Posted here on behalf of DotConnectAfrica Trust as rejoinder and reply to Andrew Mark’s recent article.

The attention of DotConnectAfrica Trust has been drawn to a recent Blog article by Mr. Andrew Mark that was published in CircleID (see Out of .Africa - Process Failures Don’t Change the Facts).

In his article, Mr. Mark tried to re-frame the ongoing discussions and commentary about DCA Trust’s recent IRP victory against ICANN as one about “requisite support for geographic string” to assist him reach the biased conclusion that ZACR’s bid has the required support to run .Africa whilst DCA Trust’s bid does not.

In the same tendentious Blog posting, Mr. Mark agrees that the process was indeed flawed and replete with procedural errors; that DCA may have been treated unfairly; the ICANN GAC may have ‘over-reached’ or been vague in its advice to the Board—but still went on to argue that the Geographic Panel should have disqualified DCA long ago.

Before addressing Mr. Mack’s presumptuous ‘enlightened self-interest’ in .Africa, we would like to begin by exposing some of the outright fallacies and illogicalities in Andrew Mark’s Blog article.

1. The first is the assertion that “the ZACR bid had Letters of Support from literally dozens of African countries”

Nothing could be farther from the truth. ZACR never received any letters of support from any African country government in support of its bid. Any such claims that ZACR had dozens of letters of support are indeed specious.

What DotConnectAfrica Trust established long ago is that the African countries through their ccTLD operators and ICT Ministries had provided letters in support of the “African Union Commission’s position” on .Africa—which was to request ICANN to approve the inclusion of .Africa in the Top-Level Reserved Names List—so as to enable the AUC benefit from a special legislative protection that would allow the AUC to delegate .Africa to a structure that the AUC would identify and select (appoint) outside the ICANN new gTLD program. This request was submitted as part of the ‘African Agenda’ to ICANN in October 2011 during the ICANN International Meeting in Dakar, Senegal. DCA Trust had successfully campaigned publicly to oppose the request that was made for the reservation of the .Africa name, which caused ICANN to reject the AUC request; but advised AUC instead to use the Community Objection route and or GAC Policy Advice to influence the delegation outcome of .Africa (please see letter by Crocker of ICANN to Ibrahim of the AUC, 8th March 2012).

Some of the African countries had actually provided such letters that were written to support the “AUC position”, which ZACR then fraudulently appropriated as its own letters of endorsement for .Africa. There is a big difference between letters that are written to support the AUC’s request to have the .Africa name reserved, and letters that would have been ordinarily written by African countries to ICANN to specifically endorse ZACR’s application for .Africa. The letter written by Namibia is a good example of such letters that had been written in support of the AUC’s position on .Africa. These countries never endorsed ZACR. Providing support—whether valid or not - for the .Africa name to be reserved outside ICANN new gTLD policy guidelines is not an endorsement for a geographic name string as stipulated under the new gTLD Program. Therefore, Mr. Andrew Mack did not tell the truth when he wrote that ZACR received letters of support from literally dozens of African countries.

DCA Trust had discovered this falsehood that was being regularly peddled since early 2012 which caused DCA Trust to bring the issue to the attention of ICANN by highlighting the Namibian letter as a good illustration.

Notwithstanding, it was also established during the DCA vs. ICANN IRP that ZACR lacked any letters of endorsement. This explains why ICANN staff were implicated in helping to ‘ghost-write’ another letter of endorsement for the AUC which was later re-submitted to ICANN to enable ZACR’s application to ‘pass’ the Geographic Names Panel evaluation. It is already common knowledge that the details of such irregularities were redacted from the Final IRP Declaration by ICANN staff.

It is therefore quite disingenuous of Mr. Andrew Mack to make the ‘tongue-in-cheek’ remark that “I’ve heard a lot of discussion of the .africa controversy of late—from conspiracy theories to questions about staff competence”.

If ZACR actually had ‘dozens of letters of support’ as Mr. Andrew Mack has falsely claimed, then this issue of ‘ghost-writing’ of a letter of endorsement by ICANN staff for the AUC apparently for the benefit of ZACR would not have arisen during the DCA vs. ICANN IRP.

2. As an individual, Mr. Andrew Mack seems ethically challenged…

In his write-up, Mr. Mack agrees that DCA Trust was treated unfairly, yet advanced the view that DCA Trust should have been disqualified long ago by the Geographic Names Panel. Andrew Mack is probably not aware that unfair and discriminatory treatment needs to be thoroughly redressed for the interest of justice, equity and fairness.

