Legal Business
Baker McKenzie Report 2022: The rapid rate of competition law development across Africa
By Lerisha Naidu, Partner, Angelo Tzarevski, Associate Director, Sphesihle Nxumalo, Associate and Zareenah Rasool, Associate, Competition & Antitrust Practice, Baker McKenzie Johannesburg
Baker McKenzie’s latest Africa Competition Report 2022 provides a detailed analysis and overview of recent developments in competition law enforcement and competition policy in 32 African jurisdictions and regional bodies. The Report outlines how, over the past two years, African competition regulators have actively engaged in efforts to address pandemic-related challenges, but there has also been a general upward trend in competition policy enforcement across the continent.
This trend is highlighted by a number of significant recent developments in competition law regulation across the continent. Countries and regions with recent competition law developments include the Common Market for Eastern and Southern Africa (COMESA), Egypt, Ethiopia, Ghana, Kenya, Mauritius, Mozambique, Namibia, Nigeria and South Africa.
COMESA
There were various developments with regards to COMESA in 2021. In February 2021, the COMESA Competition Commission issued a Practice Note in which it amended the interpretation of the term “operate””. Prior to this, a party “operated” in a COMESA Member State if it had turnover or assets in that Member State in excess of USD 5 million. This requirement has now been removed, effective from 11 February 2021, and a party will “operate” in a COMESA Member State merely if it is active in it (without a minimum turnover or asset threshold). The impact of this will be to make it easier for a transaction to fall within the scope of the COMESA merger control regime.
The COMESA Commission has also recently issued Draft Guidelines on Fines and Penalties, Draft Guidelines on Settlement Procedures and Draft Guidelines on Hearing Procedures.
In September 2021, the COMESA Commission issued its first penalty for failure to notify a transaction within the prescribed time periods, which penalty amounted to 0,05% of the parties’ combined turnover in the Common Market in the 2020 financial year. This was imposed in relation to the proposed acquisition by Helios Towers Limited of the shares of Madagascar Towers SA and Malawi Towers Limited.
In December 2021, the COMESA Commission imposed a fine for failure to comply with a commitment contained in a merger clearance decision.
The COMESA Commission also conducted eight investigations into restrictive business practices in 2021.
Egypt
There were numerous recent developments in Egypt, including in November 2020, when the Competition Authority announced that the Egyptian Prime Ministry had approved the Prime Minister’s draft law amending certain provisions of the Egyptian Competition Law 3/2005. In February 2021, the Egyptian parliament’s Economic Affairs Committee started the discussions on the new amendments. The Competition Authority has also recently initiated market inquiries in relation to multiple sectors including healthcare, food, electronic and electrical appliances, automotive, real estate, media and petroleum sectors.
In April 2021, the Economic Court of Cairo issued a ruling in a criminal case brought in March 2020 by the Competition Authority, against five individual poultry brokers for colluding to fix the price of chicken to the detriment of consumers and chicken breeders. The court fined each broker 30 million Egyptian pounds (approx. USD 1.6 million) for agreeing to fix the price of a kilogram of chicken.
In July 2021, the Competition Authority initiated a criminal case against two companies who agreed to submit identical offers in one of the practices of the General Authority for Veterinary Services, in violation of Egyptian competition law.
The head of the Competition Authority announced plans for the creation of an Arab Competition Network to enhance cross-border cooperation between antitrust enforcers in the Middle East. The ACN would be the first to provide Arab competition authorities with an official platform to meet and discuss prominent issues and impending changes to antitrust law. The network would be run by the 22 members of the League of Arab States, which includes Egypt, Syria, Lebanon, Iraq, Jordan and Saudi Arabia, among others.
Ethiopia
In Ethiopia, the Trade Competition and Consumer Protection Authority is working on regulations to provide guidance on the application of the Trade Competition and Consumer Protection Proclamation (No 813/2013). Proclamation No. 1263/2021, which is expected to be enacted and come into force in 2022, transfers the powers of the Trade Competition and Consumer Protection Authority to the Ministry of Trade and Regional Integration.
Ghana
In Ghana, a draft Competition and Fair Trade Practices Bill is before parliament for consideration.
