Regulation as a Barrier to Entry: The Competition Commission’s Review of Regulatory Impediments to Competition and SME Participation

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By Jannes van der Merwe and Astra Christodoulou

On 22 April 2026, the South African Competition Commission (“the Commission”) launched a review of regulations that may act as barriers to competition and the entry and expansion of firms with particular focus on small and medium enterprises (“SMEs”) across all Markets in South Africa (the “Review”). The Review forms part of a broader national policy effort to support inclusive economic growth, reduce compliance burdens and modernise the regulatory environment in a manner that promotes competitiveness at all levels in the market. The Review was initiated against the backdrop of President Cyril Ramaphosa’s 2026 State of the Nation Address (“SONA”), in which one of the topics addressed was the need to reduce red tape and improve the ease of doing business.

This announcement follows several prior market inquiries by the Commission, including those in the grocery retail, data services and healthcare sectors, in which the Commission found that regulatory design to be a recurring impediment to competitive market outcomes.  The Review, therefore, demonstrates a meaningful evolution in the Commission’s approach, moving from a reactive, conduct-based enforcement toward a more structural and upstream engagement with the rules that govern market participation.

Legal and Policy Framework

The Commission’s mandate to engage with legislation and public regulations is well established under the Competition Act 89 of 1998 (the “Act”). Section 21(1)(k) of the Act empowers the Commission to “review legislation and public regulations, and report to the Minister concerning any provision that permits uncompetitive behaviour.”This regulatory review function is distinct from, and complementary to, the Commission’s market inquiry powers under Chapter 4A of the Act.

The Competition Amendment Act 18 of 2018 (the “Amendment Act”), which introduced significant reforms to the Act with effect from 12 July 2019, reinforced the Commission’s structural mandate by addressing two persistent constraints on the South African economy: elevated levels of economic concentration and the skewed ownership profile of the economy. The Amendment Act strengthened provisions relating to abuse of dominance, price discrimination, and public interest considerations in mergers, while also enhancing the market inquiry framework to ensure that outcomes result in enforceable action.

The Commission has actively pursued change and reform in favour of SME’s following the Amendment Act. The Commission issued Regulations on Buyer Power on 13 February 2020, which included factors and considerations to combat unfair practices by dominant firms that will impede effective participation by SMEs. The Commission further issued the Block Exemption Regulations for Small, Micro and Medium-Sized Businesses on 23 May 2024, with the purpose of stimulating the growth and participation of SMEs in the economy.

Further, the Commission issued a Guide for SMEs in September 2022 with the aim of assisting and informing SMEs about their rights and the Commission’s functions and processes in protecting and promoting SMEs in the broader South African market.

This Review takes the next logical step by addressing regulatory structures early, before market distortions become entrenched competitive problems. Section 2 of the Act articulates the purposes of competition policy in South Africa, which include ensuring that SMEs have an equitable opportunity to participate in the economy and promoting a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons (“HDPs”)

Categories of Regulatory Barriers Under Review

The Commission has identified six broad categories of regulatory barriers that fall within the scope of the Review.

Administrative Barriers

Complex, lengthy or uncoordinated authorisation and licensing processes that delay market entry or expansion are identified as a primary category of concern. These barriers weigh most heavily on SMEs, which generally lack the organisational capacity and financial resilience to withstand the prolonged regulatory delays that larger, established operators can absorb with relative ease. Earlier Commission market inquiries, particularly those examining the healthcare and grocery retail sectors, found that licensing and authorisation delays had a measurable constraining effect on competitive entry.

Rules Entrenching Monopoly Supply or Artificial Scarcity

Regulations that create or entrench monopoly supply or an artificially limited number of suppliers, through exclusive rights, long-term contracts or restrictive licensing, are a second category. These mechanisms often reflect the legacy of the pre-democratic regulatory order and persist across sectors ranging from electricity generation to port logistics. Where such frameworks are not the product of a deliberate and demonstrably justified policy choice, they function as state-conferred barriers to competitive entry.

Onerous Licence and Permit Conditions

Licence and permit conditions that unduly limit who may operate in a market, including conditions that are disproportionately costly or time-consuming, or that impose unnecessary caps on licence holders, are the third category that will be considered in the Commission’s Review. This includes regulatory frameworks in sectors such as liquor retail, transportation and financial services, where licensing regimes have historically served to consolidate market access among established players.

Unreasonable Standards and Compliance Requirements

The Commission also identifies unreasonable or unnecessary standards and licensing requirements for operating, registering, constructing or meeting compliance obligations as a source of competitive harm. While minimum standards serve a legitimate function in protecting consumers and ensuring safety, the design and implementation of such standards can effectively foreclose entry where requirements are disproportionate to the relevant risk or are not calibrated to accommodate smaller-scale operators.

Restrictions on Price and Non-Price Competition

Restrictions that limit competition on price or non-price factors, including constraints on pricing, location, quality or marketing, constitute the fifth identified category. Such restrictions, whether explicit or the incidental product of regulatory design, diminish the incentive and ability of market participants to compete on the merits. The Commission also flags requirements that are reasonable in principle but are poorly implemented, resulting in administrative backlogs, inconsistent interpretation and unpredictable outcomes. This final category acknowledges that competitive harm may arise not only from the content of a regulatory rule but from the manner of its administration.

