‘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.

Scrap Under Scrutiny: SACC Raids Scrap Metal Firms over Alleged Price-Fixing

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By Tyla Lee Coertzen and Courtney Kaplan

On 13 February 2026, the South African Competition Commission (“SACC”) released a Media Statement (the “Statement”) indicating that it had carried out several search and seizure operations at four scrap metal purchasing companies in Germiston, Nigel, Vanderbijlpark, and Hammanskraal.

The SACC initiated the dawn raid investigations upon grounds of reasonable suspicion that the four companies – namely, Scaw South Africa (Pty) Ltd (“Scaw”), Cape Gate (Pty) Ltd (“Cape Gate”), Shaurya Steel (Pty) Ltd t/a Force Steels (“Force Steels”), and Unica Iron and Steel (Pty) Ltd (“Unica”) – were involved in fixing purchasing prices of shredded or processed scrap metal, used in the manufacturing of steel products, which may amount to a contravention of section 4(1)(b)(i) of the Competition Act 89 of 1998 (the “Act”).

Section 4(1)(b)(i) of the Act prohibits agreements made between competitors, or concerted practices by competitors, including directly or indirectly fixing purchase prices or trading conditions. Firms who are found to be in contravention of section 4(1)(b)(i) may be liable to pay penalties of up to 10% of their annual turnover.

In terms of the Statement, the companies are suspected of having announced their price adjustments of the same prices, to be executed around the same time. The SACC alleges that this conduct amounts to a contravention of section 4(1)(b)(i) of the Act, which prohibits hardcore cartel conduct. The SACC’s investigation is said to have been brought about by a complaint submitted by a third-party in 2023, as well as a complaint initiated by the SACC in February 2026.

Section 48 of the Act empowers the SACC to conduct search and seizure operations and collect documents which concern an ongoing investigation. In respect of the scrap metal dawn raids that took place on 13 February, SACC provided that it received a search warrant from the North Gauteng (Pretoria) High Court authorising it to carry out these operations. The SACC further indicated that documents and electronic data will be seized and analysed with other relevant information to establish whether the companies are engaged in conduct which contravenes the Act.

Search and seizure operations are also known as “dawn raids” and are often initiated at the start of an investigation, usually before the respondents are aware they are under investigation, to enable the SACC to obtain the information before it might be destroyed. These inspections often come as a surprise to parties and are done in an effort to obtain evidence of potential infringements of the Act. The SACC, often accompanied by the South African Police Service, is provided wide powers for search and seizure through dawn raids, and would be entitled through a warrant to inspect company records, employee records, and both company and personal electronic devices.

Cape Gate responded to the allegations stating that it believes the search warrant is unlawful and that it plans on instituting legal proceedings to have the warrant set aside. The warrant was granted ex parte, meaning it was granted in the absence of the affected parties, and thus Cape Gate believes it has the right to institute proceedings against it. Cape Gate alleges that the SACC did not disclose all the necessary information to the Court when it applied for the warrant. Dorothea Ziegenhagen, the CEO of Cape Gate, stated that the company denies any wrongdoing and asserts that its operations fully adhere to competition law.

Interestingly, in 2025, the Competition Tribunal found Cape Gate guilty of being involved in the fixing of prices in the scrap metal market. Cape Gate denied this and has stated that the calculation was decided on in terms of transparent negotiations between buyers and merchants and has maintained that the SACC and Department of Trade and Industry knew of the negotiations and failed to acknowledge such. Cape Gate lodged an appeal with the Competition Appeal Court which is expected to be heard by the end of March 2026.

Commissioner of the SACC, Doris Tshepe, had indicated in a statement that the scrap metal market forms part of industrial intermediary products, one of the priority sectors monitored by the SACC, and thus false coordination of purchase prices may materially interfere with pricing in the downstream steel value chain. Commissioner Doris Tshepe further provided that dismantling any alleged price-fixing cartel in the scrap metal market would significantly assist in getting rid of artificial barriers to entry and foster a favourable environment for all firms, especially small firms and businesses owned by historically disadvantaged persons to contribute to the market.

The dawn raid comes as a surprise, particularly given that while dawn raids are certainly an effective investigative tool that may be utilised by the SACC as part of its enforcement efforts, the use of dawn raids has been significantly limited in recent years, with the last dawn raid conducted in 2022 on a number of insurance firms. The dawn raids, however, indicate the SACC’s continued commitment to enforcement in the metal sector.

