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ZAMBIA It is recommended that the Commission be given the necessary capital expenditure funds to procure the much-needed tasks effectively. 3.2 Assessment of Cases The Commission has in place the following documented guidelines on the handling and assessment of competition and consumer protection cases: (i) the Enforcement Manual; (ii) Operations Manual on Merger and Monopolies; and (iii) Guide on consumer protection matters. The guidelines are in line with international best practice, with some of them based on UNCTAD and ICN models. The Enforcement Manual outlines the administrative enforcement procedures and practices for handling cases under the new Act. According to the Manual, the following are the three underlying principles behind the Commission’s enforcement activities which are aimed at providing standards for enforcing the law in order to encourage greater levels of consistency, transparency and accountability on its part: (i) primary advocate of competition and consumer protection; (ii) balanced enforcement; and (iii) cooperation and consultation. Primary advocate of competition and consumer protection: the Commission has the power to intervene in all sectors of the economy in ensuring compliance in relation to its mandate under the Act through the use of enforcement tools behavioural change, through undertakings and consent agreements. Balanced enforcement: the Commission considers matters from the perspective of focusing on those matters where enforcement measures will result in a broader market impact by increasing compliance in a particular sector. The Commission strives to be balanced in its enforcement strategy to seek to foster behaviour change, stop ongoing conduct, and secure future compliance and not simply punish wrongdoing. However where legal contraventions against offenders or prosecute where necessary. 147 Cooperation and consultation: the Commission values input it receives from other national regulators and its counterpart agencies from other jurisdictions, as well as from market players. In its consultations with consumers, traders and market players in general, the Commission endeavours to promote voluntary compliance and transparency. For the purposes of implementing a fair approach to compliance and enforcement, and making strategic use of available resources, the Commission applies the following general criteria to all enforcement activities: (i) proportionality (any enforcement action taken should be proportionate to the legal contravention and the seriousness of the breach); (ii) consistency (a consistent approach in similar circumstances should be taken to achieve consistent outcomes; (iii) transparency (enforcement measure should be applied clearly and openly so that business and consumers know what is expected of them and what they can expect when in contravention of the law; and (iv) targeting (effective use of limited resources should be a big priority and may be achieved through the targeting of issues in line with risks, new and emerging issues and enforcement priorities – the Commission however as much as possible handles all matters that raise concerns under the Act). The Commission uses the following criteria to determine whether a matter is appropriate for investigation with a view to enforcement action (not all criteria need to be met for a matter to be authorized for investigation): (i) jurisdiction (this entails assessing whether the alleged conduct falls within the Commission’s mandate as provided for under the Act); (ii) detriment (this entails assessing the harm or potential harm the alleged conduct results into); (iii) culpability and history of alleged offender (this entails considering the blameworthiness of the offender and his past conduct vis-à-vis competition and consumer matters); (iv) gravity of conduct (here the Commission considers the seriousness of the conduct by considering whether the conduct is systematic, deliberate and not accidental, and a manifest or deliberate breach); and (v) likelihood of success of enforcement action. Diagram 1 below provides a summary of the factors that the Commission takes into account in arriving at a decision to investigate a matter and investigate various enforcement options: ZAMBIA
148 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE INITIAL ASSESSMENT Within the Commission’s jurisdiction Extent of detriment If serious, is conduct ongoing? Consideration of Commission’s enforcement priorities Culpability and history of alleged offender. Special circumstances The likelihood of success of enforcement action Low level compliance PRIORITY Low Medium High Dispute resolution Formal written warning Without prejudice discussions Investigation ENFORCEMENT OPTIONS Public warning The Manual goes on to give guidelines on pertinent issues such as: (i) handling of evidence; (ii) penalties for breaches of the Act; and (iv) leniency for enterprises volunteering information about prohibited agreements. (b) Operations Manual on Mergers and Monopolies Operations Manual on mergers and monopolies gives guidelines on the operations of the Commission’s Mergers & Monopolies Directorate. They therefore cover areas such as: (i) compliance with Parts III (restrictive business and anticompetitive trade practices), IV (mergers),V (market inquiries), Enforce undertakings Consent agreement Injunction Criminal prosecution Outside Commission’s jurisdiction – referral to appropriate agency No breach, insufficient evidence – no action taken and VI (sector regulated activities) of the Act; (ii) monitoring of market conduct of monopolies and tures that are open to competitive entry; (iv) attainment and adherence to the best practices in merger control and analysis; and (v) information to the public on merger control and related anticompetitive practices. The Manual outlines the standard operational procedure in a typical merger case as shown in Box 9 above. It goes on to guidelines on related issues such as investigations, contact with clients and collection of information, and writing papers for the Commission.
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Page 174 and 175: ZIMBABWE FULL REPORT ZIMBABWE
Page 176 and 177: ZIMBABWE TABLE OF CONTENTS PREFACE
Page 178 and 179: ZIMBABWE This report is part of the
Page 180 and 181: ZIMBABWE With the growing political
Page 182 and 183: ZIMBABWE of restrictive practices,
Page 184 and 185: ZIMBABWE competition authorities do
Page 186 and 187: ZIMBABWE divided according to geogr
Page 188 and 189: ZIMBABWE The Commission in 2006 whi
Page 190 and 191: ZIMBABWE to take care of themselves
Page 192 and 193: ZIMBABWE (under Section 9); basical
Page 194 and 195: ZIMBABWE Full scale investigation i
Page 196 and 197: ZIMBABWE (ii) to produce any book,
Page 198 and 199: ZIMBABWE The fact that CTC has a co
Page 200 and 201: ZIMBABWE tariat of technocrats, who
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ZIMBABWE Table 2: Number of Competi
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ZIMBABWE Regarding the handling of
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ZIMBABWE (Emphasis by the author) b
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ZIMBABWE Section 5 (1) (f) that pro
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ZIMBABWE Whilst the arguments can b
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ZIMBABWE Anti competitive agreement
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ZIMBABWE by conducting its case det
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