Poorly Implemented but Facially Reasonable Requirements

The sixth category is notable in that it acknowledges a source of competitive harm that is distinct from substantive regulatory design: requirements that are reasonable in principle but poorly implemented, leading to extensive delays, inconsistent interpretation, administrative backlogs or unpredictable outcomes. This category reflects an important analytical refinement. Competitive harm may arise not only from the content of a rule but from the dysfunction of the administrative machinery through which it is applied. For SMEs with limited resources to sustain protracted regulatory engagement, unpredictability and delay in implementation can be as effective a barrier to entry as an explicitly restrictive provision. This category also opens the door for the Commission to recommend administrative and institutional reforms, not merely amendments to the text of regulations, as a remedy.

B-BBEE, Transformation and Competition Policy: An Intersecting Mandate

The Review’s express attention to whether current regulatory frameworks adequately enable meaningful participation by historically disadvantaged persons (“HDPs”) raises a significant question regarding the relationship between B-BBEE regulatory requirements and competition policy. The Amendment Act reinforced the Commission’s obligation to consider the adverse effects of market structures and conduct on firms owned or controlled by HDPs. This represents an area where competition policy and transformation objectives must be carefully reconciled.

Regulatory frameworks that ostensibly promote transformation, through preferential procurement requirements, equity thresholds or ownership conditions, may in some instances operate to elevate compliance costs for new entrant firms to a degree that forecloses rather than facilitates participation. The Review presents an important opportunity to examine whether the architecture of transformation-focused regulation is designed in a manner that advances both its stated equity objectives and the competitive functioning of markets, or whether refinements to its implementation are warranted.

Practical Implications for Legal Practitioners and Businesses

The Commission has invited businesses and other stakeholders to make written submissions by close of business on 5 June 2026, to be directed to regulation@compcom.co.za. Submissions should identify the relevant regulation and specific provision, describe the manner in which it restricts competition or participation (including practical compliance experience), and propose reforms to remove or modify the barrier while maintaining the regulation’s underlying purpose.

For legal practitioners advising clients in regulated sectors, the Review represents a significant and time-sensitive engagement opportunity. A well-constructed submission should situate the identified barrier within the statutory framework of the Act, particularly the section 2 purposes relating to SME participation and HDP ownership and should be grounded in demonstrable commercial experience of the regulatory impediment in question. Submissions that propose targeted, evidence-based reforms, rather than wholesale deregulation, are likely to carry greater persuasive weight with the Commission.

Sectors in which practitioners may wish to consider engagement include, without limitation:

  • construction and property development (certificate of need and development authorisation processes);
  • healthcare (facility licensing and certificate of need requirements);
  • logistics and freight (port access and operator licensing);
  • retail liquor (licence conditions and geographic restrictions); and
  • financial services (entry-level licensing thresholds and FAIS compliance burdens on smaller advisory firms).

Conclusion

The Review represents a significant exercise of the Commission’s regulatory advocacy function and marks a notable shift in the focus of competition policy intervention. By turning its analytical lens toward the rules and regulations in the market rather than exclusively toward the conduct of market participants, the Commission is engaging with the structural determinants of market concentration and exclusion at their source.

The effectiveness of this initiative will, however, depend substantially on two variables:

  1. the quality and breadth of submissions received from market participants with direct experience of the identified barriers and;
  2. the political will within the relevant line departments and regulatory bodies to implement the Commission’s eventual reform recommendations.

The Commission’s regulatory review function under section 21(1)(k) is advisory in nature; its recommendations do not bind regulators or the legislature. The Review’s long-term significance will therefore be measured not only by the rigour of its analysis but by the extent to which its findings translate into durable regulatory reform. The recommendations proffered by the Commission will have to be well structured and presented, to ensure that those who can impose regulatory reform, such as the Minister of Trade, Industry and Competition and other ministers engaged through the review process, are encouraged to impose the required reform.

Stakeholders operating in regulated markets are strongly encouraged to engage with this process. The submission deadline of 5 June 2026 affords sufficient time to prepare substantive, sector-specific contributions that could meaningfully shape the Commission’s findings and, ultimately, the regulatory landscape within which South African businesses operate.

Merger Control at a Cost: Understanding the CCCC’s Fee Schedule

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By Kelly Baker

The COMESA Competition and Consumer Commission (the “CCCC”) published its Schedule of Fees (the“Schedule”) and detailed procedures under the 2025 COMESA Competition and Consumer Protection Regulations (the “Regulations”). The publication marks a significant step in strengthening and clarifying the COMESA merger control regime. The Schedule issued pursuant to Regulation 10(1)(d) read together with Regulation 17(2) of the Regulations, sets out the fees payable for four categories of services: (i) expedited merger review, (ii) comfort letter requests, (iii) advisory opinions, and (iv) other services.  

The Schedule arrives on the heels of the landmark 2025 Regulations, which were adopted by the COMESA Council of Ministers on 4 December 2025 and which, among other things, introduced a suspensory merger control regime. Against that backdrop, the newly formalised fee structure provides important practical guidance for businesses and their advisors navigating the CCCC’s processes.

What Does It Cost?

The CCCC’s fee for an Expedited Merger Review is set at USD 120,000. Under the standard merger review timeline, the CCCC has 120 days from receipt of a complete notification to issue its decision. The expedited process, by contrast, is designed to deliver a decision within 45 days of notification, a significant acceleration for parties with time-sensitive transactions. Notably, the CCCC retains sole discretion to determine eligibility for expedition, and mergers that may raise any prospect of competition concerns are excluded from the process. Parties must request for an expedited merger review in their cover letter accompanying the merger notification form. For completeness, the request for an expedited merger review is only considered complete once payment of the fee is made in full.

