a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
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98 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE<br />
Zambia in 1994 enacted the Competition and Fair<br />
Trading Act, 1994 (No.18 of 1994). The Act’s date<br />
of Assent by the President was 11 May 1994, and<br />
it came into operation on 10 February 1995. The<br />
preamble to that Act listed the following as the<br />
primary objectives of the legislation “… to encourage<br />
competition in the country by prohibiting<br />
anticompetitive practices; to regulate monopolies<br />
and concentrations of economic power; to protect<br />
<br />
production and distribution of goods and services;<br />
to secure the best possible conditions for the freedom<br />
of trade; to expand the base of entrepreneurship;<br />
and to provide for matters connected with or<br />
incidental to the foregoing”.<br />
The Act provided in terms of its section 4(1) for the<br />
establishment of the Zambia Competition Commission<br />
(ZCC) as “a body corporate with perpetual<br />
succession and a common seal, capable of suing<br />
and being sued in its corporate name and with<br />
power, subject to the provisions of this Act, to do<br />
all such acts and things as a body corporate may<br />
by law do or perform”. The functions of the Commission<br />
in terms of section 6(2) of the Act included<br />
the following: (i) carrying out investigations into<br />
anticompetitive practices, and mergers, on its own<br />
initiative or at the request of any person; (ii) taking<br />
action to prevent or redress the creation of a monopoly<br />
situation through mergers or the abuse of<br />
a dominant position; (iii) providing information to<br />
the business community and consumers regarding<br />
their rights under the Act; (iv) developing and promoting<br />
standards of conduct for ensuring compliance<br />
with the provisions of the Act; and (v) doing<br />
all such acts and things as are necessary for the<br />
better carrying out of its functions under the Act.<br />
The Commission was established on 14 April 1997<br />
following the appointment of its members, comprising<br />
the Board of Commissioners, by the Minister<br />
of Commerce, Trade and Industry.<br />
The Competition and Fair Trading Act preserved<br />
gaging<br />
in activities that undermined rather than<br />
-<br />
<br />
through conduct or agreements designed to exclude<br />
actual or potential competitors. The law in<br />
that regard essentially addressed the problems of<br />
monopoly power in three major settings: (i) arrangements<br />
and agreements among otherwise<br />
<br />
<br />
<br />
<br />
principle was that any behaviour which had the<br />
object, or effect, of substantially lessening competition<br />
in a market should be prohibited. The main<br />
types of anticompetitive conduct which were prohibited<br />
included the following: (i) anticompetitive<br />
agreements and exclusionary provisions, including<br />
primary and secondary boycotts, with a per se<br />
stantial<br />
market power for the purpose of eliminating<br />
or damaging a competitor, preventing entry<br />
or deterring or preventing competitive conduct;<br />
(iii) exclusive dealing which substantially lessen<br />
competition, with third line forcing prohibited per<br />
se; (iv) resale price maintenance for goods; and<br />
(v) mergers and acquisitions which substantially<br />
lessen competition in a substantial market. The<br />
second principle was that certain anticompetitive<br />
behaviour should be able to be authorized on the<br />
<br />
The enforcement of the Competition and Fair Trading<br />
Act, 1994 by the Commission was besieged<br />
by a number of various problems and constraints,<br />
as chronicled by the Commission’s competition<br />
practitioners in various publications. Problems and<br />
<br />
in its Strategic Plan: 2008-2011, as well as in its<br />
weekly newspaper column and quarterly Newsletter,<br />
and by Lipimile (2005) 117 relate to the following<br />
broad categories: (i) scope of application<br />
of the Competition and Fair Trading Act, 1994; (ii)<br />
substantive provisions of the Competition and Fair<br />
Trading Act, 1994; (iii) procedural aspects of the<br />
Competition and Fair Trading Act, 1994, including<br />
enforcement powers of the Commission; (iv) the<br />
Commission’s resources; (v) lack of Government<br />
support for the Commission; and (vi) a general<br />
lack of competition culture in Zambia:<br />
(i) Scope of application of the Competition and<br />
Fair Trading Act, 1994<br />
Coverage of Public Interest in the Act: it was<br />
noted the Zambian competition law did<br />
not refer directly to the promotion of public<br />
interest. That was seen as an anomaly since the<br />
<br />
competition should also be linked to broader<br />
economic and social policy objectives, instead