a tripartite report - Unctad
a tripartite report - Unctad
a tripartite report - Unctad
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
150 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE<br />
<br />
imposed under this Act”.<br />
The Secretariat submits to the Board of Commis-<br />
mendations<br />
from its investigations into competition<br />
and consumer concerns.<br />
3.4 The Adjudicative Wing<br />
The Board of Commissioners is the adjudicative<br />
wing of the Commission, which makes determinations<br />
on competition and consumer concerns that<br />
have been investigated by the Secretariat. The<br />
Board however does not have powers of imposing<br />
criminal sanctions since that is the preserve of law<br />
courts. The Commission only refers to the Attor-<br />
per se<br />
prohibited competition and consumer cases.<br />
The Board composed of seven members appointed<br />
by the Minister in terms of paragraph 1(1)<br />
of the First Schedule to the Act, consisting: (a) a<br />
representative from the Ministry responsible for<br />
commerce; (b) a representative of the Attorney<br />
rience<br />
and knowledge in matters relevant to the<br />
Act. The Executive Director of the Commission<br />
is an member of the Board in terms of<br />
section 6(3) of the Act. The Chairperson and the<br />
Vice-Chairperson of the Board is appointed by the<br />
Minister from amongst the members of the Board.<br />
A member of the Board may be removed from of-<br />
<br />
The membership of the Commission’s<br />
Executive Director, who is the head of the Commission’s<br />
investigative wing, on the Board of Commissioners,<br />
which is the adjudicative wing of the<br />
est<br />
concerns because of his involvement in both<br />
the investigative and adjudicative functions of<br />
the Commission. This might present appealable<br />
grounds on determinations and decisions made<br />
by the Board on competition and consumer protection<br />
cases. It was explained that the Executive<br />
Director, being an member of the Board,<br />
does not have voting rights on competition and<br />
consumer protection cases being determined by<br />
the Board. His presence during the Board’s deliberations<br />
on such cases is only as a resource person.<br />
This should be made very clear to all stakeholders,<br />
particularly respondents in competition<br />
and consumer cases, to avoid unnecessary and<br />
costly challenges.<br />
It is recommended that it be made very<br />
clear through a Statutory Instrument<br />
<br />
Executive Director on the Commission’s<br />
Board of Commissioners does not give<br />
him voting rights on competition and<br />
consumer protection cases being<br />
determined by the Board.<br />
The Minister has more powers on the appointment<br />
of members of the Board of Commissioners<br />
under the new Act than under the old Act.<br />
Under the old Act, the Minister was restricted to<br />
appoint only those members of the Board who<br />
were nominated by their respective institutions,<br />
while under the new Act the nomination system<br />
has been removed. One of the stakehold-<br />
<br />
visit to Zambia (CUTS International) felt that with<br />
no statutory criterion on the appointments by<br />
the Minister, the process could be done on political<br />
basis, thus compromising the credibility of<br />
the Board’s decision-making. The old system of<br />
Board appointments was also preferred, or alter-<br />
<br />
the Act (i.e., the private sector) in the appointment<br />
system.<br />
It is however also noted that the old system of<br />
Ministerial appointments based on nominations<br />
<br />
the independence of the Board’s decision-making<br />
if the nominated members felt obliged to support<br />
the players from their respective sectors regardless<br />
of the merits of the case or issue under consideration.<br />
More seriously is the power of the Minister to remove<br />
a member of the Board of Commissioners<br />
without giving any reasons, which can be used for<br />
political reasons not related to the exigencies of<br />
the Commission.<br />
It is recommended that the Act should<br />
provide for clear grounds upon which<br />
<br />
a member of the Commission’s Board<br />
of Commissioners.