Tag: Mwemba

COMESA — a 2025 Retrospective (and Thoughts on the Path Forward)

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By the Editor

COMESA’s long-delayed and much-anticipated publication of the new 2025 Competition and Consumer Protection has prompted much fanfare, and rightfully so.  It represents a potential turning point and coming-of-age for the now 12-year old regional antitrust regulator. 

We decided to swim against the current and, rather than focus exclusively on “COMESA 3.0,” take a look back at the past year, so as to better gauge the (now) CCCC’s future performance versus its immediate past.

Fortuitously, our editor was present at a gathering of the ‘Fourth Estate,’ convened in Nairobi by COMESA’s Dr. Willard Mwemba.  For the third consecutive time, the Commission had invited members of the press to present its successes, show off the tight relationships between its staff and that of other national authorities (of note, David Kemei, Director General CAK, chairman of the EACA and local host, was present for most of the event, as was of course the agency’s éminence grise, Dr. George Lipimile), and to remind the assembled journalists that, in the bigger picture, the agency’s AfCFTA competition protocol coordination remained ongoing — more on that another day…

Without further ado, here are the 2025 COMESA highlights, as selected by the Commission:

Mergers

The large francophone-anglophone broadcasting deal of Canal+ acquiring Multichoice presented “lots” of competitive concerns according to Dr. Mwemba.  Already dominant firms merging to form an even larger entity was a serious threat to broadcast competition. Multichoice’s past behavior of refusing sublicenses and threatening to leave certain markets showed its unparalleled dominant position in various COMESA submarkets.  The parties did compete head-on with head other in three jurisdictions, Rwanda, Madagascar, and Mauritius, and would have had a foreclosing position COMESA-wide in relation to super premium content, leading the (then still) CCC to seek prohibition of the merger, and at a minimum the survival of Multichoice (and its “Talent Factory”) as an independent entity and employer in the region.

The parties’ defense relied in part on arguments alleging subscriber losses, eventually resulting in a conditional approval by the CCC with several commitments of the parties.

Two failure-to-file violations stand out in the past year: The Bosch/Johnson Control deal drew a failure-to-file violation of the (much maligned and soon to be replaced under the new Regulations) “30-day rule”.  Interestingly, the fine was reduced from a significant $400,000 initial amount to an almost negligible $8000, as JCI (the target and a first-time offender entitled to a 30% fine reduction) was to blame for the “inadvertent” false company statistics Bosch used to calculate whether the filing threshold was met.  While challenged by the acquirer, Bosch received a symbolic $1 fine for its own negligence in failing to vet the target’s figures for purposes of determining notifiability.

In the Mauritian BRED/BFV banking transaction, the fine was significantly reduced by the acquirer’s cooperation, minority shareholding status in many subsidiaries, and first-time offender status, resulting in merely $28,005 initial F2F fines.

On a broader scale, looking to the newly established EAC competition regime and its merger notification requirements, Dr. Mwemba recognized the concern that dual notifications will occur in all likelihood for the foreseeable future.

Anticompetitive Practices

The Commission’s standout case this past year was doubtless the “beer matter”: three main areas of concern stood out in the Heineken case, in which the respondent was found to be dominant in various geographic markets.  The three issues were: single-branding (foreclosing competing products at the downstream distribution level), absolute territorial restrictions (prohibiting distributors from not only active but also passive selling into unauthorized regions), and resale price maintenance (imposing a firm price — or here, a fixed profit margin — on resellers of the products).  A long lasting case, from June 2021 until early September 2025, resulting in a settlement procedure, eliminating the three clauses of concern and imposing the maximum settlement amount of $900,000 on Heineken.  Of note: Beer makers are also subject to an ongoing CCC investigation into the cross-shareholdings of various manufacturers.

Similarly, the Commission accused Diageo of the same types of anticompetitive practices in several COMESA member states. As the respondent had stopped one of the offending types of conduct (RPM) prior to the investigation’s commencement, the final combined fine amount was reduced to $750,000.

A further territorial restriction investigation into Toyota’s distribution practices is ongoing and “at an advanced stage”, with the CEO expecting to close the matter by Q1/2026.  Finally, the CCC is evaluating the effects of, among other things, Coca-Cola’s unilateral single-branding rules against retailers stocking only its own products in branded refrigerators, which can result in effective foreclosure of competing brands, especially at small retail businesses with limited floor space allowing only a single fridge.