AdLegal lodges COMESA complaint over Meta’s WhatsApp AI restrictions

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By Courtney Kaplan and Leon Hattingh

On 5 January 2026, the competition and consumer practice group, AdLegal, lodged a complaint with the COMESA Competition and Consumer Commission (the“CCCC”) under Regulation 67 of the new COMESA Competition and Consumer Protection Regulations, 2025 (the “Regulations”). This complaint was launched against Meta Platforms Inc and Meta Platforms Ireland Limited, following its 15 October 2025 amendment to WhatsApp User Agreements, which allegedly restricts the manner in which other AI chatbots can use WhatsApp’s application programming interface (“API”).

The User Agreement is a contract entered into between users and WhatsApp that sets out what either party is entitled to do. With WhatsApp alleged to be a preferred, or ‘dominant’, messaging platform throughout the African continent, this purportedly provides both WhatsApp and its parent company, Meta, an unduly strong platform on which to promote its own services.

Meta has been accused of the similar violations by competition authorities elsewhere and faces probes across multiple jurisdictions, including in the European Union and Brazil.

AdLegal’s claim against Meta

AdLegal alleges that Meta currently allows users access to Meta AI directly in WhatsApp chats, further that the API is used to integrate any third-party software, including alternative AI products, which compete directly with Meta AI, such as Grok, Gemini and Open AI’s Chat GPT.

In this regard, AdLegal alleges that:

  • Meta’s updated user contract, which restricts the use of this API by competing AI companies, restricts entry of new AI companies into the market, violating Regulation 36(1)(a) of the Regulations;
  • this conduct deters and prevents competition in the AI market, which violates Regulation 36(1)(b) of the Regulations.
  • the update can foreclose other undertakings from the market that rely on WhatsApp’s platform to provide their AI services to users, violating Regulation 36(1)(c) of the Regulations.

What this means for Meta and for the COMESA market

While the CCCC’s investigation into the alleged conduct remains in its initial stages, the complaint sends a strong message to multinational companies that enforcement and complaints in the COMESA region are to be taken seriously, particularly with the onset of the new Regulations, promulgated in late 2025. The complaint is a signal to multinationals, particularly in digital markets, that compliance with the competition regulations will be enforced, particularly where dominant market positions are alleged to have been abused.

John Oxenham, director at Primerio notes that the complaint marks a significant step towards challenging anti-competitive practices and holding tech companies in the COMESA region accountable. The outcome of the investigation could mean that dominant tech companies operating across Africa must adopt open, competitive digital ecosystems instead of leveraging their market position to sideline rival AI providers.

African Antitrust — the Big Picture: 2025 in Review & Outlook for ’26

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Competition-law specialists at Primerio have compiled the following snapshot of 2025.

Competition law enforcement across Africa continued its market trajectory of expansion throughout 2025, with early signals in 2026 enforcing a continent-wide shift towards more assertive, coordinated and policy-driven antitrust regulation. At both a national and regional level, authorities have increasingly moved beyond traditional enforcement and investigative tools.

A defining feature of 2025 has been the growing institutional confidence of African regulators. From the introduction and strengthening of regional regimes to the imposition of significant sanctions against multinational digital market players, African Antitrust enforcement bodies have demonstrated both technical capacity and willingness to ensure compliance with regional and national legislation. At the same time, legislative reform and increases in guidance notes and clarificatory tools signal an increasingly sophisticated regulatory environment, however, one which is more complex for multi-jurisdictional transactional and conduct risk.

This Snapshot spans the key developments we have previously reported on across Southern Africa, the Common Market for Eastern and Southern Africa (“COMESA”), the Economic Community of West African States (“ECOWAS”) and the East African Community (“EAC”), highlighting recent enforcement trends, institutional milestones and new policy innovations that shaped 2025 and which we anticipate will define the African Antitrust landscape as we move further into 2026.

Southern Africa

In South Africa, 2025 and early 2026 have been characterised by increasing interventions in mergers as well as continued use of exemptions and industrial policy.

Digital platform regulation was a defining theme in 2025. The South African Competition Tribunal’s (“SACT”) interim relief order in the Lottoland / Google Ads case signalled a willingness to ensure enforcement over exclusionary conduct in online advertising. This assertiveness was echoed in the GovChat v Meta ruling, where the SACT’s approach to platform access and data inoperability signalled the intention to rest the outer bounds of abuse of dominance enforcement against global big-tech firms.

