.Africa gTLD redelegation possible if DotConnectAfrica wins case

The dotAfrica (.Africa) gtld delegation has been faced by so much controversy for some time now. The ruling on the preliminary injunction in January 2017, allowed ICANN to go ahead to delegate the string to ZACR but should DotConnectAfrica Trust prevail at trial, the .Africa string will be re-delegated to DCA.

CIO East Africa carried out an interview with Sophia Bekele, CEO of DotConnectAfrica to get more insights on the state of the .Africa gtld and DCA’s position on the .Africa delegation to ZACR.

Here are the excerpts from the interview:

Q1. What is the status of .Africa at this time?

SB: What we know at this time is that ICANN has decided to delegate the .Africa string to ZACR. You are probably aware this case has been in court during the past year. Initially, we got a preliminary injunction against ICANN in the US Federal Court which stopped the .Africa string from being delegated by ICANN pending the final determination of the law suit. However, the case was later remanded to a California State Court, and we had to re-reply and the motion for preliminary injunction was denied, based on primarily the State Judge giving weight to the waiver DCA signed during application agreeing not to sue ICANN, which the Federal judge saw differently. Following that recent court decision, ICANN has swiftly moved to delegate the .Africa string to ZACR

Q2. So is the law suit over?

SB: No – our legal battle with ICANN is not yet over. The actual merits of the case have to be decided after a proper jury trial. There are many legal processes and procedures that are still pending and yet to be completed. The ruling on the preliminary injunction would only allow ICANN to go ahead to delegate the string to ZACR – but should DCA Trust prevail at trial, the .Africa string will be re-delegated to us.

Q3. Is it possible to re-delegate an awarded new gTLD String?

SB: Yes – it is indeed possible to re-delegate a string, of course, based on a guiding ICANN policy and governing protocols. It has been done in ccTLDs. Moreover, we shall hold on strongly to the reassurances that have been given by the judge in the preliminary injunction ruling wherein it was directly argued that if DCA Trust prevails on the merits of the case during jury trial, that the string will be re-delegated. Even ICANN and ZACR have strenuously argued that the string will be re-delegated in such an eventuality, so there is no question about this.

Q4. How far is DCA Trust willing to go?

SB: DCA Trust intends to go as far as legally possible using available judicial processes within the US legal system. We believe in justice and the rule of law, so we are determined to utilize every legal means possible to ensure that justice is done.

May I also add that more than 16 years ago, earlier in my entrepreneurial journey, I successfully fought and managed to overturn a wrongful project contract that had been awarded by the Ethiopian National Parliament; and got the same contract re-awarded to my company. Therefore, I profoundly believe in the Rule of Law, Equity and Natural Justice, and I remain optimistic that this wrongful delegation that has been made by ICANN to ZACR will be overturned at the end, and the .Africa string re-delegated to DCA Trust.

Q5. What exactly is your case against ICANN?

SB: For the reason that this matter is already in court, I will not say much. However, our case against ICANN is really very simple: Their many wrongdoings committed against DCA Trust, and their unwillingness to properly redress those wrongs remains at the very heart of the dispute.

You may recall that DCA Trust was victorious against ICANN in an Independent Review Panel Process (IRP) that was empowered by ICANN’s Bylaws. In the Final Declaration of the IRP Panel that was issued on 9th July 2015, the Panel of Jurists declared unequivocally that the ICANN Board broke the ICANN Bylaws and Articles of Incorporation with respect to the decisions which the same Board had taken regarding DCA Trust’s .Africa application. Of course, those ICANN Board infractions made DCA Trust to suffer many harms and injuries that were causally related to ICANN Board actions or inactions.

Post IRP, the ICANN Board also failed to address those matters properly. Even though DCA’s application was returned to complete evaluation, the entire process was a whitewash – and ICANN did not take adequate measures to ensure that the re-evaluation was conducted properly. We had a case to call the attention of the ICANN Board to many inappropriate actions that were being done to willfully interfere with due process by different parties that had a vested interest in the outcome of the evaluation. For example, according to the guidebook, no one may contact Evaluation Panels directly, but after DCA Trust’s application was returned for to complete the evaluation, different parties were writing letters directly to the Evaluation Panel to willfully influence the outcome of the evaluation. We thought those actions were quite irregular, and the independence of the Geographic Names Evaluation was seriously undermined.

Unfortunately, many differences of opinion arose between DCA Trust and ICANN going forward after the IRP Final Declaration – which ICANN again failed to address satisfactorily. Therefore, we had no other option than to take the matter to court for adjudication since we have already exhausted all the available paths of seeking relief that have been offered by the ICANN accountability mechanisms such as Re-consideration, Cooperative Engagement Process/Conciliation, and then the Independent Review Panel Process. Mind you, we did not just wake up one day and decided to go to court.

Q6 Against the background that DCA Trust is not supposed to sue ICANN as per the terms of participating in the new gTLD Program, what is your take on this issue?

SB: Yes – we submitted our application to ICANN, and accepted, according to Module 6 of the new gTLD Program Guidebook, the waiver not to sue in court, but to utilize ICANN’s Accountability Mechanisms instead. We abided by that, and as already mentioned, we religiously and patiently followed ICANN’s Accountability Mechanisms to a logical conclusion, but to no avail.

Mind you, while DCA Trust was acting in good faith, and abiding by the stipulations of the new gTLD Program, ICANN was busy acting in bad faith, and inequitably against DCA Trust, and breaking its own Bylaws and Articles of Incorporation; What we know is that ICANN has not been held accountable for its actions so far, and we are now seeking justice through the legal system. We strongly believe that in losing the IRP, ICANN already violated Module 6 in a most unconscionable manner, and the courts should be allowed to decide this matter.

Q7. DCA Trust has been portrayed as instituting a law suit to delay the delegation of .Africa new gTLD – what do you have to say about this?

SB: That is a wrong portrayal by our opponents and is quite regrettable. For several years, DCA Trust has been raising its voice at different forums about the wrong doings and irregularities that have bedeviled the entire .Africa process over the years. Nobody cared to listen.

We are all aware that in international circles, Africa has been largely associated with poor governance and corruption as reasons that have contributed to the under-development of the continent. Is there any wonder that .Africa has also encountered similar setbacks that are fundamentally attributed to issues of bad governance and unfair practices.

Our organization initiated the .Africa gTLD for Africa, led the struggle to promote .Africa and organized a global awareness campaign for it. This was a multi-year effort that was accomplished at great financial cost to our organization, so it makes no sense for us to delay the delegation Despite the issue of the African interest that has been cited at various times we think that serving the interest of justice and fairness is paramount, and should be seen as more important than the apparent rush to delegate .Africa to ZACR amidst a climate of distrust, unfairness, and many apparent due process and legal violations that we have already alluded to.

To quote the judge when granting the Preliminary Injuction, “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. “

The purpose of instituting the law suit against ICANN is to seek justice first of all. The interest of Africans or the African continent cannot be properly served if .Africa new gTLD is delegated to one party, while the other party remains a victim of gross injustice.