Consumer Protection 

The airline sector did not escape the CCC’s enforcement net, as British Airways/Qatar experienced in the recently concluded investigation into Nairobi-London route collaboration among the parties, which they claimed allowed them to increase the volume of flights to 28 per week and lower ticket prices. The CCC permitted the conduct for a limited time of 5 years, requiring the parties to provide proof of the alleged efficiencies within two years.

On the consumer protection front, the CCC was heavily focused on the air travel sector over the past reporting year. It will publish, on Monday coming, a report detailing the results of its year-long airline survey and study, undertaken in conjunction with the African Union’s airline regulator.

Its signature agriculture study program, the African Market Observatory, continues to be funded and operationally supported by the Commission, having provided a key report to the COMESA Council of Ministers.  This effort has also led to the ICN having awarded the running of its agriculture program to the Observatory.  Dr. Mwemba proudly highlighted that the CCC assisted in averting a potential hunger crisis, namely in an (unpublished, we presume) maize case involving a sovereign engaging in absolute territorial restrictions, threatening serious food insecurity in Eswatini; it was the CCC’s advocacy efforts, as opposed to a full-fledged investigation, that yielded the positive results.

Finally, the CCC also concluded its drafting of a unified Model Consumer Protection Law, to serve as a standardized & harmonized guideline for African countries.  This comes as part of an effort to eradicate the fragmentation of competition and consumer protection laws, seeking the eradication of harmful corporate conduct and non-tariff trade barriers.

Looking Ahead: What’s in Store for COMESA 3.0?

Diverging from the titular “retrospective,” it appears fitting to step forward into the present moment and look ahead, with the Commission’s recent successes under its former Regulations now firmly established. To do so, I will quote from an article Dr. Liat Davis and I recently published in the Concurrences journal, entitled “Refining Regional Rapprochement: COMESA’s Competition Enforcement Comes of Age“:

The Mwemba era (2021 – present) has both accelerated and consolidated these earlier reforms, contributing to increased confidence in the regime among international stakeholders. With the exception of a temporary pandemic-related decline, merger activity has continued to rise, surpassing 500 notifications to date and now including the Commission’s first enforcement against gun-jumping. Non-merger enforcement has also expanded, with 45 conduct investigations and at least two cartel cases initiated. In parallel, the Commission has entered into numerous Memoranda of Understanding and multilateral cooperation agreements with African and global counterparts, strengthening its external partnerships. At the regional level, the CCC has acted as a catalyst for the establishment and development of National Competition Authorities (NCAs), offering indirect financial support, training, and collaborative initiatives.

This iterative process of course correction and capacity-building is now culminating in the long-awaited revision of the primary legislation. The new CCPR, due to take effect at the end of 2025, will formalize the Commission’s expanded mandate.  In light of the extensive reforms embodied in the new CCPR, and consistent with the prior informal designation of the CCC’s post-2021 period as “COMESA 2.0,” the implementation of the CCPR will mark the beginning of a third phase in the regime’s evolution. Appropriately described as “COMESA 3.0,” this stage is expected to be characterized by the following key attributes:

  • Expanded unilateral-conduct enforcement, owing to increased staffing, sustained capacity-building, and growing experience in conduct and cartel cases;
  • A significant rise in cartel investigations, driven principally by the forthcoming leniency regime;
  • Higher merger volumes, resulting from the move to a suspensory filing regime and accompanied by a likely increase in conditional approvals (subject to wider global economic conditions); [note: the CCC’s statistical trajectory is already sloping upward, as it has reviewed approximately the same number of transactions in the past 4 years as it had in the first 8 years of its existence.]
  • Strengthened consumer-protection enforcement by the ‘CCCC’, reflecting the Commission’s broadened mandate and aligning with wider African competition-law trends, including South Africa’s increasing incorporation of public-interest factors in merger analysis and Nigeria’s FCCPC using data-protection grounds to impose record fines; and
  • The development and application of a carefully delineated “public interest” standard in competition cases, subject to strict guardrails to prevent politicization and adapted to the unique constraints of a multi-national enforcement regime.

COMESA’s New Competition & Consumer Protection Regulations: Game-Changer for Regional Enforcement?

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By Tyla Lee Coertzen and Joshua Eveleigh

On 4 December 2025, the COMESA Council of Ministers adopted the COMESA Competition and Consumer Protection Regulations, 2025 (the “2025 Regulations”), marking a significant overhaul of its regional regime since its inception in 2004. The 2025 Regulations, which entered into force immediately, officially repeal and replace the previous COMESA Competition Regulations (the “2004 Regulations”).

