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Analysis Of Competition Law In Kenya

2032 words - 9 pages

Critically examine and analyze the provisions relating to competition law enforcement authorities under the completion act 2010.
Look at the weaknesses strengths of the competition law enforcement authorities and make suggestions.
Before the introduction of the new Competition Act, the Kenyan investment market was unfavorable for competition, as new investors needed financial and political muscle to gain commercial mileage hence companies had to align themselves with political strong men or merge with them, against perceived competitors inorder to carve themselves a niche. This was especially the case for new businesses wishing to operate in sectors ...view middle of the document...

The Act requires that five members of the authority who are to be appointed by the Minister, to be vetted and approved by Parliament. This mitigates corruption and abuse of office, and allows the public to participate in the process.
Section 10(f) states that members of the authority must be persons who are experienced in competition and consumer welfare matters. The Authority has adequate human resource to allow it to perform its functions. It may also engage consultants and experts to assist it to perform its functions. The employees and consultants are required to be hired competitively. This implies that the Authority is able to tap the most qualified candidates for the positions.
The Competition Act is supreme: If there is any conflict between its provisions and provisions of other laws with regard to matters concerning competition. For instance, the Price Control (Essential Goods) Act provides for the regulation of the prices of essential commodities in order to secure their availability at reasonable prices and for connected purposes. Although the Price Control Act promotes anti- competitive practice, the Competition Provisions allow cooperation and exchange of information to avoid conflict in the eventual directive, while promoting consumers’ welfare.
The Act in section 7 creates the Authority, an autonomous public institution, “The Authority shall be independent and shall perform its functions and exercise its powers independently and impartially without fear or favour.” This provision ensures that the authority is not compromised by political forces and the quality of the decisions they make are just and fair. Structure of the Competition Authority:

The Finance minister is responsible for policy; a board, appointed by the minister, vetted and approved by Parliament is responsible for management, while the Director-general, appointed by the board and approved by Parliament, is responsible for regulation.
This is a modern form of regulatory institutions arrangement which ensures separation of responsibilities and hence enhancement of accountability.
An appellant body, the Competition Tribunal, is also established with the mandate of adjudicating appeals resulting from determination of the authority. The authority has the primary jurisdiction in regard to competition and consumer welfare matters in the economy and is the government’s advisor on competition matters.
However there will be a conflict of jurisdiction: The Common Market for Eastern and Southern Africa (Comesa) Regulations or the Competition Act? Need for harmonization of the Competition Act and Regional laws on trade.
Trade liberalisation within Comesa, and the elimination of tariff and non-tariff barriers, has enhanced competition in the region. In order to ensure fair competition and transparency among economic operators, Comesa has adopted a regional competition policy namely Comesa Competition Regulations.
By promoting fair competition, the regional...

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