Since something should be done regarding this abysmal level of ignorance and short-coming, Mr. Andrew Mack should perhaps be sentenced to undergo a 6-month course in ‘Ethics’ and another 3-month course in ‘Critical Reasoning’ in order to help complete his education.

3. Mr. Andrew Mack is deeply confused regarding what the DCA vs. ICANN IRP was about

It is quite obvious that Mr. Andrew Mack does not logically understand that if a process was flawed and irregular, the outcome would be absolutely dubious, will not stand to scrutiny, and cannot be vouched for. Nevertheless, amidst all these short-comings and irregularities, Mr. Andrew Mack still advances the notion that “we should move on” by sweeping all these wrongdoings under the carpet. Where is Accountability? Where is Transparency? Where is Probity?

We find it rather troubling that at a time that the Global Internet Community remains seriously concerned and challenged about ICANN’s accountability improvements; and as such concerns have also become inextricably tied to the process of transitioning the IANA technical functions to the Global Multi-stakeholder Community; that wholesale accountability problems that have been uncovered by the DCA vs. ICANN IRP are now being made to look inconsequential by an ethically-challenged ‘self-styled pundit’.

Apparent contradictions notwithstanding, we think that Andrew Mack was intellectually dishonest in his analysis. On one hand Andrew Mack thinks that ‘ICANN needs more accountability’, but his established bias against DCA Trust also makes him to think that ‘ICANN’s policy should be followed’. At what stage did Andrew Mack forget that DCA’s decision to invoke an IRP under ICANN’s accountability mechanism was because ICANN failed to follow its set policy as stated in the new gTLD Guidebook; and the principles enshrined in ICANN’s Bylaws and Articles of Incorporation?

Again, Andrew Mack also posited that the biggest procedural error lies in “ICANN’s simple inability to follow its own policy”, and forgot that it was for this very reason, amongst others, that caused ICANN to lose the DCA vs. ICANN IRP, when the Panel ruled that ICANN broke its Bylaws and Articles of Incorporation, thereby making DotConnectAfrica Trust the prevailing party.

With these types of half-baked opinions, one wonders what type of advice Andrew Mack gives to his clients as the ‘principal’ of AMGlobal Consulting, a company that works “extensively in Africa”.

4. Conclusion

DCA Trust believes that the only end to this controversy is not to “move on” as Andrew Mack has counseled so naively, but for further investigations to be conducted to identify the real culprits who were complicit in this fiasco, and for such individuals to be held accountable. We think that wrong-doing must be punished, and there should be severe penalties for ICANN as the guilty party in the recently decided IRP.

Moreover, it is also our firm belief that ZACR—as the apparent beneficiary of ICANN’s wrong-doing—should be removed completely from the new gTLD Program. ICANN could not have legitimately delegated the .Africa new gTLD string to ZACR at the same time that ICANN was busy breaking its own Bylaws and Articles of Incorporation. The delegation of .Africa to ZACR under a putative new gTLD Registry Agreement that was signed between ICANN and ZACR at a time that ICANN was committing many violations remains legally problematic.

On a day that President Barack Obama told a gathering at the African Union Commission headquarters in Addis Ababa, Ethiopia that Africa should put an end to “the cancer of corruption”, is it not poetic justice of some sort that .Africa, a new gTLD string that Is associated with the continent that is frequently criticized for poor governance and corruption, is now being used as a test case for demonstrating ICANN’s accountability failures?

DCA Trust has always maintained that it is acting based on strong moral convictions, and that truth and justice will ultimately prevail whilst its detractors will encounter failure at their sentinel. These predications have all come to pass, and this possibly explains the level of frustration that Mr. Andrew Mack and his cohort are now feeling in the matter of .Africa new gTLD.

Andrew Mack tried to suggest in a 2012 posting that the DotAfrica application somehow has something to do with the ICANN Africa Strategy. In his article he stated inter alia: “You could also see it in the tremendous enthusiasm for the AUC-endorsed dotAfrica (.africa) application, which has become a real a (sic) focal point of an emerging “African Agenda”.

To Andrew Mack’s chagrin, the African Agenda was never accepted by ICANN, and the same excessive amounts of political and vested group pressures that had been put on ICANN to present the .Africa new gTLD name string as a ‘commitment gift’ to the African Internet community is what ultimately led to ICANN’s accountability failures regarding .Africa.

Andrew Mack’s advocacy on behalf of ZACR can now be dismissed as partisan posturing by another one of those bogus pretenders who claim to ‘know Africa’ very well: “I spoke at the DNS Africa event in Nairobi; I can confirm that there is interest in .Africa, blah blah blah…!”