The 2025 Regulations have introduced a number of substantive developments and refinements to the COMESA competition regime. Most significantly, the 2025 Regulations have have introduced a suspensory merger control regime, expand a number of enforcement powers, formalise a leniency regime in respect of hardcore carte conduct and significantly strengthen oversight of digital markets.

The “Quad-C”: COMESA Competition Commission has also been rechristened as the COMESA Competition and Consumer Commission (“CCCC”), reflecting its enhanced consumer protection mandate.

“The 2025 Regulations have not come as a surprise,” according to competition-law practitioner Michael-James Currie. As AAT has previously reported, the COMESA Competition Commission had on 24 January 2024 issued a press release requesting comments to its proposed Draft Regulations (as amended in November 2023). “As such, the 2025 Regulations have been contemplated, revised and tightened alongside a number of stakeholders and comments over a period of at least two years, including our and our clients’ input,” says Currie. The 2025 Regulations have also been coupled with an updated set of implementing Rules. Finally, the CCCC recently introduced a Practice Note regarding the new merger control regime.

We report comprehensively on these significant developments here, as well as in a series of future COMESA updates. For an academic review of the “coming of age” of the COMESA enforcement regime, please see Dr. Liat Davis and Andreas Stargard‘s separate Concurrences article, “COMESA: Regional Rapprochement Refined“, tracing the trajectory of the Common Market for Eastern and Southern Africa (COMESA) competition regime—the first multi-national antitrust enforcement system in Africa, and the second to be created globally after the European Union, in what has since become a growing field of regional enforcement regimes.

Regional Rapprochement Refined – Concurrences 10-2025Download

Merger Control

COMESA’s move to a suspensory regime & expanded merger assessment powers

“One of the most significant changes is the move to a suspensory merger control regime. Under the 2004 Regulations, merging parties could implement transactions notified in COMESA prior to obtaining clearance, provided such transactions were notified within 30 days of the ‘decision to merge’,” according to Primerio partner John Oxenham. “This is no longer the case: notifiable mergers must now be approved either unconditionally or conditionally by the CCCC prior to implementation.”

The 2025 Regulations have, however, introduced a derogation in respect of the suspensory rule, which provide a level of flexibility on the suspensory rules for parties involved in public takeovers, for example.

The Regulations also revise the definition of a ‘merger’ – introducing further clarifications on ‘controlling interest’ and explicitly capturing full-function joint venture arrangements – as well as introducing updated financial thresholds.

Dr. Mwemba, CEO of the CCCC

Transactions which meet the ‘merger’ definition will now be notifiable where the combined turnover or asset value of the parties in the Common Market equals or exceeds COM$60 million (US$60 million), and at least two parties each meet the COM$ (US$10 million) threshold. For certain digital market transactions, a new transaction-value threshold of COM$250 million (US$250 million) has been introduced.

In addition, the maximum merger filing fee cap has now been increased from COM$200,000 to COM$300,000.

The CCCC’s merger assessment powers have been broadened beyond the traditional lessening of competition (“SLC”) test. Borrowing from a number of African competition authorities’ precedent, the CCCC may now also consider specific public interest factors in merger control, including employment, the competitiveness of small and medium enterprises, environmental sustainability and effects on innovation in the Common Market.

Jurisdictional reach & Strengthening the COMESA one-stop shop

The 2025 Regulations reinforce COMESA’s ‘one-stop shop’ principle. COMESA Member States are now under stronger obligations not to require parallel merger notifications where a transaction falls within the jurisdiction of the CCCC. This provides greater legal certainty for merging parties operating across multiple COMESA Member States. That said, “some obstacles to a full one-stop-shop do remain,” according to Andreas Stargard. “Dr. Willard Mwemba, the CCCC’s CEO, noted at last year’s fall press conference that, in light of the newly-established EAC competition regime and its somewhat overlapping merger notification requirements, the Commission acknowledges the concern that dual notification obligations may occur in the foreseeable future due to the parallel regional body.”

For completeness, the COMESA Common Market comprises 21 Member States – Burundi, Comoros, the Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Eswatini, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Tunisia, Uganda, Zambia, and Zimbabwe.

Anti-competitive Practices

New standards and risks in respect of per se prohibitions

The 2025 Regulations overhaul the CCCC’s approach to restrictive practices. While the 2004 Regulations’ standard was related to having an ‘appreciable effect’, the general prohibition now applies to conduct that has the object or effect of resulting in an SLC in the Common Market.

