Competition Law and Policy

You are invited to the first of a Discussion Series "Assessing Recent Developments in the Negotiation and Implementation of the African Continental Free Trade Area".

The suspension of operations as a result of government measures towards curbing Covid-19, should not be encouraged. Competition agencies must remain vigilant in protecting vulnerable consumers with no bargaining power from unscrupulous businesses. Further, while cartel conduct is per se illegal, it is the responsibility of the competition agencies to provide the business community with guidance on how they can operate during the crisis and at the same time comply with competition law.  Covid-19 has also proved to us that, competition agencies need to reinvent their enforcement including the adoption of digital technologies such as artificial intelligence and investing in the security and privacy concerns of the people. Integration of technology is no longer a choice.

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Recent years have seen a remarkable upturn in scholarship on copyright in Africa in general and its intersection with competition law and policy frameworks in particular. Multi-Sided Music Platforms and the Law takes the discussion further through a detailed examination of global platforms such as YouTube, SoundCloud and Facebook and the profound impact these firms have on the creative sectors and the economy more broadly of developing countries.

In July 2019, the African International Economic Law Network (AfIELN), held its Fourth Biennial Conference under the theme “Africa and International Economic Law in the 21st Century” at the Strathmore University Law School (Nairobi, Kenya). This symposium contains some of the papers presented at this conference in their abridged forms. Before introducing the authors’ views on this Conference’s broader theme, we provide the important context under which the Conference took place.

Fox and Bakhoum’s fairly broad analysis focusing on West, East, and Southern African countries brings to fore the real challenges at play in Africa. It is a fragmented, stratified yet at times vertically united legal and policy landscape. While they observe the need for convergence of competition law at the continental or regional level, they note the different states of developmental progress among sub-Saharan African countries hence concede the need for the fragmented approach

Fox and Bakhoum contextualize competition law by describing (in chapters 2 and 3) the structure and other key characteristic of markets in numerous African countries, including the economic and political history of those countries and their markets, as well as the legacies of colonization and decolonization – and by highlighting more broadly the economic challenges and needs of the people of Africa.

Arguably, Fox and Bakhoum’s Making Markets Work for Africa does more than take part in this literature, it helps bring it into focus, crystallizing its insights and articulating a number of its internal debates.  Perhaps this assessment should be nuanced a bit.  Despite their extensive footnotes and their admirable collaborative scholarship and drive to work from and with African sources (for instance with the Quarterly Competition Review produced by CCRED), the book is focused more on the policy problem than on the existing literature about the problem.  This is not a book about books; it is a book about identifying a complex economic situation with challenges and opportunities and charting and driving a particular line in favour of a better life for Africa’s population.

The book provides illuminating insights on the contrasting historical and economic imperatives that drove the development of competition law and policy in the US, post World War II Europe and in selected countries on the African continent.  The authors explain that in the US, the development of antitrust law was a response to the industrial revolution and in its wake, large enterprises.  For almost a century, the US courts, interpreted antitrust law “to protect the weak from the strong.”  There was a significant shift in US antitrust law under the Reagan administration “away from economic democracy and towards efficiency” as the US focused on global competitiveness and economic power.