a tripartite report - Unctad

136 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
rector or manager had personally committed the
offence, unless the director or manager proves to
the satisfaction of the court that the act constituting
the offence was done without the knowledge,
consent or connivance of the director or manager
or that the director or manager took reasonable
steps to prevent the commission of the offence”. It
is noted that the liability of management is upon
conviction by a law court, with the assumption that
all the legal requirements of natural justice have to
be met in the process.
2.6 Sector Regulators
Sector regulated activities in Zambia are provided
for in Part VI of the Act. Section 42 provides that
“subject to section three, the economic activities
of an enterprise in a sector where a regulator exercises
statutory powers is subject to the requirements
of Part III”. The referred to section three of
the Act contains the application provisions of the
Act, which provide that the Act: (a) applies to all
economic activity within, or having an effect within,
Zambia; (b) binds the State insofar as the State
or an enterprise owned by the State engages in
commercial activities; (c) exempts: (i) collective
bargaining activities; (ii) intellectual property rights;
(iii) conduct designed to achieve non-commercial
socio-economic objectives; and (iv) business of
statutory monopolies.
Part III of the Act deals with restrictive business and
anticompetitive trade practices (anticompetitive
agreements of a horizontal and vertical nature,
and abuse of dominant position).
Section 42 of the Act therefore means that activities
of enterprises in regulated sectors fall under
the jurisdiction of the Commission in as far as restrictive
business and anticompetitive trade practices
are concerned, unless the enterprises fall
under the explicit exemptions of section 3 of the
Act. The Commission also has powers in terms
of section 44 to undertake market inquiries into
competition in regulated sectors. The Act is however
silent on whether or not the requirements of
its Part IV, on mergers, also apply to enterprises in
regulated sectors. While it can be assumed that
the requirements of Part IV are applicable, this
so because mergers and acquisitions in regulated
sectors are rife.
It is recommended that it also be made
clear under section 42 of the Act that
“the economic activities of an enterprise
in a sector where a regulator exercises
statutory powers is subject to the
The Commission is required under the Act to enter
into cooperation agreements with sector regulators
in the implementation of competition policy
and law. In that regard, section 43 of the Act provides
that “for the purpose of coordinating and
harmonizing matters relating to competition in
other sectors of the economy, enter into a memorandum
of understanding with any regulator in
that sector, in the prescribed manner and form”.
The interface between competition authorities and
sector regulators has always been a contentious
issue worldwide156 . It has been noted that despite
having a common goal, and potentially playing
complementary roles in fostering competitive
markets and safeguarding consumer welfare,
the different approaches employed and different
perspectives held by competition policy and sector
regulation can be a source of friction. The friction
is heightened by the blurring of the distinction
between economic and technical regulation
and competition enforcement, which are common
regulatory tasks. Common regulatory tasks are
Box 14: Common Regulatory Tasks
Competition Protection: controlling
anticompetitive conduct and mergers.
Access Regulation: ensuring
non-discriminatory access to necessary
inputs, particularly network infrastructure.
Economic Regulation: adopting measures
to control monopoly pricing.
Technical Regulation: setting and
monitoring standards to ensure
compatibility and to address privacy,
safety and environmental concerns.
Source: OECD, Relationship between Regulators and
Competition Authorities, 1999.
cur
as a result of ambiguities in the law as to whether
sector regulation or competition law has prec-