The list of per se prohibitions has also been expanded. Certain vertical restraints – including absolute territorial restrictions, restrictions on passive sales and minimum resale price maintenance – are now prohibited outright and cannot be justified by efficiency defences.

Formal introduction of a leniency regime

One of the major developments flowing from the 2025 Regulations is the introduction of a formal leniency regime for hardcore cartel conduct occurring within the Common Market.

Importantly, any leniency decisions taken by the CCCC will officially bind individual COMESA Member States, meaning that leniency applicants will not be subjected to parallel enforcement at a national level for the same conduct reported. This significantly enhances legal certainty and aligns COMESA with international best practice.

Higher penalties and greater enforcement

Administrative penalties have been substantially increased by the 2025 Regulations. Under the 2004 Regulations, fines were capped at COM$200,000, the CCCC may now impose fines of up to 10% of a firm’s turnover in the COMESA Common Market. This change, coupled with the expanded per se prohibitions, signals a clear intention of the CCCC to strengthen enforcement and deterrence of anti-competitive practices.

Abuse of dominance and economic dependence

The definition of dominance has been revised, with a stronger focus on economic independence from competitors, customers and suppliers. While no bright-line market share thresholds are introduced by the 2025 Regulations, the broader definition may give rise to increased litigation and uncertainty.

The 2025 Regulations also introduce a new prohibition on the abuse of economic dependence which targets situations where a firm exploits a superior bargaining position over a counterparty that lacks reasonable alternatives, even where the firm is not dominant.

Increased focus on digital markets and gatekeepers

In line with international trends and standards, the 2025 Regulations introduce the concept of ‘gatekeepers’ in digital markets. Gatekeepers are subject to a wide range of behavioural prohibitions, including bans on self-preferencing, data leveraging, anti-steering provisions and discriminatory treatment of small and medium enterprises.

While the criteria for identifying ‘gatekeepers’ remain vague, the scope of the obligations is broad and signals a far more interventionist approach to digital markets in the COMESA Common Market than anticipated previously.

Enhanced market inquiry powers

The CCCC’s investigative powers have been broadened to include the ability to conduct market inquiries and allow the CCCC to compel information and take action, including launching official investigations, engaging in advocacy or negotiating potential remedies.

Importantly, the CCCC cannot unilaterally impose remedies on parties following a market inquiry alone.

Conclusion

The 2025 Regulations represent a major evolution in the COMESA competition framework. As the authors conclude in their Concurrences article cited above, “[t]hese reforms expand the CCC’s toolkit—introducing suspensory merger control, cartel leniency, market inquiries, and digital-market provisions—while also placing public interest and consumer rights more explicitly into the regional framework. They are ambitious, progressive, and aligned with global trends, yet they also raise difficult questions of clarity, implementation, and institutional capacity.”

In AAT’s view, provided adequate staffing and resources exist, the CCCC has now become one of the best-equipped regional competition regulators on the African continent.

Much will depend on how the 2025 Regulations are implemented in practice. For now, companies operating in the COMESA region should consider the 2025 Regulations in line with their compliance strategies and, if in doubt, seek professional legal advice to tailor their business practices and corporate strategies accordingly.

Malawi: More than CCCC HQ. A short Retrospective on Mergers in Malawi.

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Updated Malawi Merger Control Thresholds

By Michael Williams

Malawi’s new Competition and Fair Trading Act came into effect in 2024 (“2024 Act”).[1]  While this lags behind one of the best-known competition authorities in Malawi, namely COMESA’s Competition and Consumer Protection Commission (“CCCC”) headquartered in Lilongwe to the tune of over a decade, the domestic antitrust regime is being reinforced, as this legislative update shows. And with this latest edition, it is firmly in place when it comes to those national merger-control matters that escape the one-stop-shop of the CCCC. The Competition and Fair Trading Commission of Malawi (“CFTC”) stated that the goal of the 2024 Act is to:

  1. supplement certain areas that the previous Act lacked; and
  2. improving effective enforcement.

Several notable changes were included in the 2024 Act, particularly in respect of the introduction of a suspensory merger control regime. 

The 2024 Act also introduces a public interest test that the CFTC must apply when evaluating whether a proposed merger can or cannot be justified. This public interest test includes several factors including the effect of the potential transaction on:

  • specific industrial sectors or regions; 
  • employment levels; and 
  • the saving of a failing firm.

