Constitution


As Adopted on 03 November 2011. 

Amended on 30 March 2012 and 15 December 2014 and 05 June 2015.


ARTICLE I

Name of Association

To further the purposes set forth herein, the members agree to be, and hereby are, organized under this Constitution as a not-for-profit voluntary association named Code for Africa and hereafter referred to as the ‘Association’.

ARTICLE II

Offices of Association

The Association shall be incorporated in the Republic of South Africa.  The Association may have such other offices elsewhere in Africa or the World as may from time to time be designated by its members or its Board.

ARTICLE III

Objectives and Purpose

The Association is a federation of non-partisan civic data and civic technology organisations.

The Association uses civic technologies and open data to build digital democracies that afford citizens timely and unfettered access to actionable information that empowers them to make informed decisions and that strengthens civic engagement for improved public governance and accountability.

The Association is established as an apex coordinating mechanism for its constituent members and partners.  The Association is intended to spearhead an inclusive, grassroots pan-African movement that supports active citizenry and evidence-based public discourse.  The Association’s primary objectives are based on the following guiding principles:

  1. We show what’s possible.  Digital democracy can be expensive.  The Association seeks to be a catalyst by lowering the political risk of experimentation by creating successful proofs-of-concept for liberating civic data, for building enabling technologies and for pioneering sustainable revenue models.  The Association also seeks to lower the financial costs for technology experimentation by creating and managing ‘shared’ backbone civic technology and by availing resources for rapid innovation.

  1. We empower citizens.  Empowering citizens is central to our theory of change.  Strong democracies rely on engaged citizens who have actionable information and easy-to-use channels for making their will known.  The Associated therefore works primarily with citizen organisations and civic watchdogs, including the media.  We also support government and social enterprises to develop their capacity to meaningfully respond to citizens and to effectively collaborate with citizens.

  1. We are action oriented.  African societies are asymmetric.  The balance of power rests with governments and corporate institutions, at the expense of citizens.  Citizens are treated as passive recipients of consultation or services.  The Association seeks to change this by focusing on actionable data and action-orientated tools that give ‘agency’ to citizens.

  1. We operate in public.  We promote openness in our work and in the work of our partners.  All of our digital tools are open source and all our information is open data.  We actively encourage documentation, sharing, collaboration, and reuse of both our own tools, programmes, and processes, as well as those of partners.

  1. We help build ecosystems.  We actively marshal resources to support the growth of a pan-African ecosystem of civic technologists.  Whenever possible we reuse existing tools, standards and platforms, encouraging integration and extension.  We operate as a pan-African federation of organisations who are active members of a global community, leveraging each other’s knowledge and resources, because all of our work is better if we are all connected.

The activities of the Association shall be held and maintained in the spirit of these guiding principles.

ARTICLE IV

Authority and Powers

The Association is a body corporate with its own legal identity, which is separate from its individual members.  The Association shall continue to exist even if the members change.  The Association may own property, enter into contracts, and sue or be sued in its own name.

The Association, acting through its Board, shall have all the powers necessary for it to carry out its stated objectives effectively including, but are not limited to, a mandate to fundraise, undertake projects, convene events, collect, hold and disseminate information consistent with its purpose, and undertable activities in pursuit of the General Investment and Administrative Powers set out in the attached Schedule A.

ARTICLE V

Non-Profit Distributing Character

The income and property of the Association shall be used solely for the promotion of its stated objectives.

The members and the office-bearers shall have no rights to the property or other assets of the Association solely by virtue of them being members or office-bearers.  No portion of the income or property of the Association shall be paid or distributed directly or indirectly to any person (otherwise than in the ordinary course of undertaking any public benefit activity) nor to any member of the Association nor to its Board nor to any of its Committees, except as:

 

  1. reasonable compensation for services actually rendered to the Association;
  2. reimbursement of actual costs or expenses reasonably incurred on behalf of the Association;
  3. instances where the stated intent of the donor is to make use of the Association to provide funds or resources to specific members or partners for public benefit activities.

Upon the dissolution of the Association, after all debts and commitments have been paid, any remaining assets shall not be paid to or distributed amongst members, but shall be transferred by donation to some other non-profit organisation which the Custodial Board (and failing which any division of the South African High Court) considers appropriate and which has objectives the same or similar to the objectives of the Association, namely:

  1. is a similar public benefit organisation which has been approved in terms of section 30 of the South African Income Tax Act, or or an equivalent ordinance in another country, or;
  2. any institution, board or body which is exempt from tax under the provisions of section 10(1)(cA) of the South African Income Tax Act, or an equivalent ordinance in another country, which has as its sole or principal object the carrying on of any public benefit activity, or;
  3. any department of state or administration in the national or provincial or local sphere of government of the Republic of South Africa as contemplated in section 10(1) (a) or (b) of the South African Income Tax Act, or an equivalent ordinance in another country.