In parallel, South Africa saw emerging scrutiny from the consumer protection angle, with the South African National Consumer Commission probing e-commerce platforms’ data practices and compliance frameworks, highlighting the convergence between competition and consumer protection enforcement in digital markets.

The South African Competition Commission’s (“SACC”) media and digital platforms market inquiry outcomes, as well as the Google’s agreement to pay ZAR 688 million to South African media, have further illustrated how negotiated remedies and sectoral interventions are being deployed to rebalance digital value chains.

Exemptions and block exemptions have remained a central tool available to parties in South Africa. The granting of Transnet’s 15-year exemption raised significant debate about the appropriate balance between enabling infrastructure coordination and preserving competitive neutrality. Subsequent developments in exemptions, including the block exemption in respect of Phase 2 of the Sugar Master Plan and corridor-based logistic exemptions, confirm that exemptions are being embedded as a long-term sector restructuring tool rather than temporary measures to allow coordination as well as a means to attain specific public interest and industrial policy goals.

Procedural and evidentiary developments have also shaped the landscape. The SACT’s decision granting absolution in the X-Moor tender cartel case clarified the evidentiary burden in collusive tendering prosecutions, reinforcing the need for robust inferential and documentary proof.

In relation to developments in merger control proceedings in South Africa, intervention dynamics were tested in Lewis Stores application to intervene in the merger between Pepkor Holdings Limited and Shoprite Holdings Limited. The South African Constitutional Court permitting Lewis’ intervention have raised much debate as to whether intervention by third parties frustrates and unduly delays the finalisation of merger hearings in South Africa.

The SACC had introduced a number of guidelines in relation to treatment of confidential information, as well as gatekeeper conduct with respect to pre-merger filing consultation processes, online intermediate platforms, notifications of internal restructures meeting the definition of mergers, and price-cost margin calculations. More recently, there have been proposed revisions to the SACC’s merger thresholds and filing fees, signalling a move towards greater ease in deal negotiation.

COMESA

2025 was a landmark year for both regulatory and enforcement developments in the COMESA region.

Most significantly, 2025 saw the introduction of the newly renamed ‘COMESA Competition and Consumer Commission” (“CCCC”) and the publication of the much anticipated COMESA Competition and Consumer Protection Regulations (2025). Early 2026 has also brought subsequent clarifications released by the CCCC with regard to its new suspensory merger regime in order to provide further insight into the CCCC’s approach in regulating mergers now brought to its attention.

The COMESA Court of Justice’s decision regarding the legality of safeguard measures imposed by Mauritius on edible oil imports from COMESA Member States demonstrated continued willingness of regional bodies policing activities of individual Member States.

Regional integration has been further reinforced through a number of cooperation initiatives, including formalised engagement between COMESA and the EAC on competition and consumer protection enforcement.

At Member State level, national competition regimes continue to interact dynamically with the regional system – this has been demonstrated by merger control retrospectives in Malawi, and regulatory developments in Zimbabwe. The Egyptian Competition Authority has, through recent guidance, also sought to provide further clarity with respect to its merger control regime and align with international best practice.

When considered alongside reflections on enforcement trajectory more broadly throughout the COMESA Common Market, the CCCC appears to be consolidating a far more assertive and procedurally sophisticated authority.

EAC

The operational launch of merger control marked a structural milestone for the East African Community Competition Authority (“EACCA”). The EACCA’s confirmation that it would begin receiving merger notifications from November 2025 introduced yet another operational regional authority on the African continent.

National enforcement has remained active alongside this regionalisation. Tanzania’s merger control developments and enforcement strategy signal a regulator seeking sharper investigative tools and clearer procedural pathways. Institutional cooperation is also deepening, as evidenced by alignment initiatives between the Tanzania Fair Competition Commission and the Zanzibar Fair Competition Commission, aimed at reducing jurisdictional fragmentation.

Kenya has also provided some of the region’s most visible enforcement signals. The upholding of cartel sanctions in the steel sector confirms judicial backing for robust cartel penalties. Leadership transitions at the Competition Authority of Kenya may also influence enforcement measures leading into the new year. More recently, the fine imposed in the Directline decision underscores the reputational and financial stakes attached to non-compliance with Kenya’s competition regime.