The CFTC has also been granted the power to impose administrative orders on parties who violate the 2024 Act, which include administrative penalties of up to 10% of a firm’s annual turnover or 5% of an individual’s income. 

The CFTC can also levy orders to redress wrongdoing, such as instructing refunds, exchange or return of defective products, and termination of unfair and exploitative contracts.

These increased powers come after the High Court of Malawi Civil Division ruled in the 2023 case of CFTC v Airtel Malawi that the CFTC lacked the authority to impose fines under the 1998 Act.[2]

To supplement the 2024 Act, the Minister recently published a Government Notice[3] that provides for the financial thresholds for mandatory merger notifications as well as an overview of other fees payable to the CFTC.

THE FINANCIAL THRESHOLDS FOR MANDATORY MERGER NOTIFICATIONS

Any transaction exceeding the following financial threshold will require prior approval from the CFTC before implementing:

  1. The combined annual turnover or combined value of assets whichever is higher, in, into, or from Malawi, equals to or exceeds MWK 10 billion (approximately USD 5 800 000); or
  2. The annual turnover of a target undertaking, in, into, or from Malawi, equals to or exceeds MWK 5 billion (approximately USD 3 000 000).

FEES PAYABLE TO CFTC FOR COMPETITION FILINGS 

The Government Notice sets the merger application fee payable at 0.5% of the combined annual turnover or total assets whichever is higher of the merging parties derived from Malawi. It is important to note that the Government Notice does not specify a maximum fee payable.

OTHER FEES PAYABLE TO THE CFTC

  1. Application for an Authorization of an Agreement at MWK 10 million (approximately USD 5 800) an agreement, a class of agreements under section 24(1) of the 2024 Act or an agreement which, any person who proposes to enter into, or carry out an agreement which, in that person’s opinion, is an agreement affected or prohibited by the 2024 Act. Importantly, an ‘agreement’ is defined in the 2024 Act, being: “any agreement, arrangement or understanding, whether oral or in writing, or whether or not the agreement is legally enforceable or is intended to be legally enforceable”
  2. Application for Negative Clearance at MWK 10 million (approximately USD 5 749,49) for any party to a merger transaction seeking clarification as to whether the proposed merger requires the formal approval of the CFTC or whose proposed merger is subject to review by the CFTC.
  3. Training on Competition & Consumer Protection at MWK 5 million per training package (approximately USD 3 000);
  4. Non-Binding Advisory Opinions for SMEs: MWK 200 000,00 (approximately USD 115); Micro-enterprises: MWK 100 000,00 (approximately USD 58); Other businesses: MWK 500 000,00 (approximately USD 300).

CONCLUSION

This supplementation by the Government Notice to the 2024 Act is of utmost importance for businesses and competition law practitioners operating within the jurisdiction of Malawi to ensure smooth transactions and to avoid statutory sanctions.

[1] Competition and Fair Trading Act No. 20 of 2024

[2] Competition and Fair Trading Commission v Airtel Malawi Ltd. & Anor. (MSCA Civil Appeal 23 of 2014) [2018] MWSC 3

[3] Government Notices No. 76 and No. 77 of 2024

4th CCC diplomatic conference on competition law places focus on inflation, food security, and poverty eradication 

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Senior diplomats from the COMESA region gathered in Livingstone, Zambia, for the fourth in a series of diplomatic antitrust-focused conferences that began in 2016 but were halted due to the coronavirus pandemic in 2019.

At today’s formal resumption of the recurring event, Dr. Willard Mwemba, CEO of the COMESA Competition Commission, introduced the conference session by calling out the importance of the agricultural sector to the people residing in the region, especially the very poorest of citizens.

He stated in unmistakable terms that his agency would prioritize this and related markets for heightened antitrust enforcement, to ensure the sector operates efficiently and competitively. “Accessibility (and affordability) of food is one of the most fundamental human rights. $2 per day are spent by the poorest people on average, and the majority of those two dollars is spent on food,” noted Mwemba.

Says Andreas Stargard, who attended the session, “it is clear that the view of the Commission is that agricultural markets in COMESA are not functioning as they should, based on studies the agency has undertaken with outside assistance.  The massive foodstuffs price inflation levels COMESA residents have suffered in recent years are not merely natural consequences of irreversible climate change but rather represent mostly economic profit to the manufacturers and traders, to the detriment of consumers, based on what Dr. Mwemba presented today.”

