We had the privilege of welcoming esteemed speakers from competition authorities in COMESA, Kenya, South Africa and Tanzania as well as economic, legal and business experts with experience across the continent to our 13th annual Africa Competition Law Conference, which was held in Johannesburg on 21 February 2025.
The theme of the conference was ‘The evolving milieu of competition regulation in Africa and its implications for business’. A summary of the discussions follows.
Welcome remarks by Derek Lötter, Partner, Co-Head of Competition, Bowmans
Derek Lötter opened the 13th Annual Competition Law Conference by announcing that the firm’s Africa Competition Law Guide (available here), a valuable resource for businesses operating and transacting in Africa, had been published. He provided highlights from the report, outlining recent developments in African competition law on a continental, regional and national level.
Keynote Address by Mondo Mazwai, Chairperson, Competition Tribunal of South Africa
Mondo Mazwai’s opening statements reflected on the responsibility we all have to create a positive impact for future generations. She noted that climate change and the economic challenges in Africa, inequality, unemployment and poverty, required all of us to think of future generations when seeking solutions. She highlighted the role of competition law in addressing these challenges and promoting socio-economic transformation through public interest considerations.
She discussed the development of competition institutions across Africa, including the African Competition Forum and the African Continental Free Trade Area (AfCFTA), which aims to unify, centralise and streamline competition regulation on the continent, among other objectives.
The Chair stressed the importance of patience, hard work and collaboration in achieving long-term goals and concluded with a hopeful message for Africa’s future. She quoted Abena P. A. Busia, who wrote that ‘Africa is not a country, yet she must learn to dream as one’.
Panel Discussion 1 – The Trump Administration: understanding the possible impacts of the changes in US politics on markets and M&A activity in Africa
Moderator HB Senekal, Partner, Bowmans, indicated that the panel would discuss Trump’s political and economic philosophy with a focus on the effects of deregulation, tax cuts and the prioritisation of US business interests.
Professor Raymond Parsons, NWU School of Business & Governance and Special Policy Advisor to Business Unity South Africa, discussed the tremendous uncertainty associated with Trump’s policies and the current geopolitical environment. He emphasised the importance of scenario planning, mitigation strategies and due diligence for businesses, highlighting both opportunities and risks in African M&A activities and the need for international collaboration. While some investors will push the pause button, and the costs of borrowing could go up due to higher-for-longer interest rates, the global tectonic shifts also provide opportunities for investors. He noted there must be a cross-disciplinary approach to managing risks.
Jacob Muller, Principal, RBB Economics, focused on the regulatory uncertainty under Trump’s administration, particularly in antitrust and national security policies that might lead to a wait-and-see approach from investors. He predicted continued scrutiny of big tech companies. He reflected that firms may move to de-risk supply chains, noting that Africa might not see broad benefits from supply chain-driven investments. However, Africa could attract strategic investments in critical mineral supply chains. He also said that AfCFTA could create potential for regional economies of scale and increased incentives for regional consolidation.
Maryanne Angumuthoo, Partner, Bowmans, shared her concerns about uncertainty and the potential impact of the Trump “America First” policy on African markets, noting however that that there could still be scope for deal-making if there is value for America. She outlined Trump’s preference for bilateral agreements, which may benefit African countries, who are seen by the US to be strategic partners. However, this could also lead to a fragmentation of African interests just as AfCFTA gets underway. She noted the parallels between the economic interest that the Trump administration is seeking to promote and the public interest mandate that African authorities have implemented. At the same time there are tensions between the two, with a particular area of contention being the South African Competition Commission’s approach to the “spread of ownership” provision under the public interest considerations in the Competition Act.
Dr Willard Mwemba, CEO, Competition Commission of the Common Market for Eastern and Southern Africa, noted that bringing different competition stakeholders together was helpful in resolving some of the complex issues in competition regulation because it provided an opportunity for participants to come to a common understanding. He underscored the importance of certainty for businesses and discussed the need for Africa to diversify its international partnerships. He pointed out the challenges of navigating concentrated markets and the need for policies that are predictable, clear and independent of influence.
