“Yedaly Declaration” on .Africa dismissed by US Federal Court as Conflict of Interest!



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On April 12th 2016, The court determining the DotConnectAfrica Trust v. Internet Corporation for Assigned Names and Numbers & ZA Central Registry ruled that it has granted a Preliminary Injunction for DotConnectAfrica, the decision for case no. 16-CV-00862 RGK (JCx) [PDF] on the .Africa new gTLD.

The court gave several reasons to explain why the Court GRANTS Plaintiff’s Motion for Preliminary Injunction.   These include the likelihood of Success on the Merits where the court said

The Release Does Not Bar DCA’s Claim at This Time as it found “serious questions regarding the enforceability of the Release.  Also that  2. There Are Serious Questions as to the Merits of DCA’s Ninth Claim: that…[Cont’d]…. It is clear the decision that ICANN violated its bylaws by failing to fairly review DCA’s application is binding.

The court also found that  (B.) without relief, DCA will likely suffer irreparable harm, (C), The balance of equities tips in favor of granting the preliminary injunction. Without a preliminary injunction, DCA will lose the opportunity to obtain rights to .Africa…(D) The Public Interest Favors Granting Preliminary Injunction, thus the Court accords little weight to the Yedaly Declaration. And lastly, (E.) on Implementing the “Sliding Scale” Approach, …the Court finds “serious questions” going toward DCA’s likelihood of success on the merits and a balance of hardships that tips sharply in DCA’s favour…..[Cont’d]…. As such, the Court GRANTS a preliminary injunction barring ICANN from delegating the rights to .Africa until this case is resolved. 

dotAfrica - Moctar Yedaly

Moctar Yedaly’s declaration has  “little weight” says US Court.

Moctar Yedaly, head of the Information Society Division, of the AUC’s Infrastructure and Energy Department, in his  declaration [PDF, 9.16 MB] to the Court says:

“I have been integrally involved in AUC’s efforts to support the delegation of a .AFRICA top level domain for the African continent.  This initiative is fully endorsed by the African Union and has widespread support across the continent….that the continued delay in the delegation of the .AFRICA gTLD to ZACR has impeded this goal and prejudices the AUC member states  and the African community”

The Court accorded little weight responding:

“The AUC’s relationship with ZACR, and its interest in preventing the delay of issuing rights to .Africa creates a conflict of interest.  Therefore, on this point, the Court accords little weight to the Yedaly Declaration.”

“On balance, the Court finds it more prejudicial to the African community, and the international community in general, if the delegation of .Africa is made prior to a determination on the fairness of the process by which it was delegated.”

Yedaly sent the purported AUC withdrawal letter to Bekele!

Yedaly’s  “integral involvement ” on the .africa case traces back to Bekele’s testimony [PDF, 317 KB] to the .Africa IRP Panel:

… 8 months after receiving the AUC’s endorsement from the Chairman’s office,  a letter was sent to her via email from Moctar Yedaly, a lower, technical operative of the AUC, and not the Chairman’s office, from which the official endorsement had been issued initially…..the AUC letter sent stated that “it would coordinate with ICANN and the relevant stakeholders  ……” 

Not only this letter was legally questionable, as it did not have the proper stamp and signatures, it also put question on ICANN’s role as overseer of the New gTLD Program as an impartial authority,  in consulting and/or assisting  particular prospective new gTLD applicants.

The same facts were then carried over in the current First Amended Complaint (FAC) and the Motion for Preliminary injunction DCA filed in the US Court.

Yedaly commandeered the AUC RFP and ICANN GAC Objections!

In addition,  it has been widely reported that Mr. Yedaly is the same individual who administered the AUC RFP on behalf of the Infrastructure division, commandeering the entire AUC .africa bid process exclusive of the formal internal AUC procurement process, which made DCA Trust shout out in a press release -“DCA Trust raised ethical questions to newly elected AU leaders “ – requesting immediate probe into the matter.   Yedaly was also part of the DotAfricaTaskforce , a.k.a #DotAfricaCabal.  DCA wrote to AUC:

“Unfortunately this RFP process was so problematic that we could not participate.  This decision was taken in light of the original endorsement by your AU predecessor (Jean Ping), the ICANN requirements versus RFP and the need to keep our business plan confidential. Our view was that ICANN had a process to follow and the AU RFP represented a conflicting parallel process. Recognizing the highly technical nature of the bid and the 18 month assessment that ICANN provides indicates that a one month AU process would be a challenge to succeed.  This is further complicated by a review panel which may have drawn from a limited pool of internet experts, who have vested interest in the context of the bidding process and outcome of .africa.

DCA also wrote to  ICANN GAC during its response to the GAC Early warning orchestrated against its own application, but the GAC ignored it.   In its response to ICANN Governmental Committee who try to raise issues on behalf of the AU,  DCA Trust demanded an accountability,  requesting full disclosure over 10 items they listed:

“However, because this matter is of global import, since governmental representatives and diplomatic observers representing international organization from 5 continents are involved in this matter, and GAC Early Warning Advice notices having been issued in the name of ICANN GAC and about 16 African country governments;   we DotConnectAfrica Trust (DCA Trust) Response to the ICANN GAC Early Warning Advice Submitted to the ICANN Board and the ICANN Governmental Advisory Committee (GAC)  5 th Dec. 2012 4  hereby request the African Union Commission to further justify the integrity of the RFP process that it had put in place that led to the selection of UniForum, by publishing for the sake of satisfying openness and transparency in a globally competitive process”

I have also found one of DCA’s open “NO campaign” against this AU RFP process on their site here.   “Our  ‘No Campaign’  is a deliberate effort targeted at those who have been attempting to undermine the Yes2DotAfirca Campaign”, says DCA.