COMESA Secretary General, Chileshe Mpundu Kapwepwe, summarized the stark importance of the AG sector to the region, its people, and the economic zone in sobering statistical terms: “The agriculture sector is one of the key sectors for most Member States as it contributes more than 32% to the Gross Domestic Product of COMESA, provides a livelihood to about 80% of the region’s labour force, accounts for about 65% of foreign exchange earnings and contributes more than 50% of raw materials to the industrial sector.”

In light of this crucial importance of the agricultural and food markets, food security is high on the list of action items that COMESA must address practically and effectively, she concluded.  COMESA evaluates supply and demand levels across all 21 member states to assist with market assessment and planning.

The Diplomatic Conference’s guest of honour, Zambian Minister of Commerce, Trade and Industry, Hon. Chipoka Mulenga, noted in prepared remarks delivered by his deputy and permanent secretary to COMESA that, while “food production must be profitable for farmers, it must not be exploitative.”

In this regard, the famous Adam Smith quote referenced by Dr. Mwemba at a prior antitrust session comes to mind: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own self-interest. We address ourselves not to their humanity but to their self-love, and never talk to them of our own necessities, but of their advantages.”

Beyond the immutable wisdom of the Wealth of Nations from two and a half centuries ago, the (1) CCC’s increased competition law enforcement in the agricultural and food sectors, as well as (2) national member states are assisting the effort of ensuring wide and secure availability to all COMESA residents by creating and strengthening cross-border value chains in the food sectors with overlaps across member state borders, the Zambian minister observed.

CCC Celebrates ’10’ — a Decade of COMESA Competition Law

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Anniversary of CCC’s 2013 Creation to be Celebrated, Developments Discussed

Next week, African heads of state, ministers of trade and commerce, the secretary general of the 21-member state COMESA organization, Commissioners, and several heads of various competition agencies across the region, from Egypt to Eswatini & from Mauritius to Malawi, will join antitrust practitioners, legal experts, business people, and journalists in celebrating the occasion of the 10-year anniversary of the COMESA Competition Commission in Lilongwe, where the agency is headquartered.

Of course, AAT will be there to cover it.

As leaders of this august publication will know by now, our authors have followed the development of the CCC since its very beginning: from the nascent stages of having only a rudimentary staff and foundational rule documents, lacking sufficient guidance for practitioners and businesses alike, to the significant developmental stage under its first chief executive officer, Dr. Lipimile, who built out his enforcement team to coincide with the stellar growth of the CCC’s “one-stop-shop” merger notification statistics and attendant agency reviews (hiring economists and lawyers alike from across COMESA member nations) — and culminating, so far at least, in what we have come to call “CCC 2.0”: the latest iteration of the vastly successful multi-jurisdictional antitrust body, now led by its long-term member Dr. Willard Mwemba.

Under Mwemba’s aegis, the Commission has advanced well beyond a mere ‘rubber-stamping’ merger review body, as some had perceived the fledgling agency in its very early years (approx. 2013-15). The triple-C has since then begun to launch serious investigations into price-fixing, monopolization, attempted monopolization, gun-jumping, as well as market allocation schemes and secretly implemented transactions that parties had failed to notify.

While ‘antitrust is on our minds’, we note here for the record that, beyond its “competition” ambit that mostly remains in our focus at AAT, the CCC’s enforcement mission also includes a fairly large “consumer protection” brief, and the agency’s dedicated unit has investigated areas of consumer concern as broad as airline practices, imported faulty American baby powder, online ‘dark’ practices, pay-TV, and agricultural product quality disputes (milk and sugar come to mind) between Uganda and Kenya, to name only a few…

Our publication, together with several of the business journals and newspapers across the southeastern region of Africa, will report in great detail on the events, and possible news, to take place next week. Says Andreas Stargard, a competition practitioner with Primerio International:

“I look forward to hearing from these leaders themselves what they have accomplished in 10 years, and more importantly what they wish to accomplish in the near to mid-term future. In addition, I have a feeling that we may be treated to some truly newsworthy developments: I could imagine there being either confirmation or denials of the circulating rumour that the COMESA merger regime will soon become not only mandatory, but also suspensory. As most attorneys practicing in this arena know by now, the current Competition Regulations are not suspensory, which may be deemed too restrictive by the group’s Secretariat and its agency leadership in terms of its enforcement powers. After all, it is much more difficult to unscramble the egg than to never let it drop in the pan from the get-go!

