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Competition regulators in Africa demand respect

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Africa’s developing economies present a compelling proposition for investors and companies that wish to expand their horizons and tap new markets.

Some expect African consumer spending to reach the $1.5 trillion (R15.6 trillion) mark by 2020; others project sub-Saharan Africa’s gross domestic product will surpass China’s within a decade.

Tempering the obvious opportunities are numerous challenges: different languages, legal systems, cultures and levels of economic sophistication, together with social and political flux. They all combine with the sheer size of the continent to indicate a clear need for due diligence when contemplating a push into Africa.

The first scramble for Africa at the end of the 19th century was characterised by a distinct lack of rules and regulations, with colonists making things up as they went along.

However, one legacy of the colonial era is an abiding taste for bureaucracy. This time around, those wishing to stake a claim will need to do so within a regulatory paradigm jealously guarded by the state. One particular area of burgeoning regulation is competition law.

The rationale for competition regulation in Africa lies somewhere between a hunger for foreign currency and a genuine desire to ensure that fledgling but growing economies are responsibly cultivated and free from abuse, monopolisation and extractive foreign investment policies.

Between 1990 and 2013, 26 African countries enacted dedicated competition law regimes, and that number continues to grow.

Of these, many previously “toothless” enforcers are now gearing up actually to administer the law, spurred on by treaty obligations, international best practice and the support of global networks such as the Organisation for Economic Co-operation and Development and the International Competition Network.

A few cases in point:

n Botswana’s Competition Authority opened its doors in 2011, and now has 33 staff members, including 15 economists and four lawyers. The past two years, in particular, have been prolific, with more than 20 dawn raids conducted and market inquiries launched into the retail, poultry and cement industries.

On the merger front, the authority has sought to block mergers that are perceived to narrow the empowerment of citizens, citing public interest in having sufficient local shareholding in key markets such as insurance and health care.

n Kenya’s current Competition Act came into force in 2011. While its enforcement record has been patchy until recently, it is clearly gearing up to make an impact.

New filing fees for mergers will alleviate budgetary constraints. This month the Competition Authority of Kenya announced its intention to probe players in the agricultural sector (tea and coffee) as well as to launch an investigation into the edible oils market, in which local prices have been unresponsive to reductions in the cost of imported feedstock.

n The competition commissions of Namibia and Mauritius have both announced plans to introduce a formal corporate leniency policy to bolster their cartel busting capabilities, while the Zambian authority is moving from its preoccupation with consumer protection and mergers to competition enforcement, having recently imposed fines for price-fixing in the vehicle repair industry, and it has conducted dawn raids on two fertiliser companies.

n Last month the African Competition Forum (ACF) tabled reports on the key sectors of sugar, poultry and cement in a number of countries, including Botswana, Namibia, Tanzania, Kenya, South Africa and Zambia.

The ACF began as a loose convention of African regulators, but is now a formal network covering 41 out of the 54 African states. Although it has no enforcement powers of its own, it provides a regular forum for regulators to swap notes and get up to speed with enforcement priorities and best practice throughout the continent. The ACF is also likely to help accelerate the introduction of competition laws in countries without them.

Although there have been various attempts (through regional economic communities and over-arching conventions) to harmonise African competition laws and policy to facilitate free trade and consistency, the fact is that even where the law appears familiar, policy, process and implementation can vary significantly.

What is certain is that from Cape to Cairo, local regulators are increasingly setting rules for doing business in Africa.

The thrill of flying by the seat of one’s pants is being replaced with a need to get to grips with the legal niceties and an understanding that competition regulators are demanding to be taken seriously.

Whether competition law brings regulatory certainty or red tape is a question of perspective.

Either way, as the law of the jungle becomes substituted for the rule of law, companies that take heed and conduct themselves responsibly within the regulatory paradigm can only prosper.

Chris Charter is the director for competition at law firm Cliffe Dekker Hofmeyr.


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