Comfort letter requests and advisory opinions are subject to a fee of USD 10,000 each. A Comfort Letter is a mechanism by which an acquiring party may seek confirmation that a transaction does not meet the CCCC’s notification thresholds and is a particularly useful tool for parties uncertain about whether their deal triggers the COMESA filing requirements. Advisory Opinions, which are expressly non-binding under the 2025 Regulations, provide a further avenue for businesses to seek informal guidance on competition-related matters. Further, the catch-all “other services” category is priced at USD 5,000.

For both comfort letters and advisory opinions, the CCCC has a 45-day turnaround from receipt of a complete application, with the possibility of a 30-day extension in respect of Advisory Opinions where circumstances require.

Practical Implications

Michael-James Currie, a partner from Primerio notes: “The formalisation of a fee schedule, particularly the introduction of a priced expedited review mechanism, signals the CCCC’s intent to operate with greater institutional discipline and commercial awareness, and businesses engaging in cross-border M&A activity across the COMESA region should factor both the timelines and the associated costs into their deal planning from the outset. The introduction is of particular importance for merger parties given the new suspensory regime having come into effect.”

The Schedule is notably detailed in its procedural guidance. On the expedited merger review, the CCCC has made clear that fees are refundable only in limited circumstances – specifically, where the CCCC revokes a merger’s eligibility for the expedited process due to (i) parties’ non-responsiveness to additional information requests from the CCCC, (ii) new information coming to light subsequent to the CCCC’s approval for the expedited service; or (iii) unforeseen circumstances on the CCCC’s side hinder the CCCC from rendering the expedited service. Fees are not refundable for any other reason, placing the risk squarely on the notifying parties.

If the CCCC receives a request for a comfort letter that contains any material misstatement or omission of information or documentation, and subsequently issues a comfort letter on the basis of such misstatements or omissions, the CCCC reserves the right to revoke the comfort letter, and the parties may be exposed to the risk of a finding that they failed to notify a notifiable merger or are otherwise in contravention of the Regulations.

It is important to note that the above-mentioned fees are in addition to the prescribed fees in respect of merger notifications. In other words, should a notification be required and the merger parties opted for an expedite review of their transaction, the notification will cost the merger parties 0.1% of the combined turnover, or a cap of USD 300,000 plus the expedited fee of USD 120,000.

Looking Ahead

The release of the Schedule marks another step in the CCCC’s ongoing effort in developing its suspensory merger control regime. For practitioners and businesses operating in Eastern and Southern Africa, staying abreast of these developments is becoming increasingly important.

To access the schedule, see here Fee Schedule

Empowering Competition: The Launch of Market Inquiry Guidelines and the New Era for Mauritian Markets

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By Megan Armstrong

On 31 March 2026, the Competition Commission of Mauritius reached a significant regulatory milestone with the publication of its Guidelines on Market Inquiries (CC 8 Guidelines). These Guidelines have been published following recent amendments to the Mauritius Competition Act of 2007, and provide a formal roadmap for the Commission to examine entire sectors of the Mauritian economy, rather than focusing solely on individual firm misconduct.

Why these Guidelines are Important

The introduction of these Guidelines mark a shift from reactive to proactive enforcement. Historically the Competition Commission of Mauritius has focused on investigating specific restrictive practices, such as cartels or abuse of monopoly power. However, many markets fail to deliver competitive outcomes due to structural issues, regulatory barriers or complex consumer behaviour, even in the absence of a specific law-breaking act.

Alignment with Recent Developments

The publication of these Guidelines is not an isolated event, but a strategic move. Over the past few months the Competition Commission of Mauritius has intensified its focus on modernising its oversight of the Mauritian economy.

The Guidelines arrive mere weeks after the Mauritian Competition Commission released its Digital Market Landscape Report, which reviewed market conditions across various digital platforms, signalling the Commission’s intent to monitor these high-growth and complex sectors.  

The Commission was officially vested with the power to conduct market inquiries following an amendment to the Competition Act in September 2025. The CC 8 Guidelines serve as an operational manual for these newly granted powers to transform the legal text into a functioning regulatory tool.

The start of 2026 has seen the Commission host the first meeting of the Tripartite Technical Committee, and the collaborative ethos of this meeting is echoed in the CC 8 Guidelines, which emphasise the importance of working with other regulators and government bodies to implement the recommendations that arise from market inquiries.

Conclusion

By formalising the market inquiry process, the Competition Commission of Mauritius is moving towards a more sophisticated and transparent model of economic regulation. As Mauritius navigates the complexities of digital transformation and global economic shifts, these guidelines provide the ‘rulebook’ necessary to ensure that markets remain open, innovative and fair to all consumers.

FUEL AT THE BOILING POINT: Competition Commission Issues Price Gouging Warning

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By Megan Armstrong and Matthew Freer

South African consumers have received warning to expect oil price hikes from 1 April 2026, at a time when households are already price-constrained and cost-conscious. Naturally, as oil prices increase, consumers can reasonably expect these hikes to be passed down through corresponding price increases on the respective goods and services. The question to business is how much of an increase is reasonably permitted within the ambit of competition law, and what should the timing of such an increase be?