The Association has applied to apply to the Commissioner for the South African Revenue Service for exemption from appropriate taxes and duties.  In compliance with the provisions of the South African Income Tax Act, the provisions set out in the attached Schedule B shall bind the Association and qualify this Constitution.

ARTICLE VI

Authority and Duties of Directors

The Association shall be governed by a custodial Board of Directors, hereafter referred to as the ‘Board’.

The Board is the Association’s primary policy-making body and may exercise all the powers and authority granted to the Association by law.  The Board shall oversee the Association’s operations, and may appoint office bearers, including a Chief Executive Officer / President, to give effect to the Association’s activities or programmes.

The Board shall consider the interests and advice of the Association’s members in executing its authority, by regularly consulting the Members’ Council.  The Members’ Council may, in General Meeting, review, approve or amend any decision taken by the Board but no such resolution of the Association shall invalidate any prior action taken by the Board in accordance with the provisions of this Constitution.

The Board shall further appoint an Advisory Council of public intellectuals and thematic experts to provide advice or other assistance from time to time.

The Board shall be governed by the following bylaws:

  1. Number of Directors.  The Board shall consist of no more than eleven (11) and no fewer than three (3) Directors.  The number of Directors may be increased or decreased from time to time by Board resolution or amendment to these bylaws.  No changes to these bylaws will, however, remove a serving Director from his or her position without their express written consent.  In addition, the Chief Executive Officer (CEO) / president shall serve as an ex officio, voting member of the Board.

  1. Term of Office.  The Board is intended as a custodial body, to hold the Association in trust for members and to provide expert oversight / governance.  As such, the Board is composed of individuals who have been selected for their professional skills in the governance of non profit and / or civic technology organisations.  The first Board of the Association shall consist of those persons named in the Articles of Incorporation.

  1. Composition.  The Board shall comprise:
  1. the Chairperson;
  2. the Vice-Chairperson;
  3. the Treasurer
  4. the Secretary;
  5. the Board may co-opt up to three (3) additional non-voting members as it may consider appropriate from time to time.  The co-opted members shall serve for such period as the Board considers appropriate.

  1. Resignation and Removal.  Resignations are effective upon receipt by the Secretary (or receipt by the Chair or other officer if the Secretary is resigning) of written notification or a later date if provided in the written notification.  One or more Directors may be removed at a meeting called for that purpose, with or without cause, by majority vote of the entire Board.

  1. Vacancies.  Vacancies existing by reason of resignation, death, incapacity, or removal may be filled by the Board.  The Board may also co-opt or appoint additional directors should to meet a skills gap or other strategic purpose, to a maximum of no more than eleven (11) directors.

  1. Meetings.  The Board shall hold at least (1) regular meeting annually, which shall be known as the Annual Meeting, and at least two (2) other regular meetings, evenly spaced and with a majority of directors attending in person or by conference telephone, per calendar year.  Special meetings may be called by any the Chair or by any three (3) directors with telephone or written notice, including notice by electronic mail with delivery service notification.  The notice of any meeting shall state the date, time, and place of such meeting.  If a director fails to attend two (2) consecutive meetings of the Board, the Board shall evaluate the director’s contribution to the work of the Association, his or her reasons for not attending the meetings, as well as any other relevant factors, and if it appears to be in the best interest of the Association, may declare the position vacant.

  1. Meeting Procedures.  The Board shall conduct its meetings and regulate its proceedings as it finds convenient, provided that the Chairperson, or in his or her absence, the Vice-Chairperson, shall chair all meetings of the Board which he or she attends.  In the absence of the Chairperson and the Vice-Chairperson, the remaining members of the Board shall elect a chairperson from those attending.

  1. Waivers of Notice.  Whenever notice is required to be given to any director under any provision of law, or this Constitution, a waiver in writing signed by the director entitled to such notice, whether before or after the time stated therein, shall be the equivalent to the giving of such notice.  The presence of any director at a meeting, in person or by conference telephone, without objection to the lack of notice of the meeting, shall also waive notice by such director.

