COMPETITION LAW DEVELOPMENTS IN AFRICA

By Tamara Dini Monday, December 05, 2016
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Competition law in Africa is becoming increasingly active and, in certain respects, complex. The number of competition regimes, and the relationships between them, is on the increase. Over the past 18 months, more than 10 memoranda of understanding (MoUs) have been signed by 25 competition regulators in Africa and BRICS, to facilitate the cooperation between competition regimes on issues of competition policy and enforcement. Regular contact between competition agencies occurs and in some instances, dedicated desk officers coordinate communication.

Competition regulatory development in Africa is ongoing. During the past year, various authorities have introduced new or amended competition laws, regulations, guidelines and/or policies. These include the Common Market for Eastern and Southern Africa (COMESA) (draft guidelines on restrictive practices and abuse of dominance), Egypt (new Regulations), Kenya (Competition Amendment Bill and draft exemption fee guidelines), Morocco (new Competition Law), Namibia (thresholds and restrictive practices guidelines), Nigeria (two separate competition bills and a draft Companies and Allied Matters bill), South Africa (certain parts of the Competition Amendment Act and public interest guidelines), Zambia (merger guidelines) and Zimbabwe (draft competition policy). In some instances, a stricter enforcement of current provisions in existing competition laws has been observed. Two new competition agencies, the Madagascar Competition Council and the Morocco Competition Council, have commenced operations. The Mozambique Competition Regulatory Authority is reportedly close to becoming operational.

Both the Kenyan Competition Authority and the Namibian Competition Commission conducted their first dawn raids in 2016. To our knowledge, legislation and/or policies of 13 competition jurisdictions in Africa now make provision for the granting of corporate leniency for cartel conduct.

The development of regional competition regimes is well on track. In the past year, the COMESA Competition Commission (CCC) has gone from strength to strength. It crossed the 100 merger mark in just over three years. Most of these mergers have occurred in the construction, information, telecommunications and financial services sectors. Conditions have been imposed in certain cases, so as to remedy the CCC’s concerns in respect of competition and/or public interest outcomes resulting from transactions.

The CCC has started to put in place measures for the consideration of conduct cases. Among others, the CCC “workshopped” a number of draft guidelines with regulators and practitioners in Africa in 2016. Also during 2016, the CCC engaged actively with judges and other decision-makers of member and non-member states on the development of a common approach to competition law enforcement, based on the COMESA Treaty and global competition statutes.

Further, the Competition Authority of the Central African Monetary and Economic Community (CEMAC) (headquartered in Bangui, Central African Republic) has started to accept merger filings. The ad hoc Competition Authority of the East African Community (EAC) (headquartered in Arusha, Tanzania) has been established and Commissioners have been appointed. An MoU has been entered into and signed by ten of the 15 competition authorities of the South African Development Community.

The consideration of mergers from both a competition and public interest perspective is becoming increasingly prevalent in Africa, with the recognition of the relationship between competition, trade and economic growth gaining traction across the Continent.

* Odie Strydom, Knowledge Consultant, Competition Law Practice Group, Bowmans