The Commission’s Warning

In response to the anticipated price volatility, the Competition Commission of South Africa (the “Commission”) has issued a media statement warning of heightened risks of price gouging across several sectors. The Commission stated the following:

“The risk is prevalent for unregulated fuels such as diesel retail prices and jet fuel; oil-based products such as nitrogen-based fertilisers and plastics; fuel-intensive services such as air, land and sea transport and logistics; and all other products and services that rely on these inputs, particularly food products and delivery services.”

Additionally, the Commission set out clear rules for businesses navigating the looming price increase:

  • “Businesses may not increase prices in anticipation of future fuel cost increases; they may only increase prices once they experience actual fuel cost increases.
  • Businesses that experience fuel cost increases may only increase their prices in proportion to the actual fuel cost increases they experience.
  • In effect, these two conditions mean that product or service margins after the surge in fuel prices should be no higher than the margins prior to the fuel price increase.
  • Furthermore, once fuel costs decline, product or service prices should decline immediately.”

What is Price Gouging?

Price gouging is the act of charging customers unreasonably high prices for goods or services typically in response to a crisis, natural disaster or demand shock where consumers have few alternatives and the product is a necessity. This behaviour sits at the intersection between business ethics and consumer protection in considering exploitation of a demand spike to maximise profits.

South Africa’s legal approach to this issue does not use the term “price gouging” directly in its primary statutes, rather the framework is built upon two distinct pillars. The first pillar is found in the Competition Act 89 of 1998. Section 8(1)(a) of the Act prohibits a dominant firm from charging an “excessive price to the detriment of consumers or customers”, a definition refined by the Amendment Act of 2018 to mean “higher than a competitive price” and where such a difference is “unreasonable”, targeting firms with substantial market power which abuse their dominance. The second pillar is enshrined in the Consumer Protection Act 68 of 2008. Sections 40 and 48 of this Act prohibit suppliers from engaging in unconscionable conduct and from supplying goods or services “at a price that is unfair, unreasonable or unjust”. This provision has a broader application, as it does not require a firm to be dominant. It applies to any supplier who takes unfair advantage of a consumer.

Considering the existing legislative framework on price gouging behaviour in South Africa, price gouging is then defined as the practice of increasing prices on essential goods or services during a declared disaster or crisis to a level that:

1.         Does not correspond to increased costs of providing the good or service; or

2.         Exceeds pre-crisis profit margins without justification; and

3.         Takes unfair advantage of those consumers with limited alternatives as a result of the emergency situation.

Lessons from COVID-19

The most significant development in South Africa with regards to price gouging came in response to the COVID-19 pandemic. On 19 March 2020, the Minister of Trade and Industry, Ebrahim Patel, published the Consumer and Customer Protection and National Disaster Management Regulations and Directions (the “Regulations“). They were designed to prevent an escalation of the disaster and to protect consumers from exploitative commercial practices during this period of vulnerability.

The Regulations formalised a cost-based test for determining excessive or unfair pricing, that a material price increase of an identified good or service will be considered indicative of excessive pricing if:

  • it “does not correspond to or is not equivalent to the increase in the cost of providing that good or service“; or
  • it “increases the net margin or mark-up on that good or service above the average margin or mark-up for that good or service in the three month period prior to 1 March 2020“.

Furthermore, the Commission’s 2021 Guide for Business Compliance with Price Gouging Regulations, emphasised that during a disaster, price increases must be strictly proportionate to cost increases, and businesses must not exploit temporary demand surges to inflate profit margins.

The Commission’s willingness to act was demonstrated early in the pandemic in the Babelegi case, where a firm was found liable for excessive pricing after increasing mask prices by over 1 000% while its own supply costs remained unchanged.

In essence, South Africa’s legal framework defines price gouging not by the final price itself but by seller behaviour, where an unjustified cost increase representing abuse of a temporary situation in which consumers are a captive market and desperate for essential goods and services. A framework established during COVID-19 now guides current pricing conduct and sheds some light on how the Commission would evaluate seller behaviour in relation to demand shocks arising from emergencies, natural disasters, or market disruptions.

What Businesses Should Do

Business should be mindful of not increasing prices in anticipation of the impact of the oil price increase and engage in corresponding price increases once these price increases have a clear and quantifiable impact on internal pricing mechanisms.

The wider public does have recourse available to contact the Commission, should it appear that a business is engaging in price gouging behaviour, or has responded too erratically to the market disruptions caused by the sudden spike in the oil price. The Commission has stated the following: “Given the heightened risk of price gouging during this period of oil price volatility, the Commission calls on the public and businesses to report instances where they believe price gouging is occurring so that the Commission can investigate.”

Ultimately, the lesson from COVID-19 remains unchanged in that price increases have to be justified by evident supply cost increases and not by opportunity. As the Commission has made clear, anticipation pricing and margin expansion will not be tolerated.

‘Antitrust-Adjacent’: Kenya’s Artificial Intelligence Bill, 2026: Building a Practical and Coherent Framework for AI Regulation and Governance

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In this new series, entitled “Antitrust-Adjacent,” AAT covers relevant developments of interest & adjacent to competition-law issues. Our first installment on AI Regulation is co-authored by Kenya Primerio Partner Fidel Mwaki and Alfred Nyaga.

