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The Rapid Rate of Competition Law Developments in Nigeria, Others

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By Lerisha Naidu, Angelo Tzarevski, Sphesihle Nxumalo and Zareenah Rasool

Baker McKenzie’s latest Africa Competition Report 2022 provides a detailed analysis and overview of recent developments in competition law enforcement and competition policy in 32 African jurisdictions and regional bodies.

The report outlines how, over the past two years, African competition regulators have actively engaged in efforts to address pandemic-related challenges, but there has also been a general upward trend in competition policy enforcement across the continent.

This trend is highlighted by a number of significant recent developments in competition law regulation across the continent. Countries and regions with recent competition law developments include the Common Market for Eastern and Southern Africa (COMESA), Egypt, Ethiopia, Ghana, Kenya, Mauritius, Mozambique, Namibia, Nigeria and South Africa.

COMESA

There were various developments with regard to COMESA in 2021. In February 2021, the COMESA Competition Commission issued a Practice Note in which it amended the interpretation of the term “operate”. Prior to this, a party “operated” in a COMESA Member State if it had turnover or assets in that Member State in excess of $5 million. This requirement has now been removed, effective from 11 February 2021, and a party will “operate” in a COMESA Member State merely if it is active in it (without a minimum turnover or asset threshold). The impact of this will be to make it easier for a transaction to fall within the scope of the COMESA merger control regime.

The COMESA Commission has also recently issued Draft Guidelines on Fines and Penalties, Draft Guidelines on Settlement Procedures and Draft Guidelines on Hearing Procedures.

In September 2021, the COMESA Commission issued its first penalty for failure to notify a transaction within the prescribed time periods, which penalty amounted to 0,05% of the parties’ combined turnover in the Common Market in the 2020 financial year. This was imposed in relation to the proposed acquisition by Helios Towers Limited of the shares of Madagascar Towers SA and Malawi Towers Limited.

In December 2021, the COMESA Commission imposed a fine for failure to comply with a commitment contained in a merger clearance decision.

The COMESA Commission also conducted eight investigations into restrictive business practices in 2021.

Egypt

There were numerous recent developments in Egypt, including in November 2020, when the Competition Authority announced that the Egyptian Prime Ministry had approved the Prime Minister’s draft law amending certain provisions of the Egyptian Competition Law 3/2005.

In February 2021, the Egyptian parliament’s Economic Affairs Committee started the discussions on the new amendments. The Competition Authority has also recently initiated market inquiries in relation to multiple sectors including healthcare, food, electronic and electrical appliances, automotive, real estate, media and petroleum sectors.

In April 2021, the Economic Court of Cairo issued a ruling in a criminal case brought in March 2020 by the Competition Authority, against five individual poultry brokers for colluding to fix the price of chicken to the detriment of consumers and chicken breeders. The court fined each broker 30 million Egyptian pounds (approx. $1.6 million) for agreeing to fix the price of a kilogram of chicken.

In July 2021, the Competition Authority initiated a criminal case against two companies who agreed to submit identical offers in one of the practices of the General Authority for Veterinary Services, in violation of Egyptian competition law.

The head of the Competition Authority announced plans for the creation of an Arab Competition Network to enhance cross-border cooperation between antitrust enforcers in the Middle East. The ACN would be the first to provide Arab competition authorities with an official platform to meet and discuss prominent issues and impending changes to antitrust law. The network would be run by the 22 members of the League of Arab States, which includes Egypt, Syria, Lebanon, Iraq, Jordan and Saudi Arabia, among others.

Ethiopia

In Ethiopia, the Trade Competition and Consumer Protection Authority is working on regulations to provide guidance on the application of the Trade Competition and Consumer Protection Proclamation (No 813/2013). Proclamation No. 1263/2021, which is expected to be enacted and come into force in 2022, transfers the powers of the Trade Competition and Consumer Protection Authority to the Ministry of Trade and Regional Integration.

Ghana

In Ghana, a draft Competition and Fair Trade Practices Bill is before parliament for consideration.

Kenya

The Competition of Authority in Kenya finalised its study into the regulated and unregulated credit markets in the country and issued its report in May 2021. The Authority further developed the Retail Trade Code of Practice 2021, in consultation with stakeholders in the retail sector, to address the abuse of buyer power issues arising from the sector. Also in 2021, the Competition Authority conducted a dawn raid in the steel industry and issued draft joint venture guidelines, to clarify the rules and filing requirements of joint venture arrangements.

