a tripartite report - Unctad

202 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
that a regulated service should be freed from
price or tariff regulation, ZERA may subject to
the approval of the responsible Minister determine
when and under what circumstances such
service should be deregulated. (Emphasis by the
author).
Section 59 (7) of the Electricity Act, 2002 further
provides that ZERA shall be required to provide to
the Competition Commission and Tariff Commission
any information or evidence of the presence
of, or the possible development of, market power
in the operation of the licensed undertakings or
electricity markets.
Section 59 (8) In the event that the Commission
determines that there is any problem related to
the development or unfair exercise of market
power, it may:
(a) issue such cease and desist orders as may
be required upon the licensee or licensees
concerned ;
(b) levy monetary penalties upon the licensee or
licensees concerned;
(c) refer the matter to the Competition and
Tariff Commission for investigation:
Provided that the Commission shall not utilize
the powers in terms of paragraphs (a) or (b)
except with the concurrence of the Competition
and Tariff Commission. (Emphasis by the
author).
This is a good model as it clearly stipulates the
interaction with the CTC in relation to competition
issues and most important how a regulated service
shall be freed from regulation (deregulated).
Having read these Petroleum Act, 2006 and the
Electricity Act, 2002 and the Energy Regulatory
Authority Act, 2011, it is observed that the Electricity
Act, 2002 has covered extensively competition
petition
jurisdiction between CTC and ZERA and
the manner with which the two institutions shall
interact. This elaborate process is missing in the
Petroleum Act, 2006 which apparently was enacted
after the enactment of the Electricity Act. Given
the differences in the years with which they were
enacted, one would expect the same provisions to
be found in the Petroleum Act. This not being the
case, the omission can partly be explained by ei-
ther lack of consistent presence of knowledge on
how competition and economic regulation co-exists
or disjoint of competition and regulation legislation
in consideration of the amendments.
As a result of this gap, there have been cases between
the Zimbabwe Electricity Supply Authority
(ZESA) and the CTC lodged before the High Court
and the Administrative Court whereby the issue of
CTC’s jurisdiction in the electricity sector has been
the staff at the ZERA show that, there is a serious
overlap that is brought about by the unlimited
powers (as far as regulated sectors are concerned)
of the ZCA that mandate CTC investigate matters
in the electricity sector. The interviewee asserted
that even if the ZCA in its generality is silent on
its limitation of powers in the electricity sector;
the Electricity Act in Section 59 (7) has provided
tions
(ZERA and CTC) should interact and how that
the Electricity Act over the generality of the ZCA
based on principles of interpretation of laws, the
CTC should only deal with matters in the electricity
sector after it has been prompted by ZERA and
not moving on its own.
The analogy of the legislation in the two regulated
sectors, as they relate to ZCA dictates that
there is harmonization between sector regulation
legislation and competition; and amongst
sectoral legislation so as to have uniformity on
treatment of competition issues in the regulated
sectors. As it is, treatment of competition issues in
the petroleum sector is different from those from
the electricity sector although both are regulated
by ZERA.
5.0 COMPETITION ADVOCACY
The ZCA indirectly provides for advocacy as one
of the functions of the CTC in Section 5 (1) (e) to
advise the Minister in regard to:
(i) All aspects of economic competition,
including entrepreneurial activities carried on
by institutions directly or indirectly controlled
by the State; and
(ii) the formulation, co-ordination, implementation
and administration of government policy in
regard to economic competition;