  1. Quorum and Voting.  Unless a greater proportion is required by law, a quorum shall consist of a majority of the total number of Board members in office.  All decisions will be by majority vote of those present at a meeting at which a quorum is present.  At meetings of the Board each director shall have one (1) vote.  Should there be an equality of votes the Chairperson shall have a casting or second vote.

  1. Resolutions.  A resolution signed by all members of the Board shall be as valid as if passed at a duly convened meeting of the Board.

  1. Record keeping.  Proper minutes shall be kept of the proceedings of the Board, and a record of the persons present at each meeting.  The minutes shall be signed by the directors who chairs the meeting, and shall be available at all times for inspection or copying by any Board directors, and on two (2) days’ notice to the Secretary or his or her deputy, by any member of the Association.

  1. Action Without a Meeting.  Any action required or permitted to be taken at a meeting of the Board (including amendment of this Constitution) or of any committee may be taken without a meeting if all the members of the Board or committee consent in writing to taking the action without a meeting and to approving the specific action.  Such consents shall have the same force and effect as a unanimous vote of the Board or of the committee as the case may be.

  1. Participation in Meeting by Conference Telephone.  Any or all members of the Board may participate in a meeting by conference telephone or video or similar communications equipment, so long as members participating in such meeting can hear one another, and such participation shall constitute presence in person at the meeting.  

  1. Sub-Committees. The Board may delegate any of its powers to any of its directors, or to a special purpose committee.  The director, committee, employee or agent to whom such delegation is made shall conform to any regulations and procedures that may be stipulated by the Board from time to time.

  1. Compensation of Directors.  Directors shall not be compensated for serving on the Board, but Association may reimburse directors for documented reasonable expenses incurred in the performance of their duties to the Association.  In addition, directors who also serve as employees of the Association may be compensated for their service as employees.  There shall be no more than one paid staff member on the Board; this shall be the CEO unless the CEO is not paid, in which case it may be any other Board member. A compensated person serving on the Board shall not serve as the Chair or Treasurer.

ARTICLE VII

Membership Eligibility and Governance

The Association is a voluntary organisation of constituent members.  The Association’s initial members shall be those organisations listed on the attached Schedule C.

Membership shall be regulated by the following bylaws:

  1. Members’ Council.  The CEOs / Executive Directors of member organisations, or their designated representative, shall be entitled one seat each and vote per organisation on a Members’ Council.  The Members’ Council shall meet a minimum of annually, either physically or electronically, to deliberate and advise on the Association’s strategies, activities, and resource plans.

  1. Eligibility for Membership.  The Board may admit further members to the Association from time to time, subject to such applicants meeting the following criteria:

  1. confirmation that the candidate member is a nonpartisan public benefit organisation;
  2. confirmation that the candidate member subscribes to the Association’s guiding principles, as articulated in Article III, for using civic technologies to achieve an informed and active citizenry, and;
  3. due compliance with any conditions of membership (including payment of any membership fees) which the Board may stipulate from time to time.

  1. Termination of Membership.  Once an organization becomes a member of the Association, it shall remain a member unless removed at a meeting called for that purpose, by a majority vote of the Board in accordance with the guiding principles as outlined in Article III.  The Board may suspend or terminate the membership of any member provided that:

  1. At least (14) fourteen days prior written notice is given to all members of the Board of the intention to terminate a membership; and
  2. At least (14) fourteen days prior written notice is given to the member concerned. The notice shall invite the member to make written or verbal representations to the meeting as the member may consider appropriate.

The decision of the Board to admit an applicant to membership, or to suspend or terminate a membership shall lapse unless confirmed by a resolution of two thirds of the members of the Association present at the next session of the Member’s Council.  In the judgment of the majority of the members, the member no longer supports the best interests of the Association.

Neither the Board nor the Association shall be required to give reasons for their decisions with respect to membership.

  1. Special Meetings.  Special meetings of the members may be called by the Chair of the Board of the Association or by a majority of the members.

  1. Place and Time of Meetings.  Meetings of members may be held at such place, within or without the Republic of South Africa, and at such hour as may be fixed in the notice of the meeting.

  1. Notice of Annual and Special Meetings.  An Annual General Meeting of the Association shall be held within a period of fifteen (15) months of the adoption of this Constitution. Subsequent Annual General Meetings shall be held within three (3) months of the end of each financial year.  Written or printed notice stating the place, day, and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than fourteen (14) nor more than fifty (50) days before the date of the meeting, either personally or by mail or email with delivery service notification, by or at the direction of the Chair, the Secretary, or the officers or persons calling the meeting, to each member entitled to vote at such meeting.  