Also, the CCC may reveal its plans in relation to a leniency programme for cartel conduct, which is plainly in order!”

Beyond that, Stargard surmises, participants at the almost week-long event may be treated to news about the CCC’s thoughts on digital markets, sectoral investigations, and the Commission’s upcoming “beyond-mere-merger” enforcement activities.

Breaking: CCC withdraws its recent Merger Practice Note

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An AAT-exclusive first report on this — somewhat stunning — development follows below. More details to be published once they become available in a new post…

On August 8th, 2022, the CCC officially announced the formal withdrawal of its Practice Note No. 1 of 2021, which had clarified what it meant for a party to “operate” in the COMESA common market. The announcement mentions that it will (soon? how soon?) be replaced with a revised Practice Note — a somewhat unusual step, in our view, as the revised document could have, or should have, been published simultaneously with the withdrawal of the old one. Otherwise, in the “interim of the void,” legal practitioners and commercial parties evaluating M&A ramifications in the COMESA region will be left with no additional guidance outside the bloc’s basic Competition Regulations and Rules.

Of note, “this clarifying policy document did not stem from the era of Dr. Mwemba’s predecessor (CCC 1.0 as we are wont to call it), but it was already released under Willard’s aegis as then-interim director of the agency,” observes Andreas Stargard, a competition lawyer at Primerio Ltd. He continues: “Therefore, we cannot ascribe this most recent abdication to a change in personnel or agency-leadership philosophy, but rather external factors, such as — perhaps — the apparently numerous inquiries the CCC still received even after implementation of the Note.”

To remind our readers, we had previously reported on AAT as to this (now rescinded) note as follows (Feb. 11, 2021):

The COMESA Competition Commission (“CCC”) issued new guidance today in relation to its application of previously ambiguous and potentially self-contradictory merger-notification rules under the supra-national COMESA regime. As Andreas Stargard, a competition practitioner with Primerio notes:

“This new Practice Note issued by Dr. Mwemba is an extremely welcome step in clarifying when to notify M&A deals to the COMESA authorities. Specifically, it clears up the confusion as to the meaning of the term ‘to operate’ within the Common Market.

Prior conflicts between the 3 operative documents (the ‘Rules’, ‘Guidelines’, and the ‘Regulations’) had become untenable for practitioners to continue without clear guidance from the CCC, which we have now received. I applaud the Commission for taking this important step in the right direction, aligning its merger procedure with the principles of established best-practice jurisdictions such as the European Union.”

Toyota’s distribution & pricing agreements under COMESA scrutiny

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Regional bloc’s antitrust enforcer further steps up investigations in the Common Market

By Gina Lodolo
On 16 June 2022, the Common Market for Eastern and Southern Africa (“COMESA”)’s Competition Commission (“CCC”) provided notice, as required by Article 22 of the COMESA Regulations (“Regulations”), that it launched an investigation into Toyota Tsusho Corporation (“Toyota”) in case no. CCC/ACBP/NI/3/2022.


Where the CCC has reason to believe that competition in the Common Market has been restrained, Article 22 of the Regulations requires the entity involved to be notified of the investigation, and further requires the investigation to be completed within 180 days of the notification. In this regard, the Toyota investigation was launched following allegations that the company contravened Article 16 of the Regulations. Article 16 (generally covering ‘restrictive business practices’) prohibits agreements that “may affect trade between Member States; and have as their object or effect the prevention, restriction or distortion of competition within the Common Market”.


The specific conduct referred to by Dr. Willard Mwemba, the Director and Chief Executive Officer of COMESA — who has revitalised the relatively young antitrust authority’s conduct investigations and increased its caché internationally by following best practices and engaging competition practitioners globally in the agency’s development and capacity-building process — includes Toyota’s distribution agreements with its authorised distributors. These vehicle distributors sell Toyota cars, trucks, and spare parts across the region, within their contractually designated territories. In this regard, the CCC is now investigating suspicions that the distribution agreements violate Article 16 of the Regulations in various ways — they may:
• Provide prohibitions on authorised distributors to sell outside of allocated geographic areas;
• Prohibit authorised distributors from indirectly selling outside of allocated geographic areas through selling to third parties, who they suspect will sell or transfer to another territory; and
• Indicate resale price maintenance by providing prices of Toyota products in the Common Market.

