a tripartite report - Unctad

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prudent that the Minister and the Control/Auditor-
General who, on the Minister’s instructions, must
carry out a performance indicators audit and not
4.4 The Fair Competition Tribunal (FCT)
The Fair Competition Tribunal (FCT) is a quasi-judicial
body with appellate responsibilities on cases
from the FCC. The Tribunal is established under
Section 83 and consists of a Chairman who shall
High Court appointed by the President after consultation
with the Chief Justice, and shall serve on
part time basis; and six other members appointed
to serve on part time basis by the President after
consultation with the Attorney General from candidates
nominated by a Nomination Committee. 84
According to Section 83(3), no person shall be appointed
as a member of the FCT other than the
virtue of his knowledge of, or experience in industry,
commerce, economics, law or public administration85
in the instrument of his appointment and shall be
eligible for re-appointment unless, prior to the ex-
to the President; or (b) the President, being satis-
least three consecutive meetings of the Tribunal,
revokes his appointment.
The quorum for a meeting of the Tribunal shall be
the Chairman and two other members. There is
no Vice-Chair of the Tribunal and thus, in the absence
of the Chair, a meeting of the Tribunal cannot
take place as the members cannot legally appoint
a Chair even for purposes of the meeting.
The Registrar of the FCT was concerned about this
scenario and it is one of the areas earmarked for
amendment. The presence of a Vice-Chair could
to operate with two panels of its members sitting
to look at different cases. A concern was noted
from the stakeholders by the Registrar that the FCT
The Registrar acknowledged this and alluded it to
73
the fact that the FCT is part time, and members
have full-time jobs, more so the Chair who is a
full-time judge. Apart from the Registrar, the Chair
does not have his own staff to assist in writing the
judgments after the decisions are made.
The Registrar acknowledged that the FCT needed
to be more proactive in training its members in
competition law and also in understanding the
FCC and other regulator’s procedures. International
peer learning from similar tribunals, notably
the South African one in the region, were identi-
what is in the FCA, the FCT members did not have
a comprehensive code of conduct or ethics. While
the Chairman is a Judge, his/her code of conduct/
ethics was covered under the relevant national judicial
codes.
In terms of judgment 86 , a judgment or order given
by the Tribunal on any matter before it shall be
same manner as judgments and orders of the
High Court.
The Tribunal shall have jurisdiction –
(a) to hear and determine appeals under Part XI
of the Act (which deals with matters of appeal
to the Tribunal);
(b) to issue warrants in accordance with
section 71;
(c) to carry out the functions conferred on it
under the EWURA Act, 2001, the SUMATRA
Act, 2001, the TCRA Act, 2003, the TCAA Act,
2003 and any other written law;
(d) to exercise such other functions and powers
as are conferred upon it by the Act.
Tribunal may decline to hear an appeal if it considers
that the person does not have a pecuniary and
material grievance arising from the decision of the
FCC. In reaching its decision the Tribunal shall have
regard to any regulations on the matters made by
the Minister under section 98 of the Act 87 . In the
exercise of its functions under this Act, the FCT is
guided by the rules of natural justice and shall publish
its decisions and the reasons for its decisions in
the Public Register maintained by the Tribunal.
Under Section 85(5), the FCT has all the powers of
the High Court in respect of enforcing the attendance
of witnesses and examining them on oath,
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