By Fidel Mwaki & Alfred Nyaga

Introduction

Artificial Intelligence (AI) is rapidly reshaping Kenya’s digital economy. From financial services and telecommunications to healthcare, logistics and digital platforms, AI systems increasingly underpin critical decision-making and service delivery across both the public and private sectors.

The introduction of Kenya’s Artificial Intelligence Bill, 2026 (the Bill) marks a significant milestone as the country seeks to articulate a comprehensive regulatory and governance framework for AI.

However, as Kenya moves toward formalising this framework, several foundational questions arise. Does the Bill effectively regulate AI systems? How should institutional oversight be structured? What would a practical regulatory model look like in the Kenyan context? And what governance architecture is required to ensure responsible, transparent and innovation-friendly deployment of AI?

Key Recommendations for Policymakers and Industry

To strengthen the effectiveness and practicality of Kenya’s Artificial Intelligence Bill, 2026, the following considerations may be useful:

  1. Establish clear and operational risk classification criteria


Define objective and measurable criteria for determining what constitutes a high-risk AI system. This should enable developers and deployers to assess compliance obligations at the design stage and reduce regulatory uncertainty.

  • Introduce a framework for general-purpose AI (GPAI) models


Recognise the growing role of GPAI models as foundational infrastructure and consider tailored obligations around transparency, accountability and safe deployment.

  • Adopt a sector-sensitive regulatory approach


Different sectors present different AI risks. The framework should enable coordination with sector regulators such as finance, telecommunications and healthcare to ensure context-specific oversight.

  • Clarify liability and accountability across the AI lifecycle


Establish a clear allocation of responsibility between developers, deployers and users of AI systems, particularly where systems are used in decision-making with real-world consequences.

  • Strengthen institutional coordination mechanisms


Provide clear guidance on how the proposed AI Commissioner will coordinate with existing regulators, including the ODPC, CA, CBK, CAK and other sector bodies, to avoid duplication and regulatory fragmentation.

  • Provide for independent oversight and audit mechanisms


Introduce provisions for AI audits, documentation standards and oversight processes, particularly for high-risk systems and sensitive applications.

  • Embed flexibility through phased and adaptive regulation


Allow for the framework to evolve through secondary regulations, guidelines and regulatory sandboxes, ensuring responsiveness to technological developments without creating uncertainty.

These measures would help ensure that Kenya’s AI regulatory framework is practical, coordinated and capable of supporting both innovation and responsible deployment.

Understanding the Regulatory Gaps: Does the Bill Effectively Regulate AI Systems?

The Bill places considerable emphasis on high-risk AI systems. While this approach mirrors developments in jurisdictions such as the European Union, it is not immediately clear how developers or deployers are expected to determine whether an AI system falls within that category.

In practice, this classification becomes one of the most important compliance questions for organisations building or deploying AI systems. Without clear and predictable criteria, organisations may struggle to assess their obligations. This uncertainty has the potential to affect both compliance and innovation.

Equally important is the treatment of AI systems that fall outside the high-risk category. AI technologies can generate meaningful societal and economic risks even where they are not formally classified as high risk. Issues such as misinformation, manipulation, algorithmic bias and systemic economic disruption may arise from such systems.

The Bill also appears to focus significantly on public sector deployment of AI systems, yet much of the development and deployment of AI in Kenya currently occurs in the private sector. Industries such as financial services, telecommunications, logistics and digital platforms already rely heavily on AI-driven systems. A balanced regulatory approach should therefore account for both domains.

A further gap is the absence of a clear framework addressing general-purpose AI (GPAI) models, including systems capable of generating text, code, images and other forms of content. These models increasingly serve as foundational infrastructure for a wide range of downstream applications and may require tailored regulatory treatment.

Globally, regulators are beginning to address these issues more directly. The EU AI Act introduces detailed risk classification frameworks and obligations for developers and deployers of high-risk systems, while also addressing GPAI models. China’s evolving regulatory framework similarly addresses algorithmic transparency, registration of AI deployers and security assessments prior to deployment.

The Governance Question: How Should AI Oversight Be Structured?

The Bill introduces an important institutional feature through the establishment of an AI Commissioner, tasked with overseeing AI development and deployment, monitoring compliance and issuing guidance on the responsible use of AI technologies in Kenya.

The creation of a dedicated oversight authority reflects an important recognition that AI presents regulatory challenges that extend beyond traditional legal frameworks.

However, the Bill raises a broader governance question: how should this oversight function interact with Kenya’s existing regulatory institutions?

Kenya already has several regulators whose mandates intersect with AI governance, including the Office of the Data Protection Commissioner (ODPC), the Ministry of ICT and Digital Economy, the Communications Authority of Kenya (CA), the Kenya Bureau of Standards (KEBS), the Competition Authority of Kenya (CAK), the Central Bank of Kenya (CBK), and various sector-specific regulators.

The Bill does not yet clearly define how the proposed AI Commissioner will coordinate with these institutions. In practice, effective governance of AI will require structured collaboration across multiple regulators rather than reliance on a single oversight authority.

There are also broader concerns around transparency and accountability across the AI lifecycle. AI systems typically involve multiple actors, including developers, deployers and organisations relying on system outputs. A coherent framework must therefore clearly allocate responsibility when AI systems produce harmful or unintended outcomes.

In addition, several aspects of operational governance are left to future regulations. These include independent AI audits, organisational governance frameworks, model transparency requirements and coordination mechanisms. While this approach provides flexibility, it also means that the governance architecture remains only partially defined at the legislative stage.

