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ZAMBIA At the interview held with Zambian Breweries on Zambia, the Breweries expressed serious concerns over the Commission’s handling of the case. It was explained that the Commission “went out of its case in the media, and in its Newsletter, and that the publicity inspired many members of the public to make false claims against the Breweries, which harm. As a result, the Breweries was seriously considering suing the Commission. The above shows the impact of the Commission’s sensitization of the consumers of the effects of unfair trading practices. There was nothing wrong in the Commission publicizing the case since it involved the safety and health of consumers. As a result, Zam- that its products do not contain foreign bodies. There is debate over whether hybrid laws combining competition and consumer protection issues should be replaced by separate competition and consumer protection laws. The argument for separate competition and consumer protection laws is that hybrid laws only relate to unfair trading and do not take into account other pertinent consumer elements, such as the 8 basic consumer rights 153 . The combination of competition and consumer protection issues under one law however takes cognizance of the fact that the ultimate objective of competition policy is consumer protection and welfare. The COMESA Competition Regulations is also a hybrid law that combines competition and consumer protection issues in a single legislation, and Zambia, like all other COMESA member States, has an obligation to ensure that its national competition law conforms to the regional law for uniform and effective enforcement of the laws. 2.4 Procedural Issues The competition and consumer protection procedural issues in Zambia are provided for in Part VIII of the Act, on investigations and determination by Commission. Section 55(1) of the Act provides that “the Commission may, at its own initiative or on a complaint made by any person, undertake an investigation if it has reasonable grounds to believe that there is, or is likely to be, a contravention of any provision 131 of this Act”. There are therefore no restrictions in the Act on the sources of competition and consumer complaints that the Commission can investigate. This ensures investigation of all breaches of the Act regardless of the source of the complaint. The sources of complaints into competition and consumer protection cases are numerous, and include complaints from the aggrieved parties, referrals from government ministries and departments, including sector regulators, and initiations by competition authorities from their studies or inquiries, newspaper articles, etc. The Commission may however decide not to investigate a complaint. In that regard, section 56(1) of the Act provides that “the Commission shall, where it receives a request from any person to investigate a matter and determines that a request is frivolous or vexatious, dismiss the request and inform, in writing, that person of its decision and reasons therefore”. The Commission has been strengthened under the new Act in the undertaking of investigations by the appointment of Inspectors under section 7. Inspectors have statutory powers of conducting dawn raids and undertaking other inspections necessary for the gathering of information required for investigations. In that regard, section 7(4) provides that Inspectors may, with a warrant issued by a Magistrate, at any reasonable time do any of the following things: (i) enter and search any premises occupied by an enterprise or any other premises, including a private dwelling, where information or documents which may be relevant to an investigation may be kept; (ii) search any person on the premises if there are reasonable grounds for believing that the person has personal possession of any document or article that has a bearing on the investigation; (iii) examine any document or article found on the premises that has a bearing on the investigation; (iv) require information to be given about any document or article by the owner of the premises, or the person in control of the premises, or any person who has control of the document or article, or any other person who may have the information; (v) take extracts from, or make copies of, any book or document found on the premises that has a bearing on the investigation; ZAMBIA
132 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE (vi) use any computer system on the premises, or require assistance of any person on the premises to use that computer system, to search any data contained in, or available to the computer system, reproduce any record from the data, or seize any output from the computer for examination and copying; and (vii) attach and, if necessary, remove from the premises for examination and safeguarding any document or article that appears to have a bearing on the investigation. The Commission is also empowered in terms of section 55(4) of the Act to give written notices to any person requiring that person to furnish it with any information pertaining to any matter speci- or article which relates to any matter which the Commission considers relevant to the investigation. The notices can also require any person to appear before the Commission to give evidence into the investigation. Section 55(9) however provides that “nothing in this section compels a person to supply any document or information which the person would be entitled to refuse to produce or give in civil proceedings before any court”. This is in line with the general legal principle that one should not be forced to incriminate himself or herself. The Commission can however view the invocation of this section as an assumption of guilt, therefore requiring further investigations using other means. The need for due process and transparency in the undertaking of the Commission’s investigations is also strongly enshrined in the Act. In terms