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TANZANIA While it is recognized that the MMR has a regulation on frivolous complaints, it is again a self-defeating process as the whole MMA is based on “reasonable suspicion”. Regulation 23 may still be a deterrent for frivolous complaints aimed at frustrating competition. The Regulation states that, “Where it is deemed by the Chief Inspector that an application made under Regulation 12 has been made frivolously or with an improper motive, the Chief Inspector may order the applicant to pay the owner or consignee or consignor of the goods appropriate compensation for any harm or loss occasioned through the wrongful detention of the goods.” Under Regulation 12, a person who suspects the importation or exportation of counterfeits marks or pirated copies in violation of his intellectual property rights or any offending goods may make an application in writing to the Chief Inspector and scribed form. However, from the wording under regulation 4, the Chief Inspector may investigate a suspected case at his own initiative. To control frivolity, regulation 13 provides a discretionary power to the Chief Inspector to require the person who submits an application under regulation 12 to provide adequate security or to subscribe to an undertaking or bond to cover any costs or liability arising from claims in the event the goods are found not to be offending goods or where proceedings initiated under the MMR are discontinued or where there is an abuse of the process by the applicant. Under subregulation thousand shillings, imprisonment for a term of two years or to both for a person who misleads or gives false information (this includes the owner of the IPR and the witnesses). This is a clear safeguard against unreasonable complaints against competitors. The process does not however, provide for a reasonable chance for foreign based exporter to the United Republic of Tanzania to defend themselves against a local competitor – and thus the full effects are felt by the importer. From the requirements under regulation 12, it appears that the Chief Inspector may not act on anonymous complaints, as these may be sources impossible for the FCC to identify the complainant after the fact. Regulation 35 suggests that there is a fee charged for making a submission to the 65 Chief Inspector, which submission may be made by a principal or an agent. Anonymous complaints have been sparingly received by the FCC and not acted upon as the FCC requires, by law, full details of the owner of the IPRs before they can invoke their powers. The IPR owner or their agent must pay a security with the FCC before the FCC processes their claim. 3.2 Counterfeits and Consumers It is important for consumers to be protected from harmful counterfeit products. Considering the level of development of the United Republic of Tanzania, and the fact that counterfeit products provide cheaper sources to enjoy certain products, such as feelings amongst consumers. While there is general agreement that those that have an adverse effect on health, such as foodstuffs and electrical products, should be controlled, the case is not so found in the market. Consumers are aware of a “certain Government department” that destroys pirated foodstuffs. A Commission for this role as it goes to the core of the large informal and trading SME sector that the United Republic of Tanzania is renowned for. Based on the wording of regulation 12 cited above, consumers cannot submit an application to the Chief Inspector as they are not owners of intellectual property rights (IPRs). This is a clear anomaly and the law should have provided for consumer complaints where there is reasonable suspicion of harmful counterfeit or offending products, e.g. infant powdered milk. It is not legally clear whether consumer organizations or National Consumer Advisory Council (NCAC) could equally raise a complaint without being made to follow the process of depositing a security fee with the FCC as stipulated under regulation 12 of the MMR. 3.3 Other Pertinent Issues on Counterfeits It is pertinent to note that the United Republic of stretch the functions and duties of its competition TANZANIA
66 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE authority. Other competition authorities in both developed and developing countries have had to deal with laws that are not part of contemporary competition law. In Australia for example, the Australian Competition and Consumer Commission (ACCC) was tasked with dealing with the Price Surveillance Act, the Goods and Services Tax and other technical regulatory responsibilities in the electricity sector. The competition authority in Zimbabwe, aptly known as “Competition and Tariff Commission” deals with the Tariff Act as well. Clearly, the United gion where a competition authority deals with matters as prescribed under the MMA and the MMR. Considering the enormity of the task under MMA, it is a task that requires a separate department/ inspectorate wing headed by a Director reporting to the Director-General (who is the “Chief Inspector”). The Government’s position of appointing the FCC to perform counterfeit functions is justi- terfeits and consumer protection functions already being performed by the FCC. Therefore it is likely that attempts to remove these functions from the FCC would be rejected. This is also coupled with the fact that the Government would not agree to create a separate statutory body to deal with the MMA due to cost implications. In these circumstances, the FCC appears to be a more suitable “Chief Inspector” and may perform this role for an unforeseeable future. Enforcement of the MMA appears hinges on reports being submitted to the Chief Inspector by largely the IPR owner and there may be need to review these means by other parties that may be affected by counterfeits e.g. the traders who may suspect their supplier to be engaged in the scourge. This is in addition to consumers and consumer organizations mentioned above. 3.4 Organization and Responsiveness In so far as consumers and consumer organizations are not able to report matters to the Commission, the effectiveness of combating the vice shall be affected. According to the Tanzanian Consumer Advocacy Society (TCAS), there are severe consumer’s rights violation and unfair business conduct in the Tanzanian market that are not dealt with, as shown in the table below: (a) Mwananchi, 23 April 2007, Swahili newspaper had a title; Fake malaria drugs kill many Tanzanians. (b) Sunday Citizen 10 December 2006 had an article with the title; Many Tanzanians not fully aware of their rights. (c) The Guardian dated 11 July 2007, for example, reported that banned HIV/AIDS life prolonging drug –EMTRI Social Welfare, was still circulating in Kisarawe district, Coast region despite an outcry by anti-AIDS activists (d) The Citizen of 28 July 2007, had a title; “In for an injection, out with a limp” some people come out of the injection room with an abscess only shows up several weeks later; others come out with disabilities for life. (e) The Guardian of 19 August 2007 had the title “Fake goods impede producers – Producers are deeply to thrive”. (f) The Guardian of 12 September 2007 reported that; Bulk of Kariakoo imported goods fake – about 50 per cent of all imported goods from China and sold in Kariakoo shops in Dar es Salaam are counterfeit. (g) The Guardian of 4 November 2007; Fake Medicines Pose Big Threat –Counterfeit Medicines In Tanzania; the story continued and Upjohn, was found in circulation in some pharmacies in the country. May 2000, counterfeit Ampicillin capsules (250mg) were found circulating in some retail pharmacies. roquine Injection (from an unregistered Indian company) was relabeled as Quinine Dihydrochloride Injection 600mg/2ml from a company in Cyprus.
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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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ZIMBABWE FULL REPORT ZIMBABWE
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ZIMBABWE TABLE OF CONTENTS PREFACE
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ZIMBABWE This report is part of the
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ZIMBABWE With the growing political
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ZIMBABWE of restrictive practices,
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ZIMBABWE competition authorities do
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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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