Andreas Stargard, a competition partner at Primerio Ltd. said, “this development shows how ‘CCC 2.0’ is truly emerging as a fully-fledged African antitrust enforcement authority and not a mere merger ‘toll booth’ regulator, which it essentially was for the first few years of its existence. The CCC has come a long way from the early days and is now pursuing abuse-of-dominance cases that it would not have had the capacity to tackle a decade ago”. Stargard observes that the Toyota case is “now the 3rd announced anticompetitive-business practice investigation of the year 2022 so far,” which is an absolute record for the CCC. “We’re talking proper grey-market / parallel-export restriction and RPM investigations here, this is no longer just a merger-fee collections agency.”

The agency invites public comment and further insight into Toyota’s dealings by 30th of July. Interested parties are invited to make comments to the Commission by 30 July 2022.

COMESA antitrust workshop addresses AfCFTA

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The COMESA Competition Commission (CCC), under the leadership of its CEO and Director Dr. Mwemba, organised its first “Emerging Trends in Competition and Consumer Law Enforcement in the Wake of Regional and Continental Integration” workshop in Zambia, targeting legal practitioners across and outside Africa. Its objective is to discuss various issues in competition and consumer protection law enforcement at national, regional and continental level including emerging issues such as the African Continental Free Trade Area (AfCFTA).

Michael Currie, a competition partner at Primerio, said of the event, “Great to be participating at the COMESA Competition Commission’s first Workshop dedicated specifically to legal practitioners, hosted here in Livingstone. It was informative, and simply good to be travelling, meeting old friends and colleagues and seeing world heritage sights all in a few days work. This is an important initiative by the CCC as it expands its advocacy and enforcement initiatives across the Common Market. Important topics on the agenda including updates on the CCC’s approach to penalties, settlement procedures and investigations as well as the more robust merger regime in place. Thank you Willard Mwemba for the invitation and congrats on a well-organised event!”

New CCC Chief addresses World Competition Day, lays out future of COMESA antitrust policy

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As we previously reported, long-time COMESA Competition Commission executive, Dr. Willard Mwemba, was recently promoted to his new role of permanent CEO of the CCC, after having been appointed Acting Director in February of this year. In this new capacity, he recently gave a thus-far unreported speech on the occasion of “World Competition Day” on December 5th, 2021.

In his short address, Dr. Mwemba lays out the mid-term future he envisions for the antitrust policy under his aegis in the Common Market, as follows.

Highlighting the importance of competition law for efficient and fair markets, with the goal of benefiting businesses (as opposed to being perceived as an impediment to business interests), Mwemba mentions key building blocks of the CCC’s enforcement going forward. These include resale-price maintenance and exclusive-dealing enforcement (around 1-1:30 in the little-known video, which has thus far only garnered two dozen views on the YouTube platform and is not yet published on the CCC’s own web site). He then moves on to merger regulation (2:45 onward), and further discusses the importance of the effectiveness of the actual competition law itself — noting that the CCC plans to amend its Regulations and Guidelines within the next year (3:40). Noting that the CCC cannot undertake this process very well alone, Mwemba highlights the cooperative approach of the Commission, partnering with and relying on other groups and stakeholders (such as the COMESA Women in Business group, OECD, and others).

Mwemba notes that the CCC’s “focus for the year 2022 will be on strict enforcement, especially against blatant anti-competitive conduct and blatant violations of the COMESA Competition Regulations, and in this case I mean cartels.  It is said that cartels are the supreme evil of antitrust … because it robs consumers, government, and businesses of huge sums…  So in line with this theme, our focus for 2022 shall be on cartels, and we shall make sure that we weed out all possible or potential cartels operating in the Common Market.”

The CCC chief concludes his address by saying that competition authorities “are not there to frustrate businesses, we are not the enemy of business”; instead, he sees the CCC’s role to ensure that markets operate fairly for all — a welcome reminder to the southern and eastern African business community to understand and embrace the precepts of antitrust law as an efficiency-enhancing mechanism for trading in the Common Market.

Dr. Willard Mwemba confirmed as CEO

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APPOINTMENT OF DR WILLARD MWEMBA AS THE DIRECTOR AND CHIEF EXECUTIVE OFFICER OF THE COMESA COMPETITION COMMISSION

 November 15th, 2021  Competition CommissionFacebookTwitterShare

PRESS RELEASE

 APPOINTMENT OF DR WILLARD MWEMBA AS THE DIRECTOR AND CHIEF EXECUTIVE OFFICER OF THE COMESA COMPETITION COMMISSION

 The COMESA