Kenya
The Competition of Authority in Kenya finalised its study into the regulated and unregulated credit markets in the country and issued its report in May 2021. The Authority further developed the Retail Trade Code of Practice 2021, in consultation with stakeholders in the retail sector, to address the abuse of buyer power issues arising from the sector. Also in 2021, the Competition Authority conducted a dawn raid in the steel industry and issued draft joint venture guidelines, to clarify the rules and filing requirements of joint venture arrangements.
Mauritius
The Competition Commission in Mauritius concluded a market study in the pharmaceutical sector on 8 June 2021.
Mozambique
There were numerous developments in competition law in Mozambique in 2021, including that the Competition Regulatory Authority became operational in January 2021. Regulations on Merger Notifications Forms were enacted by means of Resolution No. 1/2021 of 22 April 2021. The Regulations prescribe the different forms to be completed for merger notifications, as well as the details of the information and documentation required. Regulations on Filing Fees were enacted by means of Ministerial Diploma No. 77/2021 of 16 August 2021. Filing fees are currently set at 0.11% of the turnover of the parties in the previous year, up to a maximum of MZN 2,250,000 (approx. USD 35,000). Amendments to the Competition Regulations were enacted by means of Decree No. 101/2021 of 31 December 2021.
Namibia
A Competition Bill is in progress in Namibia, and the Competition Commission expects to submit the final version of the Competition Bill to the Ministry of Industrialisation and Trade by the end of June 2022.
Nigeria
On 2 August 2021, Nigeria adopted the Merger Review (Amended) Regulations 2021, which set out new fees applicable for merger filings. The Federal Competition and Consumer Protection Commission launched and publicised an investigation into the alleged anticompetitive conduct of five companies in the shipping and freight forwarding industry in October 2021.
South Africa
There were various developments in South Africa in 2021, including in May 2021, when the Competition Commission launched the Online Intermediation Platforms Market Inquiry, focusing on four broad online intermediation platforms and market dynamics that specifically affect business users – eCommerce marketplaces, online classified marketplaces, software app stores and intermediated services (such as accommodation, travel, transport and food delivery). The Inquiry is ongoing with a provisional report scheduled for release on 10 June 2022, and the final report scheduled for release in November 2022.
In April 2021, the Commission released its market inquiry reports on Land Based Public Transport. Furthermore, in April 2021, the Commission published its final report on an impact assessment study it conducted in relation to COVID-19. The report sets out the findings of the Competition Commission regarding the impact of the COVID-19 block exemptions and the enforcement work done by the Competition Commission during the pandemic. The Competition Commission’s fifth Essential Food Pricing Monitoring Report, which is released quarterly, focused on tracking the impact of the COVID-19 pandemic and consequent economic crisis on food markets.
In May 2021, the Commission issued, for comment, draft guidelines on Small Merger Notifications, which contain specific guidance applicable to the assessment of digital mergers.
Notably, 2021 was the year when the Commission prohibited a merger solely on public interest grounds, making it the first transaction to be prohibited on non-competitive grounds. Ultimately, however, the merger was conditionally approved before the Competition Tribunal.
In November 2021, the Commission released its Economic Concentration Report, which highlighted patterns of concentration and participation in the South African economy. The report includes details on the Commission’s power to launch market inquiries into highly concentrated industries, as well as its increased authority to impose structural remedies on businesses in these sectors.
In March 2022, the Commission issued Guidelines on Collaboration between Competitors on Localisation Initiatives, which are aimed at providing guidance to industry and government on how industry players may collaborate in identifying opportunities for localisation and implementing commitments related to localisation initiatives in a manner that does not raise competition concerns.
In March 2022, the Commission launched a market inquiry into the South African fresh produce market, which will examine whether there are any features in the fresh produce value chain, which lessen, prevent or distort the competitiveness of the market.
The Commission concluded various settlement agreements with market players (e.g., grocery retailers and laboratories) to reduce the prices of goods and services.
Legal Business
African Union, Google and Africa Practice launch Policy Framework to Transform Africa’s Startup Ecosystem
In a groundbreaking move to drive innovation and entrepreneurship across Africa, the African Union and its partners, including Google and Africa Practice, have launched the AU Startup Policy Framework and Model Law. The Policy Framework and Model Law articulate principles, recommendations, and policy innovations to tackle the challenges hindering startups in Africa. It provides specific sample clauses to guide African Union Member States in developing or updating their national startup legislative and regulatory governance arrangements.