Mauritius

The Competition Commission in Mauritius concluded a market study in the pharmaceutical sector on 8 June 2021.

Mozambique

There were numerous developments in competition law in Mozambique in 2021, including that the Competition Regulatory Authority became operational in January 2021. Regulations on Merger Notifications Forms were enacted by means of Resolution No. 1/2021 of 22 April 2021. The Regulations prescribe the different forms to be completed for merger notifications, as well as the details of the information and documentation required. Regulations on Filing Fees were enacted by means of Ministerial Diploma No. 77/2021 of 16 August 2021. Filing fees are currently set at 0.11% of the turnover of the parties in the previous year, up to a maximum of MZN 2,250,000 (approx. $35,000). Amendments to the Competition Regulations were enacted by means of Decree No. 101/2021 of 31 December 2021.

Namibia

A Competition Bill is in progress in Namibia, and the Competition Commission expects to submit the final version of the Competition Bill to the Ministry of Industrialisation and Trade by the end of June 2022.

Nigeria

On 2 August 2021, Nigeria adopted the Merger Review (Amended) Regulations 2021, which set out new fees applicable for merger filings. The Federal Competition and Consumer Protection Commission launched and publicised an investigation into the alleged anticompetitive conduct of five companies in the shipping and freight forwarding industry in October 2021.

South Africa

There were various developments in South Africa in 2021, including in May 2021, when the Competition Commission launched the Online Intermediation Platforms Market Inquiry, focusing on four broad online intermediation platforms and market dynamics that specifically affect business users – e-commerce marketplaces, online classified marketplaces, software app stores and intermediated services (such as accommodation, travel, transport and food delivery). The Inquiry is ongoing with a provisional report scheduled for release on 10 June 2022, and the final report scheduled for release in November 2022.

In April 2021, the Commission released its market inquiry reports on Land Based Public Transport. Furthermore, in April 2021, the Commission published its final report on an impact assessment study it conducted in relation to COVID-19. The report sets out the findings of the Competition Commission regarding the impact of the COVID-19 block exemptions and the enforcement work done by the Competition Commission during the pandemic. The Competition Commission’s fifth Essential Food Pricing Monitoring Report, which is released quarterly, focused on tracking the impact of the COVID-19 pandemic and consequent economic crisis on food markets.

In May 2021, the Commission issued, for comment, draft guidelines on Small Merger Notifications, which contain specific guidance applicable to the assessment of digital mergers.

Notably, 2021 was the year when the Commission prohibited a merger solely on public interest grounds, making it the first transaction to be prohibited on non-competitive grounds. Ultimately, however, the merger was conditionally approved before the Competition Tribunal.

In November 2021, the Commission released its Economic Concentration Report, which highlighted patterns of concentration and participation in the South African economy. The report includes details on the Commission’s power to launch market inquiries into highly concentrated industries, as well as its increased authority to impose structural remedies on businesses in these sectors.

In March 2022, the Commission issued Guidelines on Collaboration between Competitors on Localisation Initiatives, which are aimed at providing guidance to industry and government on how industry players may collaborate in identifying opportunities for localisation and implementing commitments related to localisation initiatives in a manner that does not raise competition concerns.

In March 2022, the Commission launched a market inquiry into the South African fresh produce market, which will examine whether there are any features in the fresh produce value chain, which lessen, prevent or distort the competitiveness of the market.

The Commission concluded various settlement agreements with market players (e.g., grocery retailers and laboratories) to reduce the prices of goods and services.

Lerisha Naidu, Partner, Angelo Tzarevski, Associate Director, Sphesihle Nxumalo, Associate and Zareenah Rasool, Associate, Competition & Antitrust Practice, Baker McKenzie Johannesburg

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Adeleke’s Leadership: A Dance of Transformation in Osun

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Adeleke’s Leadership

By Bamikole Omishore

“Great dancers are not great because of their technique; they are great because of their passion.” – Martha Graham.

In the world of dance, few have mastered the art of movement with the grace and intensity of Martha Graham, whose choreography was marked by a profound understanding of human expression and transformation.