Designing a Practical Regulatory Framework for Kenya

These gaps point to a broader question: what would a practical and workable AI regulatory framework look like in the Kenyan context?

AI regulation globally is still evolving. Jurisdictions such as the European Union, China and Singapore are adopting different approaches, creating an opportunity for Kenya to design a framework that reflects both international best practice and local priorities.

A practical regulatory framework would benefit from several structural elements:

  1. A clear and predictable risk classification approach


Regulatory obligations should be tied to well-defined categories, enabling developers and deployers to assess their obligations at the design stage and reducing uncertainty.

  • Recognition of general-purpose AI models


These systems increasingly function as foundational infrastructure and may require tailored transparency, accountability and safety obligations.

  • Sector-sensitive regulation


Algorithmic risks vary significantly across industries, and systems deployed in sectors such as healthcare, financial services or critical infrastructure raise different regulatory concerns. Coordination with sector-specific regulators will therefore be necessary.

  • Clear allocation of responsibility across the AI lifecycle


AI systems often involve multiple actors, and a coherent framework must assign responsibility across this lifecycle to prevent regulatory gaps.

  • Building an Effective Governance Architecture for AI Oversight

Beyond identifying the governance gaps in the Bill, a key question is how Kenya can structure an effective and coordinated AI governance architecture in practice.

The introduction of an AI Commissioner is an important step toward institutionalising AI governance. However, effective oversight will require more than the creation of a single regulatory office.

AI intersects with multiple regulatory domains, including data protection, financial regulation, competition policy, communications regulation and consumer protection. Governance of AI systems will therefore require coordination across multiple institutions.

Organisational transparency and accountability will also be critical. As organisations increasingly rely on AI in decision-making, internal governance structures such as AI risk frameworks, audit mechanisms and oversight committees may become necessary.

At the same time, governance frameworks must ensure that regulation does not unintentionally discourage innovation. Mechanisms such as regulatory sandboxes and collaborative oversight models may help strike a balance between risk management and technological development.

Conclusion

Kenya now stands at a defining moment in shaping its AI regulatory and governance framework. The Artificial Intelligence Bill, 2026 provides an important starting point. However, its effectiveness will ultimately depend on whether the regulatory and governance framework is sufficiently clear, coordinated and capable of evolving alongside technological development.

The framework will need to reflect Kenya’s economic context and development priorities, while drawing from comparative approaches where relevant.

As the Bill moves forward, the upcoming public participation process presents an important opportunity for policymakers, technologists, legal practitioners and industry stakeholders to engage constructively with these issues and help shape a framework that supports both innovation and the responsible deployment of AI in Kenya.

  • Fidel Mwaki is the Managing Partner of FMC Advocates LLP (Kenya) and In-Country Partner (Kenya) at Primerio. He advises on corporate, regulatory and governance matters, with a focus on emerging issues in digital regulation and AI governance.
  • Alfred Nyaga is a Director at Digital Ethics Hub, a platform focused on shaping policy and practice in digital rights and AI regulation.

Are Nigeria’s Courts Ready for Big Tech? New Judicial Training Aims to Find Out

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By Matthew Freer

Nigeria’s courts are preparing for a wave of complex competition litigation as digital transformation reshapes the legal landscape, the Chief Justice of Nigeria announced at a three-day strategic judicial training programme held from 10 to 12 March 2026 in Abuja.

Justice Kudirat Kekere-Ekun disclosed that Nigerian courts “may witness a substantial increase in the volume and complexity of cases arising from competition and consumer protection disputes” as enforcement expands across the country’s evolving economy (The Guardian, 2026). The programme was organised by the Federal Competition and Consumer Protection Commission (“FCCPC”) in collaboration with the National Judicial Institute (“NJI”).

Digital Markets Drive New Legal Challenges

FCCPC Executive Vice Chairman Tunji Bello emphasised that “competition and consumer protection law often finds its most practical expression in the courtroom,” where legal principles governing markets are “tested, clarified and given authoritative interpretation” (Business Day, 2026).

The Chief Justice warned that the “proliferation of AI-driven systems is transforming markets in unprecedented ways,” introducing complex risks including “data exploitation, algorithmic manipulation of consumer choices, privacy infringements and the dissemination of misleading information” (Blueprint, 2026).

Bello noted that “technological innovation, digital commerce, cross-border transactions and increasingly complex corporate structures continue to reshape how markets function,” raising new questions around market dominance, restrictive agreements and consumer rights (The Whistler, 2026).

Building Capacity for Economic Evidence

NJI Administrator Justice Babatunde Adejumo explained that the training was designed to deepen judicial understanding of competition law principles, the Federal Competition and Consumer Protection Act (“FCCPA”) framework, and evidentiary standards in competition litigation, particularly regarding emerging issues in digital markets and financial technology (Blueprint, 2026).

The Chief Justice highlighted that Section 146 of the FCCPA permits consumers to approach courts directly without exhausting administrative remedies, reinforcing the need for judicial preparedness. She also emphasised strengthening alternative dispute resolution mechanisms to reduce pressure on courts (The Guardian, 2026).

Implications

The programme signals Nigeria’s proactive approach to building institutional capacity for competition enforcement. As Bello concluded, “the development of clear and principled jurisprudence in competition and consumer protection law will help shape market behaviour, strengthen investor confidence and protect the welfare of Nigerian consumers” (Business Day, 2026).

