The Common Market for Eastern and Southern Africa (COMESA) Competition Commission recently celebrated 10 years of operation in Lilongwe, Malawi. The Honourable Simplex Chithyola, Malawi’s Minister of Trade and Industry opened the two-day event.
In his opening speech he said, “Despite the remarkable progress that our COMESA region has made in facilitating trade, particularly through the removal of tariff barriers, other barriers to trade still exist, which among them include the anti-competitive conduct of some businesses who tend to abuse their dominant position in the market to the detriment of competing businesses and consumers.”
Chithyola told delegates that such conduct results in increased risks of harming consumers through lower quality products, limited product choices, and exploitative prices.
The COMESA common market covers 21 countries including Uganda, Kenya, Rwanda, Burundi, Ethiopia, the Democratic Republic of the Congo, Egypt, Somalia, Libya, Malawi, Zimbabwe and Zambia.
The Commission became operative in 2013 to enforce regulations promulgated under the COMESA Treaty relating to consumer protection and the promotion of competition within the common market through merger control and monitoring and investigating anti-competitive practices.
The Commission’s CEO, Dr Willard Mwemba, noted that the Commission had investigated over 360 merger cases, over 40 restrictive business practice cases and over 44 consumer cases. These included investigations into agreements relating to marketing rights for the Confederation of African Football (CAF), resale price maintenance by The Coca-Cola Company, unfair terms and conditions on the Jumia online platform and product recalls and alerts with regard to several defective and unsafe products.
Delegates included the Chief Justice of Malawi, Rizine R. Mzikamanda, SC, the Chief Justice of Zimbabwe, Luke Malaba, the Secretary General of COMESA, Chileshe Mpundu Kapwepwe the Secretary General of African Civil Aviation Commission Adefunke Adeyemi, the South African Competition Commissioner, Doris Tshepe, the Acting Director General, of the Competition Authority of Kenya, Dr Adano W. Roba, the Former Judge President of the Competition Appeal Court of South Africa Justice, Judge Dennis Davis and heads of competition authorities, Ministers and senior officials from several COMESA member states and regulators.
Conference panels dealt with several important topics including the role of competition law in promoting economic growth, the role of Governments, the judiciary and international cooperation in competition law enforcement, the role of competition law enforcement in fostering regional integration and challenges facing cross border consumer matters. Chairperson of LEX Africa, Pieter Steyn (who filed the first ever merger filing with the Commission in 2013 and is a former co-chair of the International Bar Association’s Antitrust Committee) moderated a panel on the regulation of anti-competitive practices in digital markets.
Several awards were made as part of the COMESA anniversary celebrations, among them to Sydney Chisenga, Managing Partner of LEX Africa member Corpus Legal Practitioners in Lusaka, Zambia, and Nkonzo Hlatshwayo, a director of South African LEX Africa member Werksmans who were both awarded Legal Practitioner’s Awards.
Says Steyn “The Commission plays a vital role as the regional competition regulator for 21 African countries similar to the role played by the European Commission’s DG Comp in the EU. It has been a trail blazer for supranational authorities in Africa and will be an important part of the implementation of the competition protocol for the African Continental Free Trade Area.”
However, delegates noted that there is still much work to be done to promote competition and consumer protection in the COMESA region. One of the key challenges is a lack of resources, which could limit the ability of national competition authorities and the COMESA Competition Commission to undertake enforcement activities and provide technical and other assistance to regulators and other institutions in member states.
Another challenge flows from the need for business and investors to have legal certainty and accordingly to ensure consistency in the enforcement of competition laws across the region. Some COMESA member states like Uganda still do not have national competition laws. Where member states have adopted national competition laws, there are often significant differences in the level of enforcement across the region. The relationship and jurisdictional split between the national regulators and the COMESA Competition Commission remains important and the Commission has called for greater harmonisation of competition laws and procedures across the region. Says Steyn “There are several challenges for the next 10 years. For example the East Africa Community now has its own competition authority but all of its members (other than Tanzania and South Sudan) are also members of COMESA. How will the East African authority and the COMESA Commission interact? How will the nine African regional economic groupings (and their institutions and regulators) interact in the new legal framework underpinning the African Continental Free Trade Area? The Commission has however established a strong foundation to tackle these issues and LEX Africa and its lawyers hope to continue to play a role in finding appropriate solutions and developing African competition law”.