Graham’s dances were not mere performances; they were powerful reflections of the human condition, a tapestry woven with raw emotion, rhythm, and purpose. In many ways, the leadership of Osun State Governor, Ademola Adeleke, mirrors this very essence of dance—dynamic, passionate, and forward-moving.

Governor Adeleke has taken the helm of Osun State with the kind of zeal and vision that echoes the intensity of a choreographed performance, where each step is deliberate, and every movement contributes to a greater narrative of transformation. His approach to governance is not just about policy execution but about creating an environment where the people of Osun are empowered, uplifted, and given the tools to thrive.

In his leadership, one sees a choreography of progress, dedication, and unwavering commitment to the welfare of his people. Considering the precarious state of Osun when he took office on November 27, 2022, Adeleke could not have done otherwise—every step had to be deliberate and tailored for the development of the people.

Much like Martha Graham’s focus on the expression of the individual within a broader context, Governor Adeleke’s leadership shines in its ability to focus on the unique needs of Osun State’s diverse communities, while also aligning them with the collective goal of the state’s development. He has taken the pulse of Osun and, much like a skilled dancer attuned to the rhythm of the music, has set a course for the state that resonates with both empathy and pragmatism.

Governor Adeleke’s impact is tangible, and his passion for the people is infectious. His administration has not shied away from confronting the most pressing issues facing the state, including infrastructural deficits, educational reform, and economic revitalisation. Just as Martha Graham redefined modern dance by introducing new techniques and forms, Governor Adeleke has redefined governance in Osun by introducing innovative policies, modernising systems, and fostering an environment where growth is inevitable.

One of the cornerstones of Adeleke’s governance has been his focus on improving the education sector. Under his leadership, 631 classrooms and offices have been rehabilitated across 125 basic schools, while 323 new classrooms, halls, and laboratories have been constructed in 96 schools.

Additionally, new toilets, boreholes, motorised water wells, and perimeter fences have been installed in several schools. The Governor has also upgraded the Educational Management Information System (EMIS) units in local education authorities to improve data collection and management. Adeleke’s administration has sponsored 200 secondary school teachers and 20 ICT experts to train on remote learning platforms and has trained 1,004 teachers on cooperative learning strategies.

The governor has also initiated the recruitment of 5,000 new teachers to address vacancies in public schools. For tertiary education, Adeleke has invested in infrastructure, including completing a 52-office complex at Osun State University (UNIOSUN), thus becoming the first Governor since 2011 to execute a project at the institution.

He also funded the construction of the first student hostel at the University of Ilesa (UNILESA). He approved the permanent employment of over 230 temporary staff at UNILESA and supported the training of 137 academic staff at the Osun State College of Technology and 1,120 health educators in collaboration with international organisations.

He also revived the indigenous bursary scheme, providing financial support to over 3,100 students and N105,000 to Osun indigenes in law schools across Nigeria.

Governor Adeleke’s approach to healthcare mirrors the precision and care found in Graham’s choreography. Upon taking office, he inherited a healthcare system in disarray. However, he quickly launched the Imole Surgical and Medical Outreach, which provided free medical treatment to over 50,000 residents across Osun, addressing a wide range of conditions from cataracts and hernias to diabetes, hypertension, and malaria.

On a long-term basis, Adeleke’s administration has focused on improving the state’s healthcare infrastructure. This includes the rehabilitation of 345 primary healthcare centres (PHCs), with 200 already upgraded to include 24/7 power and water facilities, while the remaining 145 centres are undergoing renovations.

His administration has also ensured a regular supply of medications to these centres and has partnered with development organisations to provide essential medical equipment. Governor Adeleke’s healthcare policies have expanded health insurance coverage to include informal sector workers and Osun’s senior citizens, ensuring comprehensive healthcare access for all, including persons with disabilities.

Infrastructure development has been another focal point of Adeleke’s leadership. Osun State’s infrastructure, particularly in the road sector, was in dire need of attention when he assumed office. In the past two years, his administration has constructed many roads and has embarked on additional projects to extend the state’s road network.

