Saving AFRINIC from itself by Katim Seringe Touray - ITREALMS

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The ongoing legal saga of the African Network Information Centre (AFRINIC), the Regional Internet Registry (RIR) responsible for allocating Internet addresses, including IPv4 addresses, in Africa is at the nexus of business, technology, the law, and international politics, and efforts to resolve it would have to take these issues into account.

In June 2020, AFRINIC started to address the theft of IP addresses and accused Cloud Innovations Ltd. (CIL) of violating AFRINIC’s Registration Service Agreement (RSA) which governs the acceptable use of IP addresses allocated to AFRINIC members. CIL responded and sued AFRINIC in Mauritius, where AFRINIC is based.

The spat caught AFRINIC in a legal snare with CIL and Larus Ltd., both founded by Lu Heng, a Chinese national, filing 33 cases against AFRINIC between March 2021 and September 2022. One of the cases led to the freezing and unfreezing of an AFRINIC bank account, thereby threatening AFRINIC’s operations.

AFRINIC has also had its internal problems, including the resignation in March 2018 of the Chair, and Vice Chair of its board of directors, following allegations of sexual harassment of an AFRINIC staff. AFRINIC got a new CEO, Eddy Kayihura (a Rwandan), in 2019, but he vacated his position because AFRINIC did not have a properly-constituted board to renew his contract.

All of this is being played out in Mauritius, a small island nation in the Indian Ocean, with a population of 1.3 million. Mauritius has been rated as one of the most business-friendly and freest countries in Africa, and was for the 12th consecutive year in 2020 ranked first in Africa, and 13th globally by the World Bank’s Doing Business report. As a result, Mauritius is one of the most popular jurisdictions in the world for setting up off-shore companies.

However, Mauritius has started to lose its shine, with reports that its tax laws and double taxation agreements with about 46 countries help corporations dodge their tax obligations, and deprive many poor countries of valuable tax revenues. Off-shore companies based in Mauritius have also been accused of serving as conduits for illegal financial transfers, and its inadequate transparency requirements for corporate reporting have had a “corrosive” impact on Africa.

Against this background, it is easy to see that a continuation of AFRINIC’s legal woes would increase fears that Mauritius has ceased to be the corporate haven it has been hyped up to be. In addition, the AFRINIC saga can be seen as being at the nexus of business, technology, law, and international politics, and all these issues into consideration in any effort to resolve it.

Business:

The AFRINIC saga is, to varying degrees, an existential threat to AFRNIC itself, CIL, and the reputation of Mauritius as a favorite business hub. Although AFRINIC is still able to pay its staff and continue its operations, it is not certain that it won’t collapse under the weight of the ongoing litigations it is involved in.

For CIL and its partner Laurus, the outcome of its legal war against AFRINIC will have a profound impact on their operations and business ofselling and leasing IPv4 addresses. Simply put, they will both probably go under if AFRINIC repossess the IPv4 addresses allocated to CIL.

The legal woes of AFRINIC could also damage the reputation of Mauritius as an attractive jurisdiction for setting up off-shore companies, which in 2021 contributed 8.6% to the GDP; representing an annual increase of 6.8%. In the same vein, the finance and insurance sector accounted for 14% of the GDP in 2021, representing an annual increase of 4.6%. These benefits also could be jeopardized by AFRNIC’s legal woes, which epitomize the slowness of the Mauritian judicial system.

Technology:

The AFRINIC saga also demonstrates some of the shortcomings of the technologies that underpin the global Internet. This saga would certainly not have happened if IPv6, the replacement of IPv4, was compatible with IPv4. Although the technical community that developed IPv6 to replace IPv4 realized that the two protocols were not compatible, the tools they developed to smooth the transition to IPv6 have not solved all the problems, contributing to the depletion of IPv4 addresses.

Furthermore, the depletion of IPv4 addresses was hastened by their inefficient and inequitable allocation and use, especially around the start of the expansion of the public Internet. For this reason, the allocation of IPv4 addresses was skewed in favor of the ARIN and RIPE, which were established well before AFRINIC and LACNIC. Many of the IPv4 addresses distributed by the RIRs to their members were also wasted because they were distributed in blocks that held more addresses than the recipients needed. If anything, the development of future Internet technologies should learn from the lessons of the transition to IPv6 addresses.

The Law:

The ongoing and seemingly endless spat between CIL and AFRINIC also provides an important window on the Mauritius legal system, and some deficiencies in AFRINIC’s Registration Service Agreement (RSA). Although the Mauritian judicial system provides three dispute resolution methods, large commercial disputes are generally litigated before the Commercial Division of the Supreme Court. Which is why 32 of the 47 cases filed against AFRINIC in Mauritius were filed before the Supreme Court.

The Supreme Court of Mauritius thus has played a huge role in this saga by agreeing to hear this almost endless stream of cases against AFRINIC even though it has powers to refer cases to mediation, and can dismiss cases it considers to vexatious, or an abuse of the process of the court. The Supreme Court did none of that but instead brought AFRINIC to its knees by freezing its bank account and allowing CIL and Laurus Ltd. to abuse the court system by filling cases 31 cases in 19 months against AFRINIC.

The handling of the AFRINIC saga by the Mauritian judiciary flies in the face of the expressed desire of the Mauritius government to uphold its “reputation as a jurisdiction of repute and substance. and threatens the island-nations attractiveness as a corporate haven. On the other hand, AFRINIC’s RSA has not been helpful, because it does not provide for settlement of disputes, as the APNIC Articles of Association, RIPE By-Laws and ARIN RSA do. For this reason, CIL has gone to court at every turn in its dispute with AFRINIC. On the other hand, AFRINIC did not take up CIL’s offer to end their legal fight through mediation because its bylaws do not require it to do so.