of section 55(3), the Commission is required to give written notice of the investigation to the person who is the subject of the investigation or to an enterprise which is suspected to be a party to the matter to be investigated. It is however noted that section 55(6) of the Act provides that “the Commission may, where it has reasonable grounds to believe that the giving of a written notice under subsection (3) … may materially prejudice its investigation, defer the giving of such notice until after the investigation is concluded”. This is important in cases of cartel investigations requiring possible dawn-raids in which prior notice of the investigation could result in evidence destruction. The Commission is also required in terms of section 55(2) to carry out public consultations on the subject matter of the investigation. The above ensures that the rules commonly known as the rules of natural justice are duly observed and, in particular, that all reasonable steps are taken to ensure that every person whose interests are likely to be affected by the outcome of the investigation is given an adequate opportunity to make representations in the matter. The Commission is further required in terms of section 55(10) to publish at the conclusion of an investigation a <strong>report</strong> of the inquiry and its conclusion. Section 57(1) of the Act allows the Commission to negotiate suitable arrangements with enterprises under investigation aimed at ensuring the discontinuance of the practice under investigation. The relevant provisions provide that “the Commission may, at any time, during or after an investigation under this Part, enter into a consent agreement with an enterprise under investigation or request the enterprise to give an undertaking in the prescribed manner and form”. This reduces the costs to both the Commission and the business community of protracted competition investigations. Section 62(1) also provides for the prohibition through injunctions or staying orders of certain acts pending investigation. This is in the case where: (a) the Commission “has reasonable grounds to suspect that an enterprise is a party to a prohibited agreement and has not completed its examination of the matter, but believes that there is the risk of serious or irreparable injury to a particular person as a consequence of the agreement”; (b) an enterprise is a party to an agreement which is subject to review, to a monopoly situation or to a merger, on which the Commission has opened but not completed an (i) there is a prima facie evidence that competition is being prevented, restricted, distorted or substantially lessened and that, in consequence, serious or irreparable damage may be caused to a particular person; or (ii) the enterprise is taking steps that would effectively pre-empt remedial action being taken that would restore the conditions of competition existing prior to the investigation. While staying orders are necessary in circumstances described above in section 62(1) of the Act, they need to be issued with extreme caution since they can have serious adverse effects on the competitiveness of the affected enterprises if the
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UNITED NATIONS CONFERENCE ON TRADE
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UNITUNITED NATIONS CONFERENCE ON TR
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2 VOLUNTARY PEER REVIEW OF CLP: A T
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COMPARATIVE ASSESMENT COMPARATIVE A
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PREFACE This comparative assessment
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PREFACE agreements. . In the United
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PREFACE Finally in the United Repub
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PREFACE be set at a percentage of t
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PREFACE the market price but constr
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PREFACE (d) the extent to which the
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PREFACE pendence is maintained and
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PREFACE the effectiveness of the or
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PREFACE practical solutions, for ex
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Page 176 and 177: ZIMBABWE TABLE OF CONTENTS PREFACE
Page 178 and 179: ZIMBABWE This report is part of the
Page 180 and 181: ZIMBABWE With the growing political
Page 182 and 183: ZIMBABWE of restrictive practices,
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ZIMBABWE divided according to geogr
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ZIMBABWE The Commission in 2006 whi
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ZIMBABWE to take care of themselves
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ZIMBABWE (under Section 9); basical
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ZIMBABWE Full scale investigation i
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ZIMBABWE (ii) to produce any book,
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ZIMBABWE The fact that CTC has a co
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ZIMBABWE tariat of technocrats, who
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ZIMBABWE Table 2: Number of Competi
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ZIMBABWE Regarding the handling of
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ZIMBABWE (Emphasis by the author) b
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ZIMBABWE Section 5 (1) (f) that pro
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ZIMBABWE Whilst the arguments can b
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ZIMBABWE Anti competitive agreement
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ZIMBABWE by conducting its case det
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