If mailed, notice shall be deemed to be delivered when deposited in the South African Postal Service, postage prepaid, addressed to the member at his/her address as it appears in the records of the Association.  If emailed, notice shall be deemed to be delivered with receipt of delivery service notification.

The accidental omission to address notice/s to any person shall not invalidate the proceedings of any meeting.

  1. Agenda for Annual Meetings.  The business of an Annual General Meeting shall include:

  1. the presentation and adoption of the Annual Report of the Chairperson;
  2. the consideration of the Annual Financial Statements;
  3. the appointment of Auditors;
  4. other matters as may be considered appropriate.

  1. Waivers of Notice.  Whenever notice is required to be given to any member under any provision of law, or this Constitution, a waiver in writing signed by the member entitled to such notice, whether before or after the time stated therein, shall be the equivalent to the giving of such notice.  The presence of any member at a meeting, in person, by conference telephone, or by proxy, without objection to the lack of notice of the meeting, shall also waive notice by such member.

  1. Quorum.  Members having at least a majority of the votes entitled to be cast represented in person or by proxy shall constitute a quorum at a meeting of members for the transaction of any business.  The members present at a duly organized meeting may continue to do business until adjournment, notwithstanding the withdrawal of enough members to leave less than a quorum.

Members who vote by mail, telephone call, telegram, cablegram, electronic mail, or any other means of electronic or telephonic transmission shall be deemed to be present for purposes of consideration of the matters upon which they have voted.

If a meeting cannot be organized because the quorum requirement has not met, those present may adjourn the meeting until a subsequent meeting at which quorum is present, when any business may be transacted that may have been transacted at the meeting as originally called.

  1. Proxies.  A member entitled to vote may vote in person or may authorize another person to act for such member by proxy.  No proxy shall be valid after eleven (11) months from the date of its execution by delivery to the proxy holder, unless otherwise provided in the proxy.  Every proxy shall be revocable at the pleasure of the member executing it, except as otherwise provided by law.

A member or their duly authorized officer, director, employee, or agent, may authorize another person to act for the member as proxy by transmitting or authorizing the transmission of a telephone call, telegram, cablegram electronic mail, or any other means of electronic or telephonic transmission to the person who will be the holder of the proxy, provided that the member shall state or submit information from which it can be determined that the method of voting was authorized by the member.

  1. Vote.  Each member shall have one (1) vote.  Whenever any Association action is to be taken by vote of the members, it shall, except as otherwise required by law or by this Constitution, be authorized by a majority of the votes cast at a meeting of members by the members entitled to vote thereon.

Voting on all matters may be conducted by mail, telephone call, telegram, cablegram electronic mail, or any other means of electronic or telephonic transmission provided that the member shall state, or submit information from which it can be determined that the method of voting chosen was authorized by the member.

  1. Presiding Officer and Secretary.  At any meeting of the members, if neither the Chair of the Board, if any, nor CEO / President, nor a Deputy CEO / Vice-President, nor a person designated by the Board to preside shall be present, the members present shall appoint a presiding officer for the meeting.  If neither the Secretary nor an Assistant Secretary is present, the appointee of the person presiding at the meeting shall act as secretary of the meeting.

  1. Action Without a Meeting.  Any action required by the laws of the Republic of South Africa to be taken at a meeting of the members of the Association or any action which may be taken at a meeting of the members may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the members entitled to vote with respect to the subject matter thereof.  Such consent shall have the same force and effect as a unanimous vote and may be stated as such in any articles or document filed with the applicable laws of the Republic of South Africa.

  1. Meetings by Conference Telephone.  Any or all of the members may participate in a meeting of the members by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and such participation shall constitute presence in person at the meeting.

  1. Record Keeping.  Proper minutes shall be kept of the proceedings of all General Meetings, including a record of all persons present at each meeting.  The minutes shall be signed by the chairperson of the meeting, and shall be available for inspection or copying by any member on two (2) days notice to the Secretary or his or her deputy.

ARTICLE IX

Appointment of Chief Executive Officer

The Board is mandated to appoint a Chief Executive Officer (CEO) / President and other personnel as its deems necessary to fulfill the objections of the Association.

The CEO / President shall have general and active management of the programmes and affairs of the Association and shall see that all orders and resolutions of the Board are carried into effect.  The CEO / President shall perform such other duties and have such other authority and powers as the Board may from time to time prescribe.

The Board may, unless prevented by a contract, these bylaws, or a law, remove such CEO / President at any time with or without cause at a meeting called for that purpose. 

