[seedig] Official motivated objection regarding the decision of the Election Committee of 26 November 2019 on the proposal of two new members of the SEEDIG Executive Committee

Tue Dec 10 19:33:18 CET 2019

 Dear members of the Election Committee,

I am filing a motivated objection regarding the seconddecision of the Election Committee of 3 December 2019 (hereinafter referred toas ElCom II) not to change its first decision of 26 November 2019 (hereinafterreferred to as ElCom I) for the proposal of two new members of the SEEDIGExecutive Committee in the process of partial elections for the SEEDIGExecutive Committee 2019.

The objection is made on procedural grounds.

   - The Election Committee (hereinafter referred to as ElCom) in its response to my motivated objection filed on 30 November 2019 has not provided responses to all individual objections stated in the filing.
   - Regarding my affiliation and stakeholder group (ElCom II, point 2), the ElCom suggested during the nomination cycle that I should change one or the other. This suggestion was controversial as one should retain its original stakeholder group affiliation when acting in a multistakeholder environment. In particular, if one participates in a multistakeholder initiative as a government stakeholder, his or her stakeholder affiliation should be retained even when representing this initiative in another multistakeholder initiative. Although I changed my stakeholder group affiliation in my nomination voluntarily, this was wrong. More information in this regard is provided in my original objection filed on 30 November (point 4).
   - Furthermore, in response to the claims regarding my affiliation (ElCom II, point 6), I would like to mention that it was clear from both, my nomination and the motivation letter, that my stakeholder group affiliation was government. That was transparent and every member of SEEDIG that read information about the candidates could have seen this. Moreover, the community has known me as a person with the government stakeholder group affiliation. Therefore, the claims by the ElCom that the community members would have voted differently if they had different information were not well grounded.
   - Further to the ElCom elaboration on may stakeholder group affiliation (ElCom II, point 4), the ElCom reasoning that the diversity criteria was not met if I was elected is wrong) and in breach with the ToR. Moreover, if I was elected, all diversity conditions as defined by the ToR would be met:

·        The first diversity condition (Art. 3.2, para.1, pointa) states that the minimum three stakeholder groups are to be representedoverall in the executive committee. This condition is fulfilled even when thereare only three stakeholder groups represented (and one stakeholder group isrepresented by three members). The ToR does not elaborate any further on thiscondition and the ElCom does not have any discretion to interpret the ToR inthis regard, as the interpretation of the ToR is to be at the discretion of theactual Executive Committee (if not otherwise defined in the ToR). If I waselected, this diversity condition, as defined by the ToR, would be met.

·        The second diversity condition (Art. 3.2, para.1,point b) states that preferably each member is to represent a differentcountry. If I was elected, this diversity condition, as defined by the ToR,would be met. Moreover, I have been the only representative from Western Balkancountries among all nominees. By the composition of the executive committee asproposed by the ElCom in its decision ElCom I of 26 November 2019, there wouldbe no member coming from Western Balkan countries.

·        The third diversity condition (Art. 3.2, para.1, pointc) states that there is to be gender balance among the members of the executivecommittee. As already mentioned in my first objection (point 3) filed on 30November 2019, the composition of the executive committee as proposed by theElCom does not meet the gender balance condition (Art. 3.2(c)), which wouldrequire at least 2 male or female members out of five members of the executivecommittee. If I was elected, this diversity condition, as defined by the ToR,would be met.

   - The ElCom further claims that in considering the need for diversity in the executive committee, it needed to follow the order in which the diversity conditions are listed in the ToR (see Art. 3.2: stakeholder, country, gender balance), which is false. Moreover, the decision of the ElCom is in breach with Art 6.31 (para. 1), which states that the conditions from a) to d) (i.e. stakeholder, country, gender balance, total sums of votes) are to be fulfilled cumulatively. That means that each condition has to be fulfilled and there is no hierarchy between them.

6.           As follows from point 4 above, the composition of theexecutive committee as proposed by the ElCom in its decision of         26 November2019 does not cumulatively meet the conditions as defined in Art. 6.31. Theproposal of the ElCom fails         on two conditions, c) and d), as there is no genderbalance and it is possible to compose an executive committee with         more votes from that proposed by the ElCom that also meets all conditions stated in Art6.31 cumulatively. Therefore,         the decisions of the ElCom of 26 November and 3December 2019 are in contradiction with the provisions of the ToR.