The Policy Framework and Model Law, developed in cooperation with Google in line with its Memorandum of Understanding with the African Union Commission, is set to harmonise approaches to enabling startups and innovation, in line with the African Union’s broader harmonisation objectives.
Speaking during the launch held during the African Union 6th Mid-Year Coordination Meeting that brings together the African Union, the Regional Economic Communities, the Regional Mechanisms and the African Union Member States, H.E. Albert M. Muchanga, African Union Commissioner for Economic Development, Trade, Tourism, Industry and Minerals, said, “We are excited about the new prospects for our continent unlocked by the adoption of the Startup Policy Framework and Model Law which is set to leapfrog the startup ecosystem in Africa. As you know, small and medium-sized enterprises, including startups, represent most businesses in all sectors and are the primary source of job creation. Specifically, startups spur development by creating jobs in the digital economy, employing 34,000 people across the continent. Unfortunately, out of 1000 unicorns globally, only seven are in Africa. This is primarily due to complex regulations, limited funding, a scarcity of skilled labour, and fragmented markets in Africa. Therefore, the framework is expected to unlock some of these hurdles and set a strong foundation for the growth of Africa’s startup landscape, projected to expand to USD 10 billion by 2056.”
H.E. Albert M. Muchanga went on to highlight that “Africa is a young continent, by 2050, the continent will account for 25% of the global population. Governments need to make the provisions to enable capital flow for the burgeoning ideas coming out of Africa. We need to create an environment that enables these innovative minds to catapult the continent to economic prosperity, and this framework is what enables this.”
Google’s Regional Director, Sub Saharan Africa, Government Affairs & Public Policy, Charles Murito, noted, “Africa receives a disproportionately small share of global venture funding. In 2023, the continent raised a total of USD 4.5 billion from 545 disclosed venture capital deals, reflecting a 30% decrease in value and a 31% decline in the number of deals compared to 2022. Notably, 16% of the funding recipients were female-led ventures, only marginally up from 11% in 2020. Funding flows also skew towards the same sectors, exacerbating the financing challenge; with fintech continuing to lead deal volumes. The same destinations also receive disproportionately more of the financing flows into the continent: startups in Nigeria, Kenya, South Africa, and Egypt received 62% of the total deal volume.”
While there’s no universal formula for fostering innovation and startups, the framework outlines principles derived from successful models. It is a call to action to ensure that startups — particularly those led by women and youth can be better supported. This Policy Framework and Model Law holds the potential to address gender disproportionality in financing flows, inspiring a new wave of innovation and growth.
Marie Wilke, the Chief Innovation Officer at consulting firm Africa Practice, said, “The adoption of the Startup Policy Framework and Model Law marks the beginning of an exciting but potentially transformative phase. We must maintain momentum behind engagements with regional economic communities (RECs), regional organisations (ROs), and member states, to update and enact regional legal frameworks and national laws. Innovation is as much about finance and people as it is about drive. The future of Africa’s small and new businesses depends on our joint and decisive efforts to support them, paving the way for The Africa We Want.”
Photo Credits: Tonkin Clacey Inc
In the complex and intricate world of law, where every case is a story waiting to be told, the wisdom passed down from seasoned legal professionals holds immeasurable value. Within the hallowed halls of law firms and legal institutions, an age-old tradition persists-one that transcends formal training and case law. It’s the tradition of fireside chats, where senior legal practitioners weave narratives of their experiences, trials, and triumphs, igniting the flames of inspiration in the hearts of their junior counterparts.
In these intimate gatherings, the rigid walls of hierarchy crumble, and the barriers between senior and junior practitioners’ dissolve. Here, amidst the flickering glow of the fire, stories untold-stories of courtroom battles won and lost, negotiations that sealed deals or unraveled, and ethical dilemmas faced with unwavering resolve. Through these stories, senior legal practitioners impart not just legal knowledge but invaluable lessons from the trenches of practice.
For junior practitioners, these fireside chats serve as a beacon of guidance, illuminating the path ahead with the collective wisdom of those who’ve walked it before. They chats provide insights that textbooks can’t convey, painting a vivid picture of the complexities and nuances of legal practice. From navigating tricky client interactions to finding creative solutions to legal challenges, the stories shared in these informal gatherings offer a treasure trove of practical advice.
