a tripartite report - Unctad

62 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
2.5.4 Fines to shareholders, directors
Where a person charged with an offence under
this Act is a body corporate, every person who, at
the time of the commission of the offence, was a
may be charged jointly in the same proceedings
with such body corporate and where the body
corporate is convicted of the offence, every such
shall be deemed to be guilty of that offence unless
he proves that the offence was committed without
his knowledge or that he exercised all due diligence
to prevent the commission of the offence73 .
spelt out in the law.
severally liable for the acts or omissions of any
A person who contravenes section 15 (dealing with
misleading or deceptive conduct); section 16 (i.e.
on false and misleading representations); warranty
implied under Part VI or a manufacturer’s obliga-
section but may be subject to compliance orders
under section 58 and compensatory orders under
section 5974 . It is not clear why this is the case (i.e.
ment
of these provisions problematic.
shareholders, directors and managers as under
on turnover and under Section 60(2) it is tied to a
age
or loss suffered by a person.
2.6 Statutory Limitations
Section 60(8) of the Act limits the statutory role of
the Commission in cases. It holds that the Commission
may act upon an offence at any time within
six years after the commission of the offence. In
some countries such as Zambia, there is no statute
of limitations in case of a criminal offence but on
civil offences it may for a maximum period of 6
years. The the United Republic of Tanzania competition
law does not have criminal sanctions in
its competition law. All the countries in the region
have criminal sanctions on hardcore cartel.
In terms of mergers, the Commission has a limit of
3 years to deal with a merger after its implementa-
Thus, a compliance order against a merger cannot
be effected after three years 75 . This robs the
Commission of the opportunity to deal with mergers
that produce undesirable industrial structures
and potential harmful effects on competition and
consumers. Other than monitoring such a merged
entity’s market behaviour, the Commission would
also be understood to be precluded from entering
into any compliance agreement.
It would be assumed that except for mergers,
other offences may be a subject of a compliance
order up to a maximum of 6 years after the commission
of the offence.
While compliance orders, except for merger cases,
may be issued up to a maximum period of 6 years,
compensatory orders can only be issued within
three years after a person “suffered loss or damage”
or after “knowledge” of the offence by the applicant.
Section 59(2) of the Act is clear that an application
for a compensatory order “may be made at any time
within three years after the loss or damage was suffered
or the applicant became aware of the offence,
whichever is the later”. It is reasonable to assume
that for a compensatory order, the offence may have
been committed way beyond the three years and it
is possible that the order by the Commission may be
made way beyond the three year grace period.
It is not clear why the Commission was omitted
from proactively seeking compensation on behalf
of injured parties, especially consumers. Again,
there seems to be no legislative rationale for the
difference in dealing with compliance and compensatory
orders under the Act.
2.7 Enforcement record
Considering the plethora of functions for the FCC
under Section 65, and the extensive provisions
dealing with consumer protection, the FCC does
not appear to have a lot of cases for its technical
staff. For instance, during the 2008/2009 period
(which is the best so far in terms of case load), the
one (1) anticompetitive case; approved 7 mergers;
and 26 cases of counterfeit goods impounded/destroyed
76 . A comparative analysis of the case load
is as follows: