CA has no market inquiry powers

Botswana’s Competition Author- ity does not have market inquiry powers, a report by the African Competition Forum (ACF) has found.

“Across the four participating countries, there was a common challenge of data collection in terms of the market participants’ unwillingness to submit information voluntarily. In Botswana and Namibia, this problem was compounded by the lack of market inquiry powers in their respective legislation,” the ACF report on the study of the poultry industry in Botswana, Namibia, South Africa and Zambia said.

Market inquiry powers are an important tool of competition law and give competition authorities formal powers to subpoena

information from companies. Unlike South Africa, Botswana doesn’t have such powers in its competition law. According to the ACF report, local poultry farmers were not willing to provide information that the researchers wanted. This impedes the work of the Competition Authority because as its director of communications and advocacy, Gideon Nkala says, companies can just decide to “drag their feet” when asked to provide vital information and when they cooperate, it would be “out of the goodness of their hearts.”

“Unlike the Directorate on Corruption and Economic Crime and the Botswana Unified Revenue Service, we don’t have statutory powers to compel companies to disclose information," Nkala states. South Africa, which introduced its competition law in 1998, also had the same problem until 2009 when it amended its Competition Act by adding a market inquiry powers provision. In terms of the latter, the country’s competition authority is empowered to issue summons to compel persons to appear before the inquiry and to compel evidence that has a bearing on a subject matter to be presented.

On January 6 this year, the South African Competition Authority began a market inquiry into the private health sector. There is concern in that country about high prices in private health care and the Authority is using its powers to investigate the general state of competition in this sector to determine what can be done to achieve accessible, affordable, high quality and advanced private health care.

The report from this study should be of particular interest to Botswana whose private health sector has significant South African investment. The poultry industry report recommends that the ACF should come up with “a model law to guide market inquiries which can then be adapted and adopted by member competition authorities.” Noting that in its nature “the law is always being amended”, Nkala says that in the period that it has been in existence, the CA is learning some valuable lessons that it hopes to use to get the Competition Act knocked into shape.

“We are currently working on some possible amendments and there is a likelihood of incorporating market inquiry powers. We will take such proposals to parliament through the ministry of trade and industry,” Nkala says. Writing in the latest edition of the Global Competition Review, an international antitrust and competition law journal, CA chief executive Tula Kaira said that while the Act has only been in force for two years, it has become clear that some of its areas require immediate amendment to include legal protection for Authority officers as well as members of the Competition Commission.

“Where officers of the Authority and members of the Commission carry out their statutory functions in good faith and due care, we believe that they should not be subject to lawsuits in their personal capacity,” Kaira wrote in an article titled ‘The Competition Authority in Botswana towards 2014.’ Presently, heads of state, judges and members of parliament and diplomats in execution of their official duties enjoy such immunity from prosecution.