Notable projects include the Oke-Fia overhead bridge in Osogbo, the first-ever overhead bridge in Ile-Ife, and the Akoda-Baptist-Oke Gada dual carriageway in Ede. These projects are expected to improve traffic flow, ease transportation, and spur economic growth by connecting key areas of the state. Adeleke’s commitment to infrastructure extends beyond urban centres.

Under his leadership, Osun State has rejoined the Rural Access and Mobility Project (RAAMP-3), focusing on improving rural road networks. These improvements are vital for enhancing rural connectivity, facilitating trade, and providing essential access to health and education services in remote areas.

The Governor’s unwavering passion for the people of Osun is also evident in his economic policies, which are focused on stimulating local industries, attracting investment, and reducing unemployment. Like Martha Graham’s ability to tap into the emotional core of her dancers, Adeleke’s governance taps into the heart of Osun’s potential, nurturing the state’s resources, businesses, and talents.

Governor Adeleke is driving sustainable development in Osun State with initiatives that align with the Sustainable Development Goals (SDGs). At the heart of his work is the Senator Isiaka Adetunji Adeleke Estate, a development that balances modern infrastructure with the need for planned, resilient communities. Governor Adeleke’s vision is not just about physical structures—it extends into the human realm. In SDG 4 (Quality Education), he has created the Alternative School for Girls, offering education to those who would otherwise be left behind.

Perhaps most importantly, Governor Adeleke’s leadership is marked by a deep sense of inclusivity and unity. Just as a dance troupe requires each member to work in harmony for the performance to succeed, Adeleke has fostered a sense of collective purpose in Osun.

Governor Ademola Adeleke has brought a new rhythm to Osun State, one driven by passion, innovation, and an unwavering commitment to the welfare of the people. Much like Martha Graham’s transformative choreography, which changed the landscape of modern dance forever, Adeleke’s governance has redefined the landscape of leadership in Osun —one that promises progress, unity, and a brighter future for all its citizens.

Omishore, a proud son of Osun state, writes from Ile-Ife

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Prepaid Debit Cards Can Enable Companies to Take Advantage of Increased Intra-African Trade

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Amber Thetford, Onafriq

By Amber Thetford

As businesses seek to expand across African borders, cashless payment solutions offer a safer method of transferring money. One offering, prepaid debit cards, provides security while mitigating many infrastructure and regulatory challenges, writes Amber Thetford, the Chief Product Officer for Card Issuing and Processing at Onafriq. 

As the African Continental Free Trade Area Agreement (AfCTA) increasingly moves into the operational phase, it is becoming clearer that part of its success lies in ensuring that entrepreneurs and small businesses can effectively trade and receive payments across borders.

As the African Union has noted, the trade area will be the biggest since the World Trade Organization was formed in 1995. Africa’s population is currently 1.2 billion people, a figure that is expected to reach 2.5 billion by 2050. 

South Africa took its first step in making AfCTA a reality, when the now-former Minister of Trade, Industry, and Competition, then Ebrahim Patel, launched the implementation of the start of preferential trade this year. The South African Revenue Service also certified two consignments to Ghana and Kenya.

Yet, with trade expected to grow among members from the current between 15% and 18%, a safe way of moving money is required given the risk that cash presents. Some nine-tenths of transactions in sub-Saharan Africa are, based on World Bank information, in cash. 

The large amounts of cash involved in trade are also cumbersome and difficult to physically transport between markets.  Card payments, part of the digital ecosystem, can enable efficient, secure, and transparent transactions that are essential for facilitating trade.

Card payments can eliminate the need for manual intervention and reconciliation when it comes to banking and bookkeeping. This, the World Bank states, makes them, on average, three times more cost-effective than conventional purchase order costs.

While mobile money payments have greatly improved Africa’s ability to make cross-border payments, they do not meet the full scope of needs of individuals or businesses. As the United Nations points out, there are regulatory bottlenecks, while a lack of interconnectivity among mobile transactions in some countries means that people cannot transfer money across borders. Moreover, limitations of infrastructure, accessibility, and interoperability make it difficult for their users to access the global digital economy. As a result, this type of cross-border payment can be limited.

There are solutions to these dilemmas. Prepaid cards can enable businesses and individuals to transact with global institutions and marketplaces without the need to own a bank account. This option removes a pain point for a business that would otherwise need to accept local alternative payment methods or cash. Navigating challenges like high fees, currency shocks and a lack of access to traditional banks can be simplified through prepaid cards. This makes them a pivotal instrument that enhances Africa’s connection to the global economy. 

