a tripartite report - Unctad

46 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
stood it, with appeals for the aggrieved lying with
the FCT. Section 19 of the SUMATRA Act has similar
provisions to those contained under section 19
of the TCRA Act and section 40 of the TCAA Act.
In light of these provisions, the FCC effectively
cannot proactively deal with matters under sectors
regulated by EWURA (with the exception of
the Electricity Act and the Petroleum Act), TCRA,
TCCA, SUMATRA and any other legislations that
may have similar provisions enacted after the FCA
came into being. The recourse FCC has under section
19(4) of the FCA is to submit its position to the
Minister of Trade and Industry, who has discretion
whether to take such submission any further 41 . The
FCC effectively commands no enforcement jurisdiction
in the named critical regulated sectors. It
was not clear as to what the policy intentions of
this exclusion were at the time but the future may
be as was later enshrined under the Electricity Act
and the Petroleum Act, both of 2008 where consultation
with the FCC was mandatory.
sions
exist in the sector legislations, the experience
has been that the sector regulators invest more
in technical regulation than competition matters.
In any case, they do not have the same vision on
competition and thus would not see the competition
effects of some of their decisions. Leaving
the appeal process on competition matters to the
Minister is not the best option as the Minister and
to understand the intricacies of competition policy.
Section 96, through Acts of Parliament, the Government
retained the crop marketing boards
(CMBs) that were established under the era of a
State-run economy. The CMBs have the responsibility
of regulating and setting prices and distribution
dynamics for major cash crops such as coffee,
cotton, cashew nuts and tobacco. The CMBs have
price” setting arrangements annually. Considering
that agriculture is the largest employer and mainstay
of the most Tanzanians, the sector attracts
a lot of political interest that would clearly class
with competition policy. The FCC is yet to make a
sector although its role may largely be advisory.
Within the FCC, it was not clear whether the CMBs
are part of the ‘State” or whether they were “State
bodies” on one hand, and on the other, whether
they were strictly engaged in trade or not.
Under section 4(3) of the EAC Competition Act of
2006, even this supranational law shall not apply to
restraints on competition imposed by and resulting
or industries to the extent that the anticompetitive
conduct is required by such regulation within their
own jurisdictions. This provision would make it dif-
law at both the national and regional levels.
2.3 Elements of the United Republic
of Tanzania’s Competition Law
A competition law should generally have certain
core elements such as control or eliminate
restrictive agreements or arrangements among
enterprises; control mergers and acquisitions and
control abuse of dominant positions of market
power 42 . The United Republic of Tanzania’s FCA
contains the classical competition law provisions
such as a generic statement on anticompetitive
trade practices and then proceeds to list the spe-
ers
and acquisitions and horizontal arrangements.
Section 8 of the Fair Competition Act states that:
A person shall not make or give effect to an agreement
if the object, effect or likely effect of the agreement
is to appreciably prevent, restrict or distort
competition.
refer to both horizontal and vertical agreements,
reading it further shows that it actually deals with
general prohibitions of horizontal agreements.
Section 8 (3) of the Act provides for the rebuttable
presumption that they are not anticompetitive
if none of the parties to the agreement holds a
dominant position or are not competitors.
Under Section 9 of the FCA, the law details several
agreements that are considered as per se anticompetitive
in most jurisdictions. This type of agreement
is considered to be anticompetitive by its nature
so that the competition authority only has to
prove the existence of such agreement, but does
not have to assess its effects on the market. This is
generally acceptable best practice.
Under Section 10 of the FCA, the law introduces
“misuse of market power” and under Section 11