Moreover, fireside chats help to build a sense of fellowship and community within the legal profession. They create spaces where junior practitioners feel seen, heard, and valued—not just as legal novices, but as aspiring storytellers in their own right. Through the exchange of anecdotes and experiences, bonds are forged, mentorship relationships blossom, and a culture of continuous learning thrives.
Most importantly, these chats have the power to shape the trajectory of junior practitioners’ careers. By exposing them to diverse perspectives and real-world scenarios, these informal gatherings expand their horizons, instilling in them the confidence to navigate the complexities of the legal landscape. They inspire them to dream bigger, reach higher, and aspire to leave their own indelible mark on the legal profession.
Photo Credits: Baker McKenzie
In a profession where the stakes are high, and the journey is fraught with challenges, storytelling becomes a guiding light—a compass that points towards excellence, integrity, and justice. The Advancing Women in the Workplace (AWW) program- a program to support women in leadership in South Africa adopted this approach of storytelling as a model. So, let us gather around, dear practitioners, and share our stories. For in the flicker of the flames lies the power to shape not just individual careers, but the future of the legal profession itself.
Acknowledgements
The AWW program, a program sponsored by Vance Centre in partnership with the South African Legal Fellows Network and the US mission.
Written by: Adaobi Adaobi Egboka and Dr Kim Lamont-Mbawuli. Africa Program Director, Cyrus R. Vance Center for International Justice, Vance Center Consultant and Director of KLM attorneys.
Data privacy, defined by Tech target is a discipline intended to keep data safe against improper access, theft or loss. One of the triads of cybersecurity is confidentiality and this has to do with data privacy. The world has become a global village and data privacy issues are now more relevant than they ever were before.
In 2009, a popular brand in America had a serious breach of its systems. For 18 months, hackers had access to the brand’s data and were able to get customers credit card details and personally identifiable information undetected. How did this happen? and how can you make sure that this doesn’t happen to your organization? The answer is simple, you need to pay attention to data privacy. As long as your business collects personal identifiable information, your business has a duty to protect the confidentiality of the people who have given you that information.
Sometimes, the obligation to protect data is beyond a moral right. In Europe for example, you have the GDPR (General Data Protection Regulation), in America you have applicable laws like Health Insurance Portability and Accountability Act of 1996 (HIPAA) which demand data privacy. In Nigeria, privacy rights draw from the Constitution of the Federal Republic of Nigeria (1999) (as amended) and can also be found in the Nigerian Data Protection Regulation, 2019.
All these laws show you that as a business owner, you are not only expected to protect data, you are under an obligation by law in some cases to protect certain types of data. The question is, how do you protect data and ensure that the privacy rights of your customers are respected?
- Employ a CISO: You should consider employing a Chief Information Security Officer (CISO) if your organization is large, who would be in charge of formulating policies to protect data privacy as well as other valuable data in your organization. Actions like these can prevent competitors from getting valuable data from your company, ensure your company complies with relevant laws on data privacy and thus win customers’ confidence in your brand.
- Implement good information security policies and procedures: You would also need to create good policies on information security. Ensure documents with sensitive data on customers are password protected, ensure that firewalls and anti-malware software are installed to fight off malicious cyber-attacks aimed at stealing customer data and create trainings for staff handling sensitive data.
- Don’t collect data you don’t need: Where you don’t need to collect customer data, don’t do it. Only ask customers to give you the information relevant to the service you are providing for them.
- Don’t keep data longer than you need it: Where you don’t need data anymore, and no law requires that you keep it, destroy it. Where a customer has indicated that they want their account deleted, or they don’t want to share their data with your company anymore, ensure that the data is destroyed.
- Properly destroy data that is no longer useful to you: The same way you receive data through a process, you need to understand that destroying data is also a process. Data is not destroyed simply because you put it in the recycle bin and deleted it from the recycle bin. Ensure that data is properly destroyed when it’s no longer useful.
At the end of the day, data privacy is important for businesses in the world today. I hope these tips would help you choose to take steps to protect your customers data in every part of your business and ensure the data privacy rights of your customers are respected.
Article by: Morenike George-Taylor CDMP, County Support Director & Data Governance Expert