 Best Regards

Fotjon Kosta

    On Tuesday, December 3, 2019, 10:23:00 PM GMT+1, Barbara Povse <barbara.povse at arnes.si> wrote:  

Dear Fotjon,

Having carefully reviewed your objection, the Election Committee (ElCom) has decided (by consensus) not to change its previous decision. Our rationale is provided below.  

   - The ElCom thoroughly followed the ToR and acted in good faith throughout the entire process.
   - The ElCom (according to Art. 6.17) has noticed the discrepancy in your self-nomination and kindly asked you to clarify this. As you have indicated yourself, you voluntarily decided to change your SH to civil society. You could have chosen to keep ‘government’ and change your affiliation. But it is not in the mandate of the ElCom to advise the candidate. As you've stated:   
 “As I applied on the last day of the nomination cycle, I could not check properly and consult with the community or get appropriate authorisation to apply, both as government/ministry affiliation and government stakeholder group. So I changed the stakeholder group to civil society, as  in that moment I thought this was the most suitable fix to the issue raised  by the Election Committee. I realised only later that I was wrong..."
   - You have changed your stakeholder group to government in your complaint. If known before elections, this would have made the decision of the ElCom different and easier. But, unfortunately, the ElCom cannot change its decision upon a retroactive clarification. We needed to take a decision upon available data at the time when the decision was made. According to Art 6.31 of the ToR, the ElCom believed that, with 3 members from  the same SH group (civil society), the Executive Committee (ExCom) would have been profoundly unbalanced, as this particular stakeholder group would have had majority on the committee. We therefore considered that the diversity criteria was not being met. Hence our proposal that the candidate with the next higher no. of the votes received (only 1 vote less, that means a Art 6.31. d. has been fulfilled) become an ExCom member. 
   - In considering the need for diversity in the ExCom, the ElCom needed to follow the order in which the diversity criteria are listed in ToR (see Art. 3.2: stakeholder, country, gender balance).
   -  In taking this tough decision, we have followed the precedent set in 2017, when the ElCom made a similar decision by allowing a candidate with less votes to be on the ExCom to achieve more diversity. This is one of the reasons why we strongly believe that we are acting fully in accordance with the ToR.
   - While we understand your clarification regarding your affiliation with the government SH group, this does not change the fact that the process was followed closely. Allowing you to change your affiliation retroactively would mean allowing a change in information that voters took into  account when voting. If they had different information, they might have voted differently. So such a retroactive change is, in our view, not possible. Moreover, if we do so, we risk creating a dangerous precedent for any future elections: it would then be acceptable to change candidate  information after the vote itself.
   - All points above are in response to points 1-5 in your objection. Point 6 does not relate to procedural grounds, so the ElCom has not considered it.

Instruction on legal remedy:

According to art 6.32. - ToR ,  d. If any additional objection is raised, the entire election process is re-initiated. 

On behalf of Elcom,

Barbara Povše

  On 30. 11. 2019 23:27, fotjon kosta wrote:

   Dear members of the Election Committee, 

 I am filing an official motivated objection regarding the decision of the Election Committee of 26 November 2019 on the proposal of two new members of the SEEDIG Executive Committee in the process of partial elections for the SEEDIG Executive Committee 2019.

 The objection is made on procedural grounds.

 1.) As a candidate who received the second highest number of votes, in my opinion, I am eligible to be elected as a member of the  Executive Committee. The Election Committee, in accordance with the rule of law, is obliged to follow the hierarchy of rules as set  in the Terms of Reference (hereinafter referred to as “ToR”) and has no discretion right for an arbitrary decision making nor for arbitrary interpretation of the ToR provisions.

 In accordance with Art. 6.30 of the ToR, the candidates who receive the most votes during the voting process shall become  members of the executive committee, provided that the diversity criteria as defined in Art. 3.2 of the ToR are met.

 In accordance with the election results, the two candidates with the highest number of votes were Ms Olga Kyryliuk with 43 votes  and myself with 18 votes, and accordingly we should become new members of the SEEDIG Executive Committee, provided that the diversity  criteria mentioned in Art. 3.2 of the ToR are met.

 With Ms Kyryliuk and myself being elected into the role of the SEEDIG Executive Committee and by considering also the remaining  members of the Executive Committee, the diversity criteria as defined in Art. 3.2 of the ToR are met as:

a. Minimum three stakeholder groups are represented on the committee;

b. Each member represents a different country;

c. There is gender balance among the members.

