a tripartite report - Unctad

ZAMBIA
ing practices, and unfair contract terms, as well as
extends the Commission’s undertaking of studies
to matters of concern to consumers. While these
functions were implied in the old, and the ZCC had
always performed them, the functions now have
legal legitimacy under the new Act. The added
function of acting as the primary advocate for
competition and effective consumer protection in
Zambia strengthens the Commission’s jurisdiction
on competition and consumer protection matters
over other sector regulators and consumer associations.
The function of advising government on
laws affecting competition and consumer protection,
and on agreements relevant to competition
and consumer protection should go a long way
in making the government take cognizance of the
decisions and recommendations of the Commission,
which was one of the problems and constraints
that the Commission faced in the implementation
of the country’s competition policy and
the ZCC’s competition practitioners.
The added function of liaising and exchanging information,
knowledge and expertise with competition
and consumer protection authorities in other
countries gives the Commission the necessary
mandate and legal powers of entering into cooperation
agreements and arrangements with other
competition authorities on a bilateral, regional or
multilateral level.
The concept of public interest has been introduced
in the new Act, particularly in the examination and
determination of mergers. The public interest issues
are clearly outlined in the Act, and include
the promotion of exports and employment, and
the protection of micro and small business enterprises.
This recognizes the fact that competition
policy in developing countries should be implemented
in coherence with the country’s other
socio-economic policies for effective economic
development.
On the whole, the new Competition and Consumer
Protection Act, 2010 of Zambia is very comprehensive,
the fact that was recognized by virtually
all the stakeholders that were interviewed during
16 – 23 October 2011 127 , with high expectations
that the implementation of competition policy and
law in the country will be much improved than before.
The general observation was however that
111
the Act focuses more on consumer protection
than on purely competition issues.
2.2 Application and Exemptions
The UNCTAD Model Law on Competition, in giving
guidance for best practices in competition law
design, suggests that the law should have general
applicability, i.e., that it should apply to all industries,
agreements and entities engaged in the
commercial exchange of goods and services. The
rationale being that enterprises engaged in the
same or similar business activities should be subject
to the same set of legal rules and standards to
ensure fairness, equality and non-discriminatory
treatment under competition law.
However, reality, and practice, dictates that some
exemptions and exclusions should be granted in
competition law for social, economic, and political
reasons. Care should however be taken in granting
blanket exemptions and exclusions that certain
economic sectors are not completely exempted,
thus giving them legal licences to engage in anticompetitive
practices.
The Competition and Consumer Protection Act,
2010 of Zambia expressly provides under section
3(1) that the Act “… applies to all economic activity
within, or having an effect within, Zambia”. These
vided
for, but implied, in the old Competition and
Fair Trading Act, 1994, which only provided for the
exemptions and exclusions from the application of
the Act. The provisions are important and crucial,
particularly in merger control, since they empower
the Commission to examine the competitive effects
in Zambia of transactions concluded and
entered into elsewhere. The Act in terms of section
3(2) also “binds the State insofar as the State
or an enterprise owned, wholly or in part, by the
State engages in trade or business for the production,
supply, or distribution of goods or the provision
of any service within a market that is open to
participation by other enterprises”. Thus, there are
no ‘sacred cows’ and the Commission can enforce
competition law on State enterprises, or parastatal
organizations, that engage in commercial activities
in competition with private companies.
Even though it is not expressly stated in the Act,
it is implied that the Act does not apply to the
ZAMBIA