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Tanzania-Zambia-Zimbabwe United Nations Conference on Trade and Development UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA-ZAMBIA-ZIMBABWE UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA-ZAMBIA-ZIMBABWE New York and Geneva, 2012 UNITUNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE UNITED NATIONS New York and Geneva, 2012 1 TABLE OF CONTENTS NOTE ............................................................................................................................................2 ACKNOWLEDGEMENT ...............................................................................................................3 COMPARATIVE ASSESMENT .....................................................................................................5 VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY – FULL REPORT – UNITED REPUBLIC OF TANZANIA .................................................... 27 VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY – FULL REPORT ZAMBIA .................................................................................................. 87 VOLUNTARY PEER REVIEW OF COMPETITION LAW AND POLICY – FULL REPORT ZIMBABWE ...........................................................................................169 NOTES ..................................................................................................................................... 211 2 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE NOTE UNCTAD’s voluntary peer review of competition law and policies falls within the framework of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices (the “United Nations Set of Principles and Rules on Competition”), adopted by the General Assembly in 1980. The set seeks, inter alia, to assist developing countries in adopting and enforcing effective competition law and policy that are suited to their development needs and economic situation. Due to capacity constraints, this publication has not been subject to formal editing. 7KHYLHZVH[SUHVVHGLQWKLVUHSRUWDUHWKRVHRIWKHDXWKRUDQGGRQRWQHFHVVDULO\UHÁHFWWKHYLHZVRIWKH United Nations Secretariat. The designations employed and the presentation of the material in this publi- cation do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concern- ing the delimitation of its frontiers or boundaries. Material in this publication may be freely quoted or reprinted, but acknowledgement is requested, together with a reference to the document number. A copy of the documentation containing the quotation or reprint should be sent to the UNCTAD secretariat. 8QOHVVRWKHUZLVHVSHFLÀHGDOOUHIHUHQFHVWRGROODUV DUH8QLWHG6WDWHVGROODUV UNCTAD/DITC/CLP/2012/1 ACKNOWLEDGEMENT 3 ACKNOWLEDGEMENT UNCTAD’s voluntary peer reviews of competition law and policies are conducted at the annual meetings RIWKH,QWHUJRYHUQPHQWDO*URXSRI([SHUWVRQ&RPSHWLWLRQ/DZDQG3ROLF\RUDWWKHÀYH\HDUO\8QLWHG Nations Conferences to Review the UN Set. The substantive preparation is carried out by UNCTAD’s Competition and Consumer Policies Branch (CCPB) under the direction of Hassan Qaqaya, Head of CCPB. This report was prepared for UNCTAD by Alberto Heimler, on leave from the Italian Authority and cur- rently Professor of Economics at the Scuola Superiore della Publica Amministrazione, the Italian School of Government. It is based on the reports on the three national assessment reports for the tripartite voluntary peer review of competition law and policy in the United Republic of Tanzania, Zambia and Zimbabwe prepared by Thulasoni Kaira, Chief Executive and Secretary to Botswana Competition Com- mission, Alex Kububa, Director, Competition and Tariff Commission, Zimbabwe, and Allan Mlulla, Director of Research, Mergers and Advocacy, Fair Competition Commission, United Republic of Tanzania. The substantive backstopping and review of the report were the responsibility of Elizabeth Gachuiri. Geofrey Mariki, Director General of the United Republic of Tanzania’s Fair Competition Commission, Alex Kububa, Chilufya Sampa, Executive Director, Competition & Consumer Protection Commission of Zambia and Ulla Schwager provided valuable feedback. COMPARATIVE ASSESMENT ASSESMENT COMPARATIVE 6 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE TABLE OF CONTENTS NOTE ............................................................................................................................................2 ACKNOWLEDGEMENT ...............................................................................................................3 PREFACE ......................................................................................................................................7 I. Introduction .............................................................................................................................7 II. Comparative Review ..............................................................................................................7 1. The substantive part of the law: is a common interpretation possible? ....................................................... 8 2. The investigative powers of competition authorities ........................................................................................ 9 3. Sanctions ....................................................................................................................................................................11 4. Judicial review ..........................................................................................................................................................13 5. Merger Control .........................................................................................................................................................14 6. Public resources dedicated to antitrust enforcement .....................................................................................17 7. Enforcement Record ...............................................................................................................................................19 III. Regional Agreements ........................................................................................................ 20 IV. Findings and Recommendations .................................................................................. 21 1. Recommendations to be implemented at the national levels ......................................................................21 PREFACE 7 PREFACE This comparative assessment report is part of the improve the workings of the market mechanism is voluntary tripartite peer review of competition very much the same as that behind the introduc- policies in the United Republic of Tanzania, Zam- tion of antitrust provisions in the European Union bia and Zimbabwe. The purpose of this tripartite Treaty back in 1957. Also in Europe the antitrust peer review is to assess the legal framework and laws were meant to make sure that legal or regu- COMPARATIVE ASSESMENT COMPARATIVE enforcement experiences in each of the three ju- latory protectionism dismantled by the European risdictions; draw lessons and best practices from Treaty would not be replaced by private competi- each jurisdiction; and examine the value-added of tive restrictions. the harmonization of competition law and its en- The reference to the European Union in this com- forcement in this subregion, as well as increased parative review will sometimes be used for helping cooperation. The national reports review the the three jurisdictions avoid some of the mistakes competition policy systems in each of the above- mentioned countries, and serve as a basis for the the European Union went through, especially in present comparative assessment report that ad- its early days. Furthermore, the example of the dresses pertinent issues from a subregional per- European Union may help to evaluate the more spective. recent institutional developments associated with the regionalization of antitrust and the setting up I. INTRODUCTION of regional groupings, like COMESA, EAC, SADC, to which these jurisdictions belong2. The United Republic of Tanzania, Zambia and Zimbabwe have all introduced their competition II. COMPARATIVE REVIEW law in the mid 1990s prompted by a process of privatization and liberalization that started in the The purpose of the tripartite peer review is to ana- late 1980s. After years of experimentation with lyze antitrust laws enforcement experiences of The a centrally planned economy, the opening up of United Republic of Tanzania, Zambia and Zimba- PDUNHWVZDVVHHQDVWKHVROXWLRQWRODUJHLQHIÀ- bwe. The objectives pursued are to identify com- ciencies and slow economic growth. The process monalities and differences and to provide some of liberalization is not yet complete and regulatory feedback on the actions to be undertaken in order restrictions are still widespread, a legacy of colonial for the competition authorities of these countries times and socialist tradition.1 to become more effective. On the substantive In all the
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