For example, one of our customers provides payroll solutions for seafarers and cruise ships, which frequently travel to different countries. Once the card is loaded, it is very convenient for a sailor to use it as one would a normal debit card and swipe to pay for purchases or transmit money across borders. The beauty of this option is that whoever is loading the card with money, can be based anywhere in the world, with the same also being true of the person holding the card.

Prepaid cards can also be used to manage expenses because they can be provided to managers of, for example, a bookstore, who can then make independent decisions about business-related purchases, but only up to a certain amount. This has the added advantage of speeding up operations as there are no lengthy delays across the company when it comes to acquiring stock, while it also goes some way towards eliminating fraud as the card has a set limit.

Larger companies with staff who travel extensively can also provide gratuities for their employees, who can then cover incidental expenses without having to dip into their pockets or bring back paperwork to be reimbursed.

A platform that simplifies a user’s ability to transfer money to cards brings the AfCTA dream closer to reality. The versatile power of prepaid cards can be used to promote free trade between countries and unite Africa’s fragmented payment landscape. 

Prepaid solutions can aid businesses seeking to operate in other African countries to thrive – making AfCTA’s aim a reality and boosting economic growth for all.

Amber Thetford is the Chief Product Officer for Card Issuing and Processing at Onafriq

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Examining Seyi Tinubu’s Potential Lagos Governorship Bid

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By Kenechukwu Aguolu

The possibility of Seyi Tinubu, the son of the President of Nigeria, President Bola Ahmed Tinubu contesting for the Lagos State governorship in 2027 has become a significant topic of public discourse, raising important questions about the dynamics of political dynasties and democratic values in Nigeria. While his constitutional eligibility to vie for the position under Section 177 of the Nigerian Constitution is undisputed, the discussion brings to light broader issues of political inclusivity, leadership by merit, and the role of family legacy in modern democracy.

The Nigerian Constitution outlines clear qualifications for anyone aspiring to the office of governor. A candidate must be a citizen of Nigeria by birth, at least 35 years old, a member of a political party, and educated to at least the secondary school level or its equivalent. Based on these criteria, Seyi Tinubu, as a citizen by birth and meeting the age and educational requirements, is constitutionally qualified to run for the office, provided he secures the sponsorship of a political party.

Political dynasties are not exclusive to Nigeria; they are a global phenomenon that has influenced governance in many parts of the world. In the United States, for example, the Bush family has held significant political positions, including George H.W. Bush as the 41st President, George W. Bush as the 43rd President and former Governor of Texas, and Jeb Bush as the Governor of Florida. Similarly, the Kennedy family produced John F. Kennedy, the 35th President, and prominent figures like Robert Kennedy, a U.S. Senator and Attorney General, and Ted Kennedy, a long-serving U.S. Senator. The Clinton family also left its mark, with Bill Clinton serving as the 42nd President and Hillary Clinton as a Secretary of State and presidential candidate. These families earned their positions through electoral victories, reinforcing the importance of public trust and the democratic process.

If Seyi Tinubu decides to run, his candidacy will face considerable scrutiny. Questions about whether his aspirations are rooted in personal merit or familial advantage will dominate public discourse. In Nigeria, where perceptions of nepotism and concerns about equitable access to leadership persist, the candidacy of a high-profile figure like Seyi Tinubu will polarize opinions. To succeed in such an environment, he would need to present a compelling policy agenda and demonstrate his capability to govern effectively. His father’s legacy as a former Lagos governor and current president could either bolster his credibility or attract criticism, depending on public sentiment.

Ultimately, the decision rests with the electorate. Lagosians possess the constitutional authority to evaluate candidates based on their merits and to choose leaders who align with their aspirations for the state. Democracy thrives on the principle that leadership is determined by the people, not inherited by default. Seyi Tinubu’s constitutional right to contest for the governorship reflects the democratic ideals enshrined in Nigeria’s laws. However, his candidacy, like that of any other aspirant, must be judged on its merit, the policies he proposes, and the competence he demonstrates. In the end, the will of the people should guide leadership selection, ensuring that governance remains a reflection of collective choice rather than familial legacy.

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