William Jimerson, Group CEO, Abacus Retail Financial Services and Executive Board Member, Smart Agri-Africa, talked about the populist challenges in the US and the need for strategic negotiation to navigate the new political reality. He stressed the opportunities within the chaos and that African businesses should adapt and seize these opportunities. He noted that the US negotiating strategy adopts is an offensive one. William also commented that some of Trump’s executive orders could be toned down because many are being challenged by the judiciary and many must be ratified in Congress. Most of the bigger listed companies might take a wait-and-see approach in the current volatile environment, but there are great opportunities for more nimble players in the current market if they received the right advice and could manage the risk.
In the concluding remarks it was noted that the initial shock of the Trump approach might not be as drastic on paper. The changes in the political landscape requires a clear understanding of the various factors impacting that each jurisdiction and well-formed negotiation strategies.
Panel Discussion 2 – Digital markets: what steps (changes in the law, approach to application of the law, etc) are needed or being taken to address the challenges presented when regulating conduct in this space?
Moderator Claire Reidy, Partner, Bowmans, South Africa, opened the discussion by commenting that, to fully unlock the potential of digital markets, especially in terms of promoting inclusive growth, effective regulation is essential. However, it is important to find the right balance between regulation that protects the digital ecosystem and allows the sector to innovate, thrive and grow.
Professor Liberty Mncube, Managing Director, Berkeley Research Group South Africa, highlighted the economic implications of digital markets and the need for a balanced approach to regulation that fosters innovation while managing risks. He noted that today’s digital economy is already vast, with many interrelated industries and ecosystems and that digital businesses are increasingly becoming the subject of lawsuits, government investigations and regulatory initiatives. Liberty spoke about platform economics, big data and the use of power algorithms in the digital economy and that these new business models, facilitated by global point-to-point communication systems and new technologies, indicate it might be time to adjust laws and regulations. He spoke about digital regulation and innovation, outlining permissive and regulatory approaches, and noting sound economic analysis was necessary to make the right choices.
Thomas Janssens, Partner, Freshfields, said there was a feeling that, historically, competition law in the digital markets in Europe and ex-post applications in particular, were not quick enough. He said the EU Digital Markets Act (DMA) was implemented to impose far-reaching regulatory obligations on specific core platform services that gatekeepers offer to businesses and consumers. Some of the gatekeepers have challenged their designations for a particular service, with no final decisions yet. He highlighted potential challenges and tensions between mostly US gatekeepers and the EU’s regulatory approach.
James Hodge, Chief Economist, Economic Research Bureau and Acting Deputy Commissioner of the South African Competition Commission, explained the South African Competition Commission’s focus was on protecting local consumers and businesses, and ensuring the development of local businesses. He said big tech was a big influence, but there was a lot more to the local markets. The focus of the Commission has been on online intermediation, as well as competition on app platforms and how South African businesses, including small and black-owned businesses, are treated on these platforms. He said the media inquiry was important because media was the cornerstone of the country’s democracy and had been devastated by online platforms. He highlighted the use of market inquiries to address issues in digital markets, saying they had been effective and quicker than implementing new laws. He emphasised the importance of flexibility and evidence-based approaches in regulation.
Heather Irvine, Partner, Bowmans South Africa, discussed the challenges of advising tech companies in a dynamic regulatory environment and the importance of balancing regulation with innovation. She noted that a challenge with market inquiries is that they do not apply to all players in the tech sector, which makes advising and compliance challenging. Market inquiries are also not permanent and that recommendations following the inquiries are only effective a limited time. Also, many recommendations have not been implemented because of litigation. She highlighted the need for a comprehensive approach to digital market regulation that considers the broader structural ecosystem, as there are many outside factors that weigh heavily on the performance of South African businesses.
Wang’ombe Kariuki, Senior Consultant, Bowmans, Kenya, emphasised the need for regulatory convergence in Africa, tailored to the unique challenges and opportunities in certain jurisdictions. Wang’ombe noted regulatory solutions in the global North cannot be transplanted to the global South and that there is no global navigational compass to regulation. He said that Article 11 of the Competition Policy of the ACFTA is a good provision concerning economic dependence and gatekeeping, but there were no regulations to enforce it. He further noted that Trump’s executive orders would impact Africa, referring to an example of USAID supporting convergence in digital markets in Africa, which is going to be affected. He discussed the importance of capacity building and the role of regional economic communities in fostering digital market regulation.