The message to multinationals operating in Nigeria is unmistakable: competition enforcement is no longer just an administrative risk but a serious legal frontier with real judicial teeth. For regulators elsewhere in Africa, the initiative offers a powerful reminder that effective antitrust systems require not just bold enforcement agencies, but judiciaries equipped to handle the technical complexity of modern digital markets.

‘AAT Looks Back’: a new Retrospective Series covering past events that did not get press

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Dominance in the Air: How Mozambique’s LAM Landed in Competition Trouble

By Matthew Freer

In August 2025, Mozambique’s Competition Regulatory Authority (“ARC”) imposed a significant fine of 11.1 million meticals (approximately ZAR 3 million or $175,000) on the national airline Linhas Aéreas de Moçambique (“LAM”) for breaching competition law by imposing unlawful surcharges and obstructing an official investigation.

Background to the Sanction

The ARC’s decision, formalised in Decision No. 03/2025 and published in the Boletim da República (Government Gazette), followed an investigation that began in November 2022 into alleged anti-competitive pricing practices by LAM. The regulator concluded that LAM, which operates the majority of domestic passenger flights in Mozambique, had abused its dominant market position by unlawfully applying a fuel-related surcharge, referred to as “YQ”, to ticket prices.

Originally designed to adjust fares in response to volatile fuel costs on international routes, the YQ surcharge had been banned by the Mozambican Government in 2021. Despite this, LAM continued to levy the charge on domestic flights, in some cases resulting in the surcharge amounting to up to 60% of the total ticket price (e.g., 6,000 meticais on 10,000 meticais fare).

According to the ARC, there was no legal basis or transparent accounting methodology to justify the continued application of the surcharge, which had the effect of inflating, and distorting, the real price of air travel for consumers. The conduct was therefore deemed unjustifiably excessive and harmful to passengers.

Breakdown of the Penalty

The total fine of 11,109,738.05 meticais comprised two parts. 8,332,303.54 meticais for the improper collection of the surcharge and 2,777,434.51 meticais for failing to cooperate fully with the ARC’s investigation, including providing incomplete or insufficient information.

The ARC gave LAM 15 days to settle the fine and two months to stop the surcharge practice completely. Should further irregularities be established, the matter has also been referred to the Attorney General’s Office for potential further action.

LAM’s Response and Appeal

LAM’s management, in a press conference in Maputo on 12 August 2025, publicly rejected the sanctions and announced its intention to appeal the ARC’s decision, asserting that key facts presented in its defence were not adequately considered by the regulator. The airline’s leadership further argued that its limited fleet and operational challenges, including competition from larger regional carriers, should be taken into account.

While LAM maintains that past administrations’ decisions contributed to the circumstances under scrutiny, the current board has acknowledged ongoing efforts to restructure and stabilise the airline, including fleet expansion plans.

Implications for Competition Enforcement in Mozambique

This enforcement action underscores the increasingly active role of the ARC in policing domestic markets and holding even state-owned enterprises accountable to competition standards. By confronting dominant behaviour and unjust pricing strategies, the regulator is signalling a robust application of the Competition Law (Law No. 10/2013), which prohibits abuse of dominance and empowers the ARC to impose fines for anti-competitive conduct and non-cooperation in investigations.

As Mozambique continues to liberalise and diversify its market economy, this case may set an important precedent for competition enforcement, particularly in sectors traditionally characterised by limited competition and strong public ownership.

Eswatini Chooses New Chief Enforcer with COMESA Experience

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Ms. Siboniselizulu Simelane Maseko has been appointed as the new Chief Executive Officer of the Eswatini Competition Commission (“ESCC”). The announcement was made by Minister of Commerce, Industry and Trade Manqoba Khumalo, who praised Maseko as a seasoned professional whose experience and leadership is well-suited to advance the ESCC’s mandate of promoting competition, regulating markets, and protecting consumer interests.

Says Andreas Stargard, competition lawyer with Primerio, “Siboni Maseko’s pick as CEO is a wise one — we were just discussing her potential new role while attending the COMESA conference in Livingstone, Zambia, in fact… While she is full of youthful drive and innovative ideas, she still brings well over a decade of experience in competition law and economic regulation to her small agency.” He describes her as “a friend of AfricanAntitrust.com and a well-connected player in our small niche field, due in large part to her multi-year COMESA experience.”

Ms. Maseko first joined the ESCC in 2011, working in the Mergers and Acquisitions Division, before spending eight years at the COMESA Competition Commission, where she rose to Principal Analyst and served as Acting Manager in the Enforcement and Exemptions Division. 

Maseko returned to Eswatini in 2024 to take up her current leadership position as Director of Competition and Consumer Protection at the Competition Commission, with AAT reporting extensively on this development. She holds a master’s degree in EU Competition Law from King’s College London and is currently pursuing a Master of Science in International Business Leadership and Management at the University of York.

Happening now: official launch of the COMESA Competition and Consumer Protection Regulations (2025) in Livingstone, Zambia

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COMESA Secretary General Kapwepwe & Quad-C CEO Dr. Willard Mwemba.

Healthcare Fraud at Tembisa Hospital: R2 Billion Procurement Fraud Exposed

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Courtney Kaplan

A long-running investigation, which is still ongoing, has yielded insights into a massive healthcare fraud at a local South African hospital.