ECOWAS

Nigeria has been at the forefront of digital enforcement measures in Africa. The Nigerian Competition and Consumer Protection Tribunal’s landmark decision upholding the Federal Competition and Consumer Protection Commission’s $220 million fine on WhatsApp and Meta for discriminatory practices signals both the scale of sanctions now at play.

Regionally, the Economic Community of West African States Regional Competition Authority (“ECRA”) merger control regime gained operational depth in 2025, having been launched in late 2024. Early analysis framed the regime as a foundational shift towards increased regional review, while subsequent approval decisions demonstrated increasing practical application and institutional learning.

Legislative reform also remains underway at Member State level. The Gambia’s draft competition bill reflects a move towards more proactive market inquiry and enforcement powers, suggesting that more novel African national regimes are evolving in tandem with regional frameworks.

Conclusion and Outlook for 2026

Across the African continent, several cross-cutting themes have emerged. First, in line with global antitrust enforcement, digital market investigations and enforcement remains a focus point. From South Africa’s media and digital platform market inquiries and exclusionary investigations to Nigeria’s abuse of dominance sanctions and COMESA’s recent investigation into Meta, it is apparent that African competition authorities are increasingly asserting jurisdiction over digital platforms. Second, exemptions and public interest tools, particularly in South Africa, are being normalised as structural industrial policy instruments.

Regionalisation is also accelerating. COMESA’s long-awaited regulatory overhaul, the introduction and operationalisation of the EACCA’s merger regime and ECOWAS’ expanding enforcement collectively point towards a multi-layered African merger control framework requiring often complex, parallel and overlapping multi-jurisdictional navigation. Institutional cooperation agreements and memorandums of understanding further reinforce this trajectory, suggesting more coordinated enforcement and increased risk of detection.

Looking ahead, we note three developments which merit close attention. First, the practical implementation of new regional regulations, specifically those of the CCCC in COMESA, will test capacity, compliance as well as appropriateness of new regulatory hurdles in the global M&A space. Hand in hand with these, overlapping regional bodies will likely lead to jurisdictional disputes.  Second, Digital market remedies are likely to evolve. Finally, in line with recent developments elsewhere, the continued blending of competition, consumer protection, and industrial policy objectives suggest that African antitrust enforcement will remain uniquely pluralistic.

ECOWAS: ERCA Approves first Merger with Conditions

Posted on by Editor

By Jannes van der Merwe

Since the election of the Council for the Economic Community of West African States’ (“ECOWAS”) competition authority, the ECOWAS Regional Competition Authority (“ERCA”) on 1 October 2024, the ERCA has taken significant strides in bolstering the region’s M&A presence.

The council of the ERCA approved its first merger with conditions on 8 August 2025 when the council approved the acquisition of MultiChoice Group Limited by the Canal+ Group SAS. This decision follows a detailed assessment carried out under the ECOWAS Community Competition Rules and the regulatory framework governing mergers and acquisitions within the common market. The transaction was formally notified to the Authority on 24 March 2025 and was declared complete on 2 May 2025 after all procedural requirements and conditions were satisfied.

The operation involves Canal+ increasing its shareholding in MultiChoice from an existing minority position of c.45.2%, to full control. Both companies are competitors in the distribution of audiovisual services in the ECOWAS region.

The Authority examined the structure of the regional audiovisual market which includes wholesale content supply and retail audiovisual services delivered through satellite digital terrestrial television and online streaming. Although the market is highly concentrated and characterized by strong players the analysis showed limited overlap between the parties due to linguistic segmentation. While the combined entity would hold a significant share at the community level the merger was not expected to substantially reduce competition within national markets. The presence of alternative providers including regional and global digital platforms also contributes to ongoing competitive pressure.

The Council of the ERCA acknowledged concerns expressed by stakeholders and consumers regarding potential risks of market dominance price increases and reduced content diversity. As a result, the acquisition was approved subject to conditions. The first of its kind in the common market.

The Council of the ERCA imposed the following conditions on Canal+:

  1. Canal+ is required to maintain a diverse range of audiovisual offerings for French and English speaking audiences;
  2. Canal+ to preserve existing distribution networks; and
  3. Comply strictly with competition rules and to also annually report to the Authority and notify any price changes to enable effective monitoring.

Michael-James Currie, director at Primerio, states: “This conditional merger is evidence that the ERCA intends to strike a balance between promoting investment into the region, while also considering the effects on the market and consumers.”