To end the discussion, Claire asked the panel to sum up their outlook for digital regulation across Africa.
- Wang’ombeKariuki– African competition laws should be properly utilised to regulate digital markets. A regional regulator is important, as is the need to emphasise consumer protection and dominance provisions.
- Heather Irvine – The South African Competition Tribunal’s approach to interim relief for critical infrastructure access has the potential to be an almost perpetual interim order, which has bigger risks than interventions through market inquiries or DMA-style regulation. These challenges could be replicated in other African jurisdictions.
- Thomas Janssens – There are three categories of challenges relating to interplay: between various regulations and competition law; between different digital regulations; and between regulations in different jurisdictions. Intervention in each jurisdiction could lead potentially lead to the highest common denominator in terms of regulation combined with the lowest common denominator in innovation.
- Liberty Mncube – Market inquiries and interventions can be useful to assess market failures, but it is essential to conduct cost-benefit analyses to ensure the effectiveness of interventions and to be cautious of potential risks and unintended consequences.
- James Hodge – Digital markets are complex and evolving quickly, and market inquiries are important sources of information. Future areas of focus for growth in South Africa include AI, data centres and cloud computing.
Fireside Chat with David Kibet Kemei, Director General, Competition Authority of Kenya
The Director General started his address by commending Bowmans for bringing together regulators, lawyers, economists and businesspeople to consider competition regulation in Africa. He talked about how increasing regulatory certainty for stakeholders is not only about creating a predictable environment, but also about empowering businesses to grow, innovate and contribute to the economy and to consumer welfare.
He outlined initiatives introduced by the Competition Authority of Kenya to enhance clear and comprehensive guidelines for competition law and improve enforcement. He discussed a plan to facilitate regular collaboration and consultation with stakeholders to understand and identify challenges and solutions that promote a competitive environment and proactively engage on regulatory changes. He said regular impact assessments of the Authority’s decisions will be conducted to assess the effects of the interventions.
Mr Kemei noted the vision of the authority was to sustain its reputation as an institution of excellence in competition and consumer protection. He said that the authority is benchmarking its policies, procedures and frameworks against successful global regulatory frameworks, and is engaging with other agencies and forums.
Panel Discussion 3 – Regulatory unpredictability and challenges for clients
Moderator Joyce Karanja, Head of Competition, Bowmans, Kenya, introduced the discussion by noting the need for clear and consistent policies for businesses in an unpredictable global environment. She said that the differences between national, regional, and continental regulations creates scope for uncertainty. She highlighted that the process of developing laws and guidelines needs to be participatory and consultative involving all the relevant stakeholders, and that regulatory agencies should do their best to manifest a ‘one agency’ position. She said that macroeconomic pressures experienced by individual countries can sometimes lead to budgetary constraints for the various regulators, and these pressures, coupled with capacity gaps, exacerbate the unpredictability of enforcement, resulting in either rushed or fragmented decisions. Further, political transitions or new administrations could reprioritise competition enforcement or shift focus to other policy goals further complicating the regulatory environment.
Juan Rodriguez, Partner, Sullivan & Cromwell, emphasised the importance of predictability for effective competition law enforcement. He noted that, while participants may not understand the rules or like how they are enforced, if they can predict the outcomes with a modicum of accuracy, they can make appropriate decisions. He said predictability is the single biggest metric for credibility. Businesses need predictability as laws proliferate and as they become more complicated.
David Kibet Kemei, Director General, Competition Authority of Kenya, highlighted measures taken by the Competition Authority of Kenya to ensure certainty, consistency and predictability in enforcement, such as strengthening internal processes and systems and capacity building. He noted the CAK had also enhanced public awareness programmes and education to ensure businesses and consumers know their responsibilities and rights.
Emmanuel S Nyanza, Assistant Secretary to the Commission, Fair Competition Commission, Tanzania, spoke about recent amendments to Tanzania’s competition law, via the Fair Competition Amendment Act and the importance of clear guidelines and timelines for enforcement. He noted that the Fair Competition Act is a two-in-one law, covering competition and consumer protection and outlined how the Fair Competition Commission will focus on awareness initiatives before enforcement. The Act introduces changes expanding the Commission’s mandate on consumer protection issues and enforcement of previously exempt sections. The abuse of dominance threshold was increased from 35% to 40% of market share and provisions were expanded to focus on exploitative conduct, prohibited vertical agreements and the introduction of a leniency programme to detect and dismantle cartels. Public interest considerations were introduced with numerous criteria, including employment, export considerations and SMEs.