Background

On 23 August 2021, Babita Deokaran, a whistleblower and acting Chief Director of Financial Accounting in the Gauteng Department of Health, was assassinated after exposing around R850 million worth of suspicious procurement payments at Tembisa Hospital. In July 2025, the SIU confirmed that it was finalising the investigation into the assassination.

On 1 September 2023, Proclamation No. 136 of 2023 (the “Proclamation”), was published in the Government Gazette, which gives the Special Investigating Unit (“SIU”) power to investigate accusations of corruption and maladministration regarding Tembisa Hospital and the Gauteng Department of Health. The Proclamation was signed under the Special Investigating Units and Special Tribunals Act 74 of 1996 (“SIU Act”).

In terms of the Proclamation, the SIU is authorised to:

  • Investigate procurement, which is not fair, competitive, transparent, equitable, or cost-effective, or which is prohibited by National Treasury guidelines;
  • Investigate unauthorised, irregular, or fruitless and wasteful expenditure;
  • Institute civil litigation in the High Court or Special Tribunal to recover losses suffered by the State;
  • Pursue pension benefits of resigned or retired officials during investigations;
  • Conduct criminal referrals to the National Prosecuting Authority (“NPA”);
  • Refer conduct to the South African Revenue Service (“SARS”) and National Treasury for blacklisting.

Key Findings

On 29 September 2025, the SIU released an interim report, indicating that approximately R2.043 billion was misappropriated via nine syndicates, including the Maumela, Mazibuko, and X syndicates, manipulating the hospital’s procurement system, which was not used for hospital equiptment. The total amount connected to officials amounted to R122,228,000, with 15 officials being implicated, and 116 disciplinary referrals arranged.

Criminal Charges against Former CFO

On 16 October 2025, criminal charges were laid against the former CFO of the Gauteng Department of Health, Lerato Madyo, who had originally frozen R104 million in questionable payments which had been flagged by Babita, but allowed them to go through and conducted an incomplete related audit report. Lerato resigned in August 2024 before a disciplinary finding was finalised. The charges against Lerato include violations of:

  • Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (the “PRECCA”) for failing to report corruption exceeding R100,000;
  • Section 21 of PRECCA for conspiracy;
  • Section 18 of the Criminal Procedure Act 51 of 1977 (conspiracy to commit fraud);
  • Section 38 of The Public Finance Management Act 1 of 1999 (the “PFMA”) for the failure to report irregular expenditure;
  • Section 51 of the PFMA for negligent procurement oversight;
  • Section 81 of the PFMA for financial misconduct; and
  • Theft and fraud.

Asset preservation

On 29 September 2025, the Special Tribunal granted an interim preservation order regarding around R900 million in assets allegedly acquired unlawfully from Tembisa Hospital. On 9 October 2025, an SIU Curator obtained R133,5 million in assets in Gauteng and Mpumalanga. In terms of the preservation order, implicated individuals must declare all assets to the SIU, with failing to do so being considered contempt of court. The SIU is authorised to institute a maximum of 41 civil recovery proceedings within 60 court days.

Arrests and bribery

In April 2025, evidence was given by the SIU to the NPA, Directorate for Priority Crime Investigation (“DPCI”), and Asset Forfeiture Unit (“AFU”) against the Operations Manager of Tembisa Hospital, Zacharia Tshisele, regarding asset recovery and criminal prosecution.

The SIU found that Tshisele obtained unlawful gratification from service providers between 2020 and 2023 and in November 2025, Tshisele paid R13,530,904.27 to the SIU, representing a portion of his proceeds from corrupt conduct.

On 23 November 2025, Papi Tsie, DPCI Sergeant, and Tshisele allegedly gave a R100,000 cash bribe to an investigating officer to attempt to interfere with prosecution. The exchange was a sting operation and led to the arrest of both Tshisele and Tsie, who both pleaded not guilty and were granted R5,000 bail. The case was moved to 27 February 2026 and Lt-Gen Siphosihle Nkosi, Hawks Acting National Head, stated that the investigation would proceed against officials participating in criminal dealings.

Suspensions and estate recovery

On 14 October 2025, Lesiba Arnold Malotana, Gauteng Health Head of Department, was suspended by Gauteng Premier Panyaza Lesufi. On 21 October 2025, an SIU lifestyle audit was released, indicating that Malotana was considered high-risk, and revealed R1,627,300 in ATM deposits which did not coincide with his salary. Malotana challenged his suspension in the Labour Court, which held that the suspension was lawful and rational.

On 4 November 2025, Dr Aaron Motsoaledi, Minister of Health, stated that the government would pursue the estate of the late Tembisa Hospital CEO Dr Ashley Mthunzi for asset recovery as he had allowed irregular purchase orders to go through. As of 8 November 2025, only one of 467 implicated entities had been placed on the National Treasury’s Restricted Supplier Register, prompting an ActionSA complaint to the Public Protector.

Implications

The investigation is still ongoing, with the SIU’s final report not having been released yet. This case illustrates systemic failures in anti-fraud controls in South Africa. Acting Police Minister Firoz Cachalia confirmed to Parliament on 5 November 2025 that criminal cartels have corrupted South Africa’s healthcare procurement at a systemic level beyond Tembisa. The SIU has indicated that Tembisa may represent only the tip of the iceberg across Gauteng’s public health system.