ARTICLE IX

Indemnification

The Association shall indemnify its Board, Advisory Council members, appointed office bearers, and other agents in the matters defined below.

For the purposes of this Article, a ‘matter’ shall be defined as any actual or threatened civil, criminal, or administrative action, arbitration proceeding, claim, suit, proceeding, or appeals therefrom, or any criminal, administrative, or parliamentary (or other body’s) investigation, hearing, or other proceeding.

Office bearers shall, for the purposes of this Article, mean any person who at any time was or is a director, a member of any committee or subcommittee, an officer, an agent, an employee, or a volunteer of the Association.

  1. Right to Indemnification.  Any office bearers made a party to or respondent in a matter by reason of his or her position with or service to the Association shall, to the fullest extent permitted by law, be indemnified by the Association against all liabilities and all expenses reasonably incurred by him or her arising out of or in connection with such matter, except in relation to matters as to which (i) the office bearer failed to act in good faith and for a purpose which he or she reasonably believed to be in the best interests of the Association, (ii) in the case of a criminal matter, the person had reasonable cause to believe that his or her conduct was unlawful, or (iii) the person shall be adjudged to be liable for misconduct or negligence in the performance of a duty. 

  1. Limitation on Right of Indemnification.  Except where an office bearer has been successful on the merits with respect to such matter, any indemnification hereunder shall be made only after (i) the Board (acting by a quorum consisting of directors who were not involved in such matter) determines that the office bearer met the applicable indemnification standard set forth above; or (ii) in the absence of a quorum, a finding is rendered in a written opinion by independent legal counsel that the person or persons met the applicable indemnification standard set forth in paragraph above.

  1. Other Rights.  The right of indemnification provided hereunder shall not be deemed exclusive of any other right to which any person may be entitled in addition to the indemnification provided hereunder.  This indemnification shall in the case of the death of the person entitled to indemnification inure to the benefit of his or her heirs, executors, or other lawful representative.

  1. Interim Indemnification.  The Association shall, with respect to a matter described in above, advance attorneys fees as interim indemnification to any office bearer if the following conditions are satisfied: (i)(a) the Board (acting by a quorum consisting of directors who are not involved in such litigation) determines that the office bearer is likely to meet the applicable indemnification standard set forth above or (b) in the absence of such a quorum, a finding is rendered in a written opinion by independent legal counsel that the office bearer is likely to meet the applicable indemnification standard set forth above; and (ii) the office bearer (a) requests interim indemnification, (b) agrees to repay the interim indemnification promptly upon a determination unfavorable to him or her, and (c) deposits a bond or equivalent security.

  1. Insurance.  The Board shall authorize the purchase of and maintain insurance on behalf of any the Association against any liability asserted against or incurred by office bearers which arise out of such person’s status in such capacity or out of acts taken in such capacity, whether or not the Association would have the power to indemnify the person against that liability under law. 

ARTICLE X

Financial Administration

The Association is constituted in the interests of its members and is underwritten by donors and philanthropists who operate for public benefit.  The Association therefore has a duty to sound financial management.

  1. Fiscal Year.  The Association shall operate with the calendar year as its fiscal year.

  1. Fiscal Agency.  The Association requires robust financial administration systems to ensure that it achieves its objectives.  Development of such systems require considerable time and insight.  The Association therefore appoints the International Center for Journalists (ICFJ) as its fiscal agent for an initial one year.  The terms for the fiscal agency are spelled out in the agreement attached as Schedule D.  The Board will review the fiscal agency after the initial one year, and may renew the agreement for whatever subsequent periods it deems fit thereafter.

  1. Bank Account.  The Board shall open a bank account in the name of the Association with a registered Bank or Building Society.  The Board shall ensure that all monies received by the Association are deposited in the abovementioned bank account as soon as possible after receipt.

  1. Signatures.  All donor contracts, partnership promissory notes and other documents requiring signature on behalf of the Association shall be signed by the Board chairperson.  During the period of the fiscal agency, all cheques or financial transactions shall be signed by both the chairperson and the fiscal agent’s designated representative.

  1. Financial Records.  The Board shall ensure that the Association keeps proper records and books of account which fairly reflect the affairs of the Association.

  1. Annual Narrative Report and Financial Statements.  The Board shall ensure that the Association prepares an annual narrative report describing the Association’s activities and an Annual Financial Statement for each financial year.  The Annual Financial Statements shall conform with generally accepted accounting principles and shall include a statement of income and expenditure and a balance sheet of assets and liabilities.