Boniface Makongo, Director, Competition, Competition Commission of the Common Market for Eastern and Southern Africa, noted that for a competition agency to succeed, it is crucial to embrace lawyers as key stakeholders to ensure mandates are known and enforced. Lawyers play a vital role in compliance, approaching agencies for guidance, and navigating regional and national regulations. However, challenges such as forum shopping, differences in interpretation among regions, and self-serving interests can create uncertainties. He noted that there are often submissions or litigation resulting from lawyers interpreting a matter from the view of their own jurisdictions’ competition regulation, without considering how the law might have been customised for regional context. He added that agencies are amenable, with both contentious and non-contentious mechanisms to address competition concerns, and advised that lawyers should be more amenable.
Bertha Mwarija, Senior Associate, Bowmans, Tanzania, noted that in the recent past, it was challenging to predict the Fair Competition Commission of Tanzania’s direction on change of control issues, as it was previously undefined in the law and assessed using the change of hands, with the significant change being that now, the FCC focuses more on material influence. Further, penalties for non-notification or contravention of the Fair Competition Act have changed from global turnover to Tanzanian-derived sources. Amendments to the Act now allow appeals to the Court of Appeal instead of ending at the Fair Competition Tribunal. Overall, it was noted that predictability has improved significantly since the introduction of the amendments.
Summing up how predictability and certainty can be increased, the panel said the following:
- Boniface Makongo – COMESA comprises 21 member states with a population of about 65 million and a healthy GDP. The regional competition agency aims to ensure there are functional and law-enforcing competition agencies in all its member states via capacity building, assisting to set up new agencies, and aligning enforcement procedures. He noted that a one-stop-shop approach is promoted to streamline notifications and attract investment, but that challenges include varied enforcement levels, language barriers, and different priorities. He added that COMESA also shares merger filing fees to support national agencies.
- David Kibet Kemei – To ensure predictability, the CAK is strengthening internal coordination and communication. The CAK has also enhanced capacity building, especially in policy and legal aspects of competition law, so that the CAK is reading from the same script. The aim is to implement a standardised decision-making framework, including engaging and re-engaging with stakeholders should decisions change.
- Emmaneul S Nyanza – The Tanzania Fair Competition Commission is taking steps to ensure investors are provided with predictability, including developing and reviewing rules on its leniency programme, and abuse of dominance and procedure rules. It is hoped that the rules and guidelines will be published in the next few months. The FCC is also conducting research to benchmark best practices. What businesses most want is certainty.
- Bertha Mwarija – Continued collaboration between lawyers and regulators is important. There are certain areas where lawyers do not have sufficient knowledge. Gaps in the law can be resolved with the regulators. Litigation is another way to resolve uncertainty. A recent cement case went to litigation and led to the Commission revising its decision. Last year, there were about 13 appeals, and in 2025, there are already five pending appeals in the Tribunal.
- Juan Rodriguez – Capacity constraints mean that it is important to use resources in the most targeted, efficient way. In Europe, the process benefits hugely from the relationship between the European Commission and the member states. In merger control, there is a one-stop-shop, with a few exceptions. In behavioural cases, it is less rigid, and there is a dialogue. The courts do play a role – there is a preliminary ruling concept under the EU treaties, where the EU court gives definitive and authoritative interpretative guidance on provisions of EU law to member state courts, which is helpful to ensure consistency. Both COMESA and the European Commission will soon publish guidelines to assist with certainty, but they must be kept updated to have value.
Conclusion
The event was concluded by Master of Ceremonies Tshidi Vilakazi, a senior associate at Bowmans, who acknowledged the contributions of all the speakers and attendees. The Bowmans African Competition Law Conference provided an important platform for examining the evolving landscape of competition law in Africa. The different perspectives and in-depth discussions over the course of the day made it clear that it is through collaboration that opportunities for growth can be identified, and the best solutions found to address Africa’s challenges. As Mondo Mazwai noted when she quoted poet Abena P. A. Busia at the beginning of the conference – Africa must dream as one.
