Dual role of Commission prompts constitutionality questions

As Portia Nkani reports in the Botswana Gazette, the country’s two competition-law authorities are slated to be separated in the near future.  Botswana – a COMESA member state – has both a Competition Commission and Competition Authority.  Concerns over the dual roles of the Competition Commission (it is, since January 2011, both the strategy-setting administrative entity supervising the Authority and a quasi-judicial agency) have reportedly led to the structural change in organization.

The Chairman of the Competition Commission, Dr Zein Kebonang purportedly has voiced support for the decision to separate the two functions and agencies, saying “that regular contact between Commission and CA officials could give raise to reasonable appreciation of bias. ‘The independence and impartiality of Commissioners cannot be guaranteed when it doubles up as a board and as a tribunal. Besides relational bias, the likelihood of informational bias is also far too great. Sitting as a Board, the Commission acquires prior knowledge of disputes that are to be adjudicated before it as a tribunal. Undoubtedly, prior knowledge of a dispute may operate in the minds of the Commissioners and thus deprive the parties that appear before them a proper hearing,'” he has written in a position paper.

Procedural fairness demands that investigative and adjudicative functions must be kept separate. This is desirable because competition law and policy must be implemented in an objective, impartial and transparent manner. Unless the Competition Commission and the Competition Authority are afforded independence from each other, they are unlikely to objectively decide matters presented before them and the risk of bias will forever be present,’” he said, adding that public confidence and trust can only be enhanced if the adjudicative and administrative function were separated.

The initial call for the split of the authorities was made by lawyers for panel-beating companies under investigation last year (see article here):

Sadique Kebonang, counsel for one of the parties, had argued that the relationship between the agencies was “too intimate”: “The main test here is what the ordinary man out there perceives the two entities to be.”