Within two (2) months after drawing up the Annual Financial Statements, the Board shall ensure that the Association arranges for an accounting officer to certify that the annual financial statements are consistent with the financial records of the Association and that its accounting policies are appropriate and have been appropriately applied in the preparation of its financial statements.

A copy of the Annual Financial Statements and annual narrative report shall be made available to all members as soon as possible after the close of the financial year.

ARTICLE X

Record Keeping and Public Disclosure

The Association subscribes to principles of open and transparent governance, and therefore seeks to manage its affairs in a manner that reflects these principles.

  1. Recordkeeping.  The Secretary or his or her designee shall keep or cause to be kept adequate minutes of all Board or committee meetings, and all meetings of committees with Board-designated powers reflecting at a minimum the names of those in attendance, any resolutions passed, and the outcomes of any votes taken.

  1. Public Disclosure.  After receiving nonprofit recognition of its tax exempt status, the Association shall keep available for public inspection at its principal place of business and any branch office copies of the tax exemption application as filed with the South African Revenue Service and any tax returns filed within the past three years.  Names and identifying information of contributors shall only be redacted from publicly available copies if a compelling case can be made for confidentiality, on a case by case basis.  In addition, as required by the tax code and regulations, the Association shall either (i) make such materials widely available to the public, such as by posting on the Internet, or (ii) provide copies of the materials to any member of the public making a request in person during normal business hours or in writing.  This public disclosure obligation shall be no broader than required by law and shall not apply, for example, if the Association is the target of a campaign of harassment.  

  1. Public Annual Reports.  An annually updated written account of the Association’s purposes, structure, programmes, and financial condition shall be published and made publicly available. The annual report shall contain: 

  1. a description of the Association’s purpose(s);
  2. descriptions of its overall programs, activities, and accomplishments;
  3. a statement of its eligibility to receive deductible contributions;
  4. information about the governing body and structure, including identification of officers, Directors, and chief administrative personnel;
  5. and the audited financial statements or, at a minimum, a comprehensive financial summary that reflects all revenue, reports expenses by program, management, and fundraising categories and reports year-end balances.

ARTICLE XI

Amendments to the Constitution and Dissolution

The terms of this Constitution may be amended, the name of the Association may be changed and the Association may be dissolved by resolution of sixty six percent (66%) of the members present at a General Meeting: provided that proper notice of the meeting is given not less than twenty-eight (28) days prior to the date of the Meeting and such notice states the nature of the resolution to be proposed.

ARTICLE XI

Resolution of Disputes

In the event of a serious disagreement between the members of the Board and/or the Association regarding the interpretation of this constitution then any two (2) Board members or any five (5) members of the Association shall be entitled to declare a dispute.

The procedures for declaring a dispute and resolving the matter are as follows:

  1. Declaration.  Such declaration shall be in writing, state the issue in dispute, and be addressed to the Board.

  1. Board Review.  The Board shall consider such declaration within two (2) weeks of receiving it.  Should the Board not be able to resolve the dispute to the satisfaction of the person(s) declaring it, the dispute shall be referred either to a mediator or arbitrator.

  1. Mediation.  Should the dispute be referred to a mediator, the person(s) declaring the dispute and the Board must agree on a suitable mediator and to the costs of such mediation.  A mediator may recommend an appropriate resolution of the dispute.

  1. Arbitration.  In the absence of agreement regarding a mediator or should mediation not resolve the dispute, the dispute shall be referred to arbitration. The arbitrator shall be such suitably qualified person/s as the person(s) declaring the dispute and the Board may mutually agree. Alternatively, each of the parties shall be entitled to nominate one arbitrator, who shall act jointly with a third person to be nominated jointly by the respective nominees of the parties; on the basis that a majority decision of the appointed arbitrators shall be final and binding.

The arbitration shall be held on an informal basis, and the arbitrator shall have the power to determine the procedure to be adopted subject to principles of natural justice.

The arbitrator may base her/his award not only upon the applicable law but also upon the principles of equity and fairness.

  1. Costs.  The person(s) declaring the dispute and the Board, beforehand, may agree to share the costs of the arbitration. In the absence of such agreement the arbitrator shall decide which parties shall be liable for the costs.

  1. Decisions.  The decision of the arbitrator shall be final and binding upon all parties and capable of being made an Order of Court on application by any of them.

justin-signature.png

_________________

Founder

Code for Africa

Dated: 05 June 2015 (amended)