a tripartite report - Unctad

98 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
Zambia in 1994 enacted the Competition and Fair
Trading Act, 1994 (No.18 of 1994). The Act’s date
of Assent by the President was 11 May 1994, and
it came into operation on 10 February 1995. The
preamble to that Act listed the following as the
primary objectives of the legislation “… to encourage
competition in the country by prohibiting
anticompetitive practices; to regulate monopolies
and concentrations of economic power; to protect
production and distribution of goods and services;
to secure the best possible conditions for the freedom
of trade; to expand the base of entrepreneurship;
and to provide for matters connected with or
incidental to the foregoing”.
The Act provided in terms of its section 4(1) for the
establishment of the Zambia Competition Commission
(ZCC) as “a body corporate with perpetual
succession and a common seal, capable of suing
and being sued in its corporate name and with
power, subject to the provisions of this Act, to do
all such acts and things as a body corporate may
by law do or perform”. The functions of the Commission
in terms of section 6(2) of the Act included
the following: (i) carrying out investigations into
anticompetitive practices, and mergers, on its own
initiative or at the request of any person; (ii) taking
action to prevent or redress the creation of a monopoly
situation through mergers or the abuse of
a dominant position; (iii) providing information to
the business community and consumers regarding
their rights under the Act; (iv) developing and promoting
standards of conduct for ensuring compliance
with the provisions of the Act; and (v) doing
all such acts and things as are necessary for the
better carrying out of its functions under the Act.
The Commission was established on 14 April 1997
following the appointment of its members, comprising
the Board of Commissioners, by the Minister
of Commerce, Trade and Industry.
The Competition and Fair Trading Act preserved
gaging
in activities that undermined rather than
-
through conduct or agreements designed to exclude
actual or potential competitors. The law in
that regard essentially addressed the problems of
monopoly power in three major settings: (i) arrangements
and agreements among otherwise
principle was that any behaviour which had the
object, or effect, of substantially lessening competition
in a market should be prohibited. The main
types of anticompetitive conduct which were prohibited
included the following: (i) anticompetitive
agreements and exclusionary provisions, including
primary and secondary boycotts, with a per se
stantial
market power for the purpose of eliminating
or damaging a competitor, preventing entry
or deterring or preventing competitive conduct;
(iii) exclusive dealing which substantially lessen
competition, with third line forcing prohibited per
se; (iv) resale price maintenance for goods; and
(v) mergers and acquisitions which substantially
lessen competition in a substantial market. The
second principle was that certain anticompetitive
behaviour should be able to be authorized on the
The enforcement of the Competition and Fair Trading
Act, 1994 by the Commission was besieged
by a number of various problems and constraints,
as chronicled by the Commission’s competition
practitioners in various publications. Problems and
in its Strategic Plan: 2008-2011, as well as in its
weekly newspaper column and quarterly Newsletter,
and by Lipimile (2005) 117 relate to the following
broad categories: (i) scope of application
of the Competition and Fair Trading Act, 1994; (ii)
substantive provisions of the Competition and Fair
Trading Act, 1994; (iii) procedural aspects of the
Competition and Fair Trading Act, 1994, including
enforcement powers of the Commission; (iv) the
Commission’s resources; (v) lack of Government
support for the Commission; and (vi) a general
lack of competition culture in Zambia:
(i) Scope of application of the Competition and
Fair Trading Act, 1994
Coverage of Public Interest in the Act: it was
noted the Zambian competition law did
not refer directly to the promotion of public
interest. That was seen as an anomaly since the
competition should also be linked to broader
economic and social policy objectives, instead