International Politics:

The AFRINIC saga also has an international dimension, given that the founder of CIL is from Hong Kong, and that China is working hard to improve its relations with Africa. In addition, the fact that AFRINIC is part of the ICANN ecosystem and ICANN is a US-registered non-profit organization means that its fight against CIL must be seen in the context of souring US-China relations.

Although it is easy to see China-Africa relations in the context of the increase in their trade volume from $11.5 billion in 2002 to $164 billion and $282 billion in 2012, and 2022, respectively, China’s relationship with Africa is deeper than just trade, and has a long history. For one thing, many African countries still remember that China stood by them in their liberation struggles against colonial rule and the Apartheid, while Western countries chose to support those who oppressed and exploited Africans. After all, Nobel Peace Prize laureate Nelson Mandela of South Africa was on the US terrorist watch list until 2008, and former UK Prime Minister Margaret Thatcher termed refused to impose sanctions against Apartheid South Africa, and called Mandela’s organization, the ANC, a “typical terrorist organization.”

Between 2007 and 2020, China invested $23 billion in much-need infrastructure projects in Africa; $8 billion more than the funding from eight other top lenders (including the World Bank, African Development Bank, and US and European development banks) combined. China has also sought to strengthen its ties with Africa through tri-annual Forum on China-Africa Cooperation (FOCAC), which prepares a framework for the programs to be implemented by the two partners.

AFRINIC’s problems can also be seen from the perspective of US-China relations and its impact on ICANN. Although many thought that President Biden was going to defuse the tension created by his predecessor President Trump in US-China relations, the relationship (as it is) has become more contentious. Thus, the 2022 US National Defense Strategy identifies China’s policy as the “most comprehensive and serious challenge to US national security”, and the US government has imposed a series of sanctions on China.

On the other hand, China’s President Xi Jinping recently said that China must achieve self-reliance and strength in science and technology, and pledged to build China’s military into a “great wall of steel.” All this is going on against a backdrop of increasing calls for cybersovereignty which is euphemism for splintering the Internet and threatens ICANN’s multistakeholder model. Last month, China again demonstrated that it has its own ideas about Internet governance by publishing a White Paper “law-based cyberspace governance in the new era.”

Saving AFRINIC:

What now?
Saving AFRINIC will take a lot of effort on many fronts. First, the Mauritius Court should invoke section 136 of the Companies Act 2001, the legal basis of AFRINIC, to appoint additional AFRINIC Directors to get it back on its feet. Once a new board is in place, it should appoint new CEO to take care of the day-to-day operations of the organization. The new CEO can then work with the Mauritius Courts to address the backlog of legal cases against AFRINIC and stop the flow of frivolous cases against it. In this regard, the Mauritius Supreme Court should expedite the hearings or, where appropriate, refer the cases to arbitration.

AFRINIC board should then convene a Special General Meeting to review and amend AFRINIC’S Bylaws, in light of lessons learned from its legal troubles. In the same vein, AFRINIC should get rid of the Council of Elders (COE) who have a sway on the organization, but no accountability. AFRINIC is the only RIR with a COE, as if Africa is the only continent with wise elders.

AFRINIC should also adopt best practices from the bylaws of other RIRs. For example, APNIC’s bylaws provide the official language of the organization, dispute resolution mechanisms, and define the governing law. AFRINIC should also revise its RSA to provide arbitration as the first option for settling disputes with AFRINIC.

African governments also have an important role to play in reviving AFRINIC. The first step in this regard should be for the 46 African members of ICANN’s Government Advisory Committee (GAC), and the 39 African member countries (including Mauritius) of ICANN’s ccNSO to come together and through their governments, work with ICANN and the African Union Commission (AUC), a GAC member, to engage the Mauritius government (a non-GAC member) and China to end AFRINIC’s legal quagmire. The case that needs to be made to Mauritius is that AFRINIC’s legal troubles are not helpful to the development of a stable Internet in Africa, and harms Africa’s reputation in the global Internet governance community. Mauritius should either address the issue expeditiously, or the AUC and ICANN would start looking for another country to host AFRINIC.

African GAC and ccNSO members, through the AUC, should also make the case to China that having a Chinese national holding AFRINIC to ransom compromises China’s commitments in the FOCAC Dakar Plan of Action (2022—2024) that it will support the development of African digital infrastructure. Furthermore, CIL’s endless litigation against AFRINIC contravenes China’s commitments in the China-Africa Cooperation Vision 2035 which calls for Chinese support for the development of digital infrastructure and the digital economy in Africa.

China should then review the CIL cases against AFRINIC in the context of FOCAC Dakar Plan of Action (2022—2024), China-Africa Cooperation Vision 2035, and greater China-Africa cooperation, and ask itself a simple question: does this impasse help or hinder China-Africa relations? If the CIL litigation is, as I think it does, hamper China-Africa cooperation, the Chinese government should work with CIL, the AUC, AFRINIC, and the Mauritius authorities to resolve the pending cases against AFRINIC. But nothing is guaranteed, because given the tensions in US-China relations, and that China has its own ideas about cyberspace governance, China can decide to take a hands-off approach to get back at ICANN, a US-based organization.

Whatever the case, AFRINIC must be brought back on its feet, for the good of the Internet in Africa, and the global Internet at large. Time will tell.

*Contributed by Katim Seringe Touray, International Development Consultant, and writer on science, technology, and global affairs.