Competition law regimes are evolving across Africa and while there is some way to go before a continental competition regulator is realised, there has been significant movement in terms of competition regimes being implemented and updated at national and regional levels, creating layers of competition regulation and law that businesses transacting across borders must navigate.
Continent-wide competition law
The African Continental Free Trade Area (AfCFTA) aims to promote economic development through trade liberalisation, facilitating regional integration and enhancing cooperation among member states. There are several pieces of enabling legislation (protocols) that are intended to give life to the endeavours of AfCFTA, one of which is the AfCFTA Protocol on Competition Policy, 2023 (AfCFTA Competition Protocol).
A continental competition authority is envisioned as part of this protocol, with competencies including considering mergers that have an effect at a continental level, where they meet certain financial thresholds. The exact scope and financial thresholds for the merger control regime are not finalised, although there was some movement when draft AfCFTA Regulations on Competition Policy (draft AfCFTA Competition Regulations) were published for comment in 2024.
From a merger control perspective, it appears that an intention of the AfCFTA Competition Protocol is to avoid situations involving dual or even multiple notifications. Ideally, where a transaction is continental in dimension and meets the relevant financial thresholds, it should be presented to the yet-to-be-established AfCFTA Competition Authority.
However, the draft AfCFTA Competition Regulations also appear to make provision for a referral mechanism, whereby, for example, a national competition authority may request that the AfCFTA Competition Authority refer a transaction notified to it to the national competition authority, either in whole or in part. There is thus scope for national competition authorities to take jurisdiction in transactions notified to the AfCFTA Competition Authority.
Regional developments
The Common Market for Eastern and Southern Africa (COMESA)
The COMESA Competition Commission’s (CCC) revised regulations are intended to come into effect in late 2025 and will impact the current merger control regime in several ways. For example, currently the regime is non-suspensory, but parties are required to notify within 30 days of the “parties’ decision to merge”. One of the significant changes brought about by the revised regulations is to do away with the 30-day rule and to change the regime from being a non-suspensory regime to a suspensory regime.
The revised regulations also propose introducing a fast-track process for merger assessment, particularly for those mergers that do not raise significant competition or public interest concerns.
There has also been debate about the CCC’s position as a one-stop shop. The revised regulations are expected to reaffirm the CCC’s exclusive jurisdiction over mergers that have a regional dimension within the COMESA Common Market.
East African Community (EAC)
While the East African Community Competition Authority (EACCA) is not a new regulator, the idea is that it too will function as a one-stop shop for its relevant member states, including Burundi, the DRC, Kenya, Rwanda, Somalia, South Sudan, Uganda and Tanzania.
The EAC Competition Act has been revised, and supporting regulations prepared. Only one member state has yet to ratify the amendments before they are brought into effect.
The way the current legislation is phrased, for a transaction to be notifiable, it will need to meet a regional dimension test, with either the acquiring firm or the target firm needing to operate in two or more member states. This means transacting parties could potentially have a filing obligation where the target does not operate in a member state, but the acquiring firm operates in two member states, with uncertainty as to how new legislation and regulations will clarify this.
Further, unlike other jurisdictions where there is a joint obligation for the parties to seek clearance, the obligation is currently only on the acquiring firm. These could change once the final legislation is published.
Economic Community of West African States (ECOWAS)
ECOWAS is a regional economic bloc, currently comprising 12 member states, namely Benin, Cabo Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Nigeria, Senegal, Sierra Leone and Togo. Burkina Faso, Mali, and Niger withdrew their memberships from the economic bloc with effect from 29 January 2025.
The ECOWAS Competition Regulatory Authority (ERCA) published further legal instruments relating to competition law enforcement during 2024, including in relation to merger control (ECOWAS Community Competition Rules). The ECOWAS merger control regime is mandatory, requiring parties to notify the ERCA of merger transactions where the parties operate in at least two ECOWAS member states and meet specific financial thresholds. The merger regime is also suspensory.
Several ECOWAS member states, including Nigeria, have operative national competition authorities and their own merger control regimes. Some ECOWAS members are also members of the West African Economic and Monetary Union (WAEMU), where competition law is regulated by a different regional regulator, the WAEMU Commission, whose merger control regime is voluntary and non-suspensory.
The EECOWAS Community Competition Rules and supporting instruments confirm the primacy of the ERCA’s jurisdiction over conduct ‘likely to have an effect on trade within ECOWAS’ and ‘acts, which directly affect regional trade and investment flows and/or conduct that may not be eliminated other than within the framework of regional cooperation’.
The ECOWAS Community Competition Rules also require the ERCA to ‘cooperate with national and regional competition agencies in taking measures necessary to ensure implementation of the obligations arising from the ECOWAS Community Rules.
The ERCA also aims to operate as a ‘one-stop shop’ for cross-border transactions meeting the ECOWAS financial thresholds for merger notification. Where a merger is notified to the ERCA, the clear intention is that separate notifications to national authorities will not be required.
ERCA also intends to issue merger guidelines to clarify its approach and practice.
Developments at national level and concurrency of jurisdiction
The presence of multiple regional competition regulators and an envisaged continental competition regulator raises questions around concurrency of jurisdiction, especially given that some countries have dual membership in certain regional blocs. Another issue to contend with is that certain countries have very active sector-specific regulators who enforce regulations that also include competition law principles.
In Nigeria, the Federal Competition and Consumer Protection Commission (FCCPC) is a young regulator but is already punching above its weight. Nigeria’s merger review period is limited to 120 business days, slightly shorter than the ECOWAS review period, but in practice, many transactions are being reviewed in a much shorter timeframe. The merger control regime also caters for an expedited review. Currently, there is no expedited review in
ECOWAS
When the competition law regime was established in Nigeria, the FCCPC collaborated extensively with regulators across the continent, as such, further collaboration with a regional, and even a continental regulator, should not be problematic for the FCCPC.
Kenya is a member of the EAC and COMESA and has a strong national regulator, as well as various sector-specific regulators. It will be interesting to see how these layers of competition regulation are considered and if multiple filings can be avoided.
Uganda recently enacted the Competition Act of 2024, although implementing regulations have not yet been published. A ‘Technical Committee’ (Committee) within the Ministry of Trade is intended as the primary regulator of competition law matters, but the country also has a number of sector-specific regulators who regulate competition issues within a sector. It is not yet clear what the workaround may be in relation to issues falling under common jurisdiction.
Conclusion
As competition regulation across Africa continues to evolve, clarity will be required regarding competition law concurrency of jurisdiction. However, competition authorities on the continent have been collaborating for some time, and it is anticipated that the layers of continental, regional and national competition law will fit together in a way that streamlines the merger notification process. It will be essential to establish clear guidelines and cooperative mechanisms to manage this effectively.
Businesses can mitigate the challenges presented by multiple competition law regulators by assessing merger control obligations as early as possible in the deal process – paying particular attention to review timetables and the possibility of not only competition-related commitments but also public interest-related commitments.