 In this case, the composition of the executive committee does reflect stakeholder and country diversity, and gender balance as  defined by the ToR

 2) The actual proposal by the Election Committee is in breach of Art. 6.30 of the ToR and is subsidiary to the main proposal as set in point 1), and is legitimate and in accordance with the ToR if and only if I do not accept the position of the member of the Executive Committee and provided that the proposal is in line with the election results and at the same time with the provisions of the ToR.

 3) The actual proposal by the Election Committee is also in breach of Art 6.31of the ToR as (i) the voting process could lead to  the creation of the Executive Committee that would also reflect the diversity criteria as provided in Art. 3.2 of the ToR, (ii) as the total sum of votes (as received during the voting process) of the proposed executive committee members, based on the highest number of votes, would also be the highest, and (iii) as the proposal of the Election Committee did not meet the gender balance criteria (Art. 3.2(c)), which would require at least 2 male or female members out of five members of the Executive Committee. In Europe, but also in other parts of the world, it is generally accepted that to achieve gender balance in executive bodies at least 40% of both sexes need to be represented. In the case of the SEEDIG Executive Committee, that implies that at least 2 members must be men or women, which is not the case in the actual proposal of the Election Committee, which is therefore in breach of the ToR.

 4) It should also be mentioned, and this could be proved by the correspondence, that in the process of nomination the Election  Committee suggested/informed that I should change my application. Initially, I applied as the Albanian IGF affiliation and the  government stakeholder group. However, I was notified by the Election Committee that (citation):

 “There seems to be one discrepancy in your nomination. We kindly ask you to correct this, to allow us to publish your nomination on the SEEDIG website.

 You have indicated Albania IGF as your affiliation, but you have chosen government as a stakeholder group. Because an IGF  initiative cannot count as a governmental entity, please either indicate a different affiliation or a different stakeholder group, making sure that the two match”.

 As I applied on the last day of the nomination cycle, I could not check properly and consult with the community or get appropriate  authorisation to apply, both as government/ministry affiliation and government stakeholder group. So I changed the stakeholder group to civil society, as in that moment I thought this was the most suitable fix to the issue raised  by the Election Committee. I realised only later that I was wrong as IGF initiatives are multistakeholder bodies and not civil  society. In Albanian IGF, I act as a government stakeholder and this should also be my stakeholder group in SEEDIG. I have been working for the Government of Albania for many years, being involved in the creation and implementation of digital policies, which is also clearly reflected in my nomination for elections 2019, but also in my nominations for elections 2017 and the SEEDIG Ambassadors Programme, and in many of my other contributions to IGF, EuroDIG, ICANN, RIPE NCC, SIF etc. during the last 5 years.

 It is known to the SEEDIG community, and as members of the Election Committee belong to this community it is reasonable to expect that you know as well, that I have always participated in SEEDIG as a government stakeholder, but also with the affiliation of the  Albanian IGF, as from 2017, and I also applied and was selected for the SEEDIG Ambassadors Programme in 2019 as a government stakeholder.

 The fact that I was suggested by the Election Committee also reinforces the rational for my election, as in this case the  Executive Committee would have four stakeholder groups represented. Besides, the Executive Committee would be more gender balanced  and the Western Balkan countries would also be represented in the Executive Committee.

 5) In relation to the above, I would like to remind you all of the 2017 elections, when Ms Kyryliuk had more votes than the person  actually being elected, with rational of the Executive Committee work continuity, but also with more stakeholders represented  in the Executive Committee. 

 6) My references as submitted in the nomination demonstrate my superior qualifications for the position of the member of the  SEEDIG Executive Committee. I have participated in most of the SEEDIG annual meetings and contributed to its work throughout the  years, in 2019 also as a SEEDIG ambassador. Besides, I have been involved in all major Internet governance processes and truly understand multistakeholderism.

   Dear members of the Election Committee, 

As the decision of the Election Committee of 26 November 2019 on the proposal of two new members of the SEEDIG Executive  Committee in the process of partial elections for the SEEDIG Executive Committee 2019 is in breach of the ToR and not in line with the SEEDIG values and principles, I truly believe that you will reconsider your decision.

Thank you in advance for your consideration of my motivated objection.

Best regards,

Fotjon Kosta

PS

I would like to share with you that this letter was written in a very difficult situation for me due to multiple earthquakes that  hit Tirana and the nearby areas, causing dozens of casualties, and due to a difficult situation in the country. However, even in  these difficult moments, I have found motivation to express my interest in becoming a member of the SEEDIG Executive Committee, representing the community that expressed its faith and trust in me, and contributing to the work of SEEDIG. 

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