in their positions as illustrated in DotConnectAfrica’s letter to ICANN. Both have updated their Statements of interest (SOI) following the escalation by DotConnectAfrica to the ICANN Ombudsman. Additionally, despite the Ombudsman report that stated during DCA’s filings, “no COI during present gTLD discussion”s, his report clearly stated a warning saying: “It is likely this complaint has led to increased awareness of the possibilities of conflict of interest, which the Board will carefully consider in terms of the existing policy about conflict, when the issue arises. I consider this should continue to be a matter for consideration in gTLD decision making by the Board.” But it seem like the board did not do anything about it.
Other members of the New gTLD committee include, Cherine Chalaby (Chair), Fadi Chehadé (Member), Bill Graham (Member), Olga Madruga-Forti (Member), Erika Mann (Member), Gonzalo Navarro (Member), Ray Plzak (Member), Judith Duavit Vazquez (Member), Kuo-Wei Wu (Member), Heather Dryden (Non Voting Liaison), Thomas Narten (Non Voting Liaison) and Francisco da Silva (Non Voting Liaison)
Finally, the New gTLD Committee Resolution gave its final blow to DCA’s application saying:
“The NGPC accepts this advice. The AGB provides that if “GAC advises ICANN that it is the consensus of the GAC that a particular application should not proceed. This will createA strong presumption for the ICANN Board that the application should not be approved.” (AGB § 3.1) The NGPC directs staff that pursuant to the GAC advice and Section 3.1 of The Applicant Guidebook, Application number 1–‐1165–‐42560 for .africa will not be approved.In accordance with the AGB the applicant may withdraw (pursuant to AGB § 1.5.1) or Seek relief according to ICANN’s accountability mechanisms (see ICANN Bylaws, Articles IV and V) subject to the appropriate standing and procedural requirements.”
During this meeting, it appeared that Fadi Chehadé, Erika Mann and Ray Plzak were not present. From the posted report, the death sentences being given to DCA’s application was via a simple phone call and in disregard to the applicable timeline. DCA also cited this in its consideration letter that the new gTLD committee did not take the appropriate time to review DCA’s GAC objection report, saying:
“We disagree completely with the decision taken by the NGPC (acting as the ICANN Board), regarding our New gTLD application for .Africa (1-1165-42560) that has been conveyed in your Board Resolution dated 4th June 2013.”
Additionally, it faulted the committee noting that:
“We believe that the process that led to the decision was not thorough, and not conscientious enough, and that the resulting decision was not taken in good faith” nothing that a “key procedural pathway was not followed such as procedurally sending it to an outside expert as per gTLD guideline“.
The response continues reiterating “Our understanding is that, ‘the closer look by a neutral’ as encouraged by the 2011 opinion of the WIPO Arbitration and Mediation Center to the ICANN Board is equivalent to consultation with ‘independent experts’, whilst the ‘appropriate corresponding standard’ is equivalent to how the GAC Objection Advice against our .Africa application should have been treated as an ‘Objection’ to be heard in the New gTLD Dispute Resolution Procedure; in which case the opinion of the Independent Expert should have been sought by the ICANN Board regarding our Response to the GAC Objection Advice before any decision was taken by the ICANN New gTLD Program Committee.
Against the backdrop that the New gTLD Program Committee had already tacked a “1A” label against our application, thus indicating “that the NGPC’s proposed (tentative) position appeared to be consistent with GAC Advice as described in the Scorecard”, then the necessary discretion should have been exercised to first of all consult an independent expert (as a neutral party) on the matter before taking a final decision.”
At the Governance Committee Level (A Board Committee)
In a circus of musical chairs, the same members who approved the DCA GAC Objection advise as members of the “new gTLD” committee, are also to review DotConnectAfrica’s reconsideration request as members of the “Board Governance” Committee
Other members that comprise this Board Gov committee although not necessarily conflicted include: Bruce Tonkin who is Chair, Cherine Chalaby (Member), Bertrand de La Chapelle (Member) and Ram Mohan a Non Voting Liaison.
Due to the relations that have been exposed in the implication of conflict of interest through a letter sent to ICANN by DotConnectafrica, its not known how impartial the application reviews and appeals by Dotconnectafrica will be treated in ICANN.
Then back to the New gTLD Decision Makers Level
Increasing the tune of the musical chair, is once the recommendation by the Board Governance Committee is issued for DCA’s reconsideration request, it is routed to go back to the New gTLD committee for a final decision. One wonders why the recommendation is going back to the same committee that gave the original recommendation to adapt the GAC advice. This is surely a circus of a musical chair, which certainly paints ICANN’s governance structure as bleak. For the untrained eye, it all appears legitimate.
The nail in the coffin for DCA’s application was not surprising, when the reconsideration request has come off as negative and ICANN in the latest Approved Resolution from the meeting of the New gTLD Program Committee says “Resolved (2013.08.13.NG04), the New gTLD Program Committee adopts the BGC Recommendation on Reconsideration Request 13-4,”.
Mike Silber is said to have threatened DCA openly that he had been driven to do damage therefore, it is not surprising to see that DCA’s application has already been condemned to the recommendations of the GAC advice and/or New gTLD committee agreement to this advise.
Somehow, despite DCA’s application being handed as a game of musical chairs, I have a feeling that DCA did not call the game over when the music stopped.