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PREFACE the effectiveness of the organization. However, since the United Republic of Tanzania is not a member, COMESA does not represent the complete solution for the three jurisdictions under review. The South African Development Community (SADC), to which all three countries belong, is a 15 countries organization whose aim is to further their socio-economic cooperation and integration. Contrary to COMESA that is an enforcement Authority, SADC has simply created a framework of cooperation among the 15 countries. In particular, SADC competition policy is governed by the Declaration on Regional Cooperation in Competition and Consumer Policies aimed at facilitating investigations on anticompetitive practices that have cross-border effects. The declaration actively promotes cooperation among SADC member States, establishing comity principles among them, and setting up a dedicated institutional structure, the Competition and Consumer Policy and Law Committee (CCO- POLC). The CCOPOLC was established in 2008. It is a forum where Member States Competition Authorities’ to exchange information and share enforcement experiences and meets once a year. SADC structure does not have enforcement powers. In addition to promoting cooperation in competition enforcement, SADC could also become a centre of promotion of best practices on substance, procedure and institutional structure. This can be enhanced through appropriate training of staff within the Secretariat ant its member States. To further its cooperation facilitating mandate, SADC should prepare a comparative enforcement performance report of member States competition, for example starting with the three jurisdictions under review. This could be very useful domestically to exchange enforcement practices, adopt better procedures and, more importantly, strengthen domestic institutions (including their funding). There are regional efforts in place to establish a tripartite free trade area, aimed at minimizing the effects of the overlaps in the membership of COMESA, SADC and EAC. It has been found prudent for the three regional groupings to cooperate and harmonize their trade, infrastructure and other regional integration programmes, including competition law and policy. With respect to competition, the three regional groupings are supposed to cooperate and exchange information in the formulation and/or implementation of the 21 competition policies and laws. This would indeed be a good step towards reducing enforcement overlaps and enhance the implementation of the recommendations of this review in the three jurisdictions individually and collectively. IV. FINDINGS AND RECOMMENDATIONS Zambia and Zimbabwe have many things in common. Their laws were introduced around the same time in the mid 1990s, their competition authorities have a number of different mandates besides antitrust, from plant dislocation in Zambia to counterfeits in the United Republic of Tanzania and trade related issues in Zimbabwe. This puts pressure on the amount of resources dedicated to antitrust enforcement. In order to become more effective, the authorities need more resources and better funding. It is not easy to convince Governments to dedicate more resources to antitrust enforcement. The best way is to have a few high impact cases, along the lines of the brewery cases in the United Republic of Tanzania and Zambia that can show the importance of competition law and policy to the public and Government. While improving resources and funding of the national competition authorities constitutes the core recommendation of the comparative assessment, further issues need to be addressed in a view of bettering the enforcement of competition law and policy in the three countries and at the regional level. 1. Recommendations to be implemented at the national levels a. Recommendations addressed to the legislature As regards legislative reforms, it is only in Zimbabwe where the law needs to be thoroughly revised as described in the national assessment report in order to make sure that antitrust violations can be rence cannot be achieved. Zambia and the United Republic of Tanzania do not need to change major parts of their law. In these jurisdictions, however, and to reinterpret others in order to converge to best practices. COMPARATIVE ASSESMENT
22 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE Sanctions Appropriate sanctions for procedural and substantive competition law breaches is a major area for revision/reinterpretation in all three jurisdictions: The Zambia and Zimbabwe Authorities should ensure that petty violations are not punished with criminal sanctions. Failure to notify a merger or providing misleading information to the Authority ment in such instances is not recommended. Such of foreign direct investment to the country and may be counterproductive for economic development. In practical terms, a judge is unlikely to sentence a person to jail for such minor violations. However, the existence of such penalties in the law still represents a threat to outsiders. In cases where the law may not be easily amended, the Authority should develop guidelines by way of subsidiary legislation, which provides for very exceptional circumstances, under which the criminal provisions may be applied. This could be when the violation is repeated a number of times and is clearly part of a complex scheme of obstruction of justice. Apart from criminalization of petty violations, in Zambia the provisions on sanctions are in line with international best practices. In the United Republic of Tanzania there is a need for a minor change in 5 to 10 per cent of the annual turnover) does not to cooperate with the Authority. In this respect, it is proposed that the scope of the sanctions should start from zero. However such reforms may not be a matter of urgency. A leniency programme becomes necessary and effective as authorities strengthen their enforcement credibility. There is room for the Tanzanian Authority to grow with the existing leg- Zimbabwe, not only because antitrust violations - be set as a percentage of turnover (0–10 per cent). Merger control In all three jurisdictions, mergers above a certain United Republic of Tanzania the thresholds can Zambia and Zimbabwe is disadvantageous for big the acquired company has an extremely small domestic turnover. This needs to be changed in the threshold. Furthermore, if the Zimbabwean law is not changed, the lack of a binding time frame for the assessment of a merger may be overcome by an administrative decision of the Authority to review all simple mergers within a month and more complex ones within four months. All three jurisdictions have a public interest defence for otherwise anticompetitive mergers. While the test is quite appropriate in the United Republic of Tanzania and Zimbabwe practically fence, the public interest test introduced in Zam- promotion, competitiveness, socio economic factors, etc. as matters to be considered as part of the public interest. Unless the law is changed, the Authority should interpret these provisions very rigorously and grant a public interest exception ciency defences). Judicial review In the United Republic of Tanzania and Zambia judicial review is assigned to specially established competition tribunals which ensure a high level of required expertise of the judges in charge of judicial review of competition cases. In general, however, it is not necessary to intro- ensure that judicial review of the competition authority’s decisions is always carried out by the same judges of a more general Court so that these judges can develop the expertise required for the review of competition cases. Therefore, the double jurisdiction of the Administrative Court and the High Court in Zimbabwe need to be addressed. While a revision of the law to assign jurisdiction for judicial review of competition cases to a single body is the preferred option, there may be other
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ZIMBABWE FULL REPORT ZIMBABWE
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ZIMBABWE TABLE OF CONTENTS PREFACE
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ZIMBABWE This report is part of the
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ZIMBABWE With the growing political
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ZIMBABWE of restrictive practices,
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ZIMBABWE competition authorities do
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ZIMBABWE divided according to geogr
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ZIMBABWE The Commission in 2006 whi
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ZIMBABWE to take care of themselves
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ZIMBABWE (under Section 9); basical
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ZIMBABWE Full scale investigation i
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ZIMBABWE (ii) to produce any book,
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ZIMBABWE The fact that CTC has a co
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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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