 

Overall, Moctar Yedaly was strongly present at ICANN meetings and vocal in campaigning against DCA’s lack of support by the AUC to ICANN, GAC and the African community, including threatening ICANN at one point in ICANN 50 London 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 adding “…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”

The DCA Trust challenge over this GAC objection resulted in an IRP victory over ICANN.

The dilema over African Government Support for AUC/ZACR vs DCA Trust continues…

Despite the unredacted reports of DCA’s IRP on issue of endorsement show the contrary,  ZACR continue to claim endorsement of  60% from individual African governments.  In reaching out to DCA,  we were directed to their website ‘frequently asked question (FAQ)’ page on .africa  where we have found this statement.

“ZACR does not have any African country support.  Any letter(s) that ZACR had in its possession and submitted at the time of application to ICANN was one garnered by the AUC from individual governments to request from ICANN to “reserve” the .Africa name for the AUC, so as AUC would benefit from special legislation protection from ICANN. as such, it was evident that the letters had not been written to unequivocally endorse ZACR as an applicant for the .Africa string. Therefore, ZACR has misrepresented their application. DCA put a straight forward application that is in complaint with the guidebook.

DotConnectAfrica (DCA) Trust cannot see African governments wanting to support an application that was and continue to be in violation of international policy, as administered by the AUC‘s “Infrastructure Division” who provided leadership on this .Africa administration process on behalf of the AUC.   From the “Reserve Name” request to the “AUC RFP”, and then the “Application submission at ICANN” including the “GAC Objectionthey exercised recklessness and never followed the guidebook as set out by ICANN. 

The African Heads of State and Governments were and are still not properly briefed on the .Africa matter.  DCA has of course briefed the Division on every wrong step it is taking by sending formal letters, however, our voices were ignored.  DCA believes there is a huge lack of understanding and competency on the AUC side to operate this matter independently and the consultation they did with ICANN was very ICANN self serving and self preserving, they failed in all stages of their attempt.  As DCA sees it, the actions of both organizations were not transparent and accountable. They are highly unethical and prejudicial to the African publics. 

That is why DCA believes if the African Governments are briefed well, they cannot support the work of the AUC Infrastructure division.   In fact, they should be asking questions and taking their own actions so that such should never be repeated in Africa again.

Origins of DCA’s AUC endorsement!

In a 2010 Press Release by DCA, titled: African Union endorses the domain name “.Africa” to DotConnectAfrica Organization, we found this.   At the 14th Ordinary Summit of the African Union heads of state and Government that took place in Addis Ababa, Ethiopia, under the theme Information Communication Technology from 25 Jan to 2 Feb 2010 gave endorsement to the “.Africa” domain name.

After a year long due diligence on DCA’s proposal, in 2010, the AU Commissioner African Union Commissionfor Infrastructure H. E. Mrs. Elham Mahmoud Ahmed IBRAHIM, whose organization has the mandate over domain name as an Infrastructure Resource  wrote to DCA saying “we welcome your initiative” and so followed the office of the Chairman of AU, with its full endorsement in writing by the AUC stating:

“The African Union considers introducing the “.africa” domain as a valuable attribute for entities, professionals and corporations active in Africa, empowering those stakeholders who see value in a regional online identity.  The AU would like to express support for the “dotafrica” initiative through which your organization is applying for the delegation of a regional identifier TLD  “.africa” from ICANN and make it available for the Pan-African and African community.

Furthermore H. E. Dr. Jean PING Chairman of the Union wrote:

In this regard, should your initiative require it, the African Union is willing to offer assistance in the coordination of your initiative with African Ministers and Governments” .

After receiving the prestigious Endorsement from the Chairman’s office in October 2009, in a press release communicated by her organization,  Bekele  sent a message to the African leadership “at this historic summit on ICT, the first for the AU” saying:

“African leaders came together again for a common cause; to include Africa in the digital map, and we as African diaspora and our urgent call to our ideas were heard, our efforts were recognized and our proposals accepted.  This is what public service is about, simply and absolutely advancing the interest of the African public. We are very proud and also honored”.

“Known for advocating a common position in her work in Africa, and as the pioneer in pushing for a single “.Africa” initiative“, the press release communique also noted Bekele’s speech at the  Paris ICANN public meeting in 2008,  which was meant to assure the ICANN and African community:

“This is an open group.  Most of the loose-knit “African Internet agencies” do not have the mandate to implement the “.Africa” domain, in fact it is a direct conflict of interest with their established mandates.  So there is no need to complicate the equation”.   We will welcome guidance from all African Internet agencies in our organized effort; as well as the same from our international partners.  

While an African project, the “.Africa” domain is an international contract that requires a globally shared experience.  Africa is directly affected by decisions made on global internet policies. The narrowly defined “internet community” when ICANN was established over a decade ago is no longer inclusive.  Internet use has exploded globally more than 300% since 2000.   In this light, DCA’s stakeholders are much broader,  therefore, the use of the internet or domain names like any system to be built, should be defined by the end-users and not internet technologist.   Let me add that we, the African Diaspora are a big part of the stakeholder ship.  We are the 6th region in the African Union”

As the  battle for .africa continues,  the Yedaly Declaration, which try to demonstrate a key role in the AUC .africa  bid, have now made little impact, as the Court has recognized Conflict of Interest issues more seriously, than ICANN or the handlers of the AUC.

What a bliss and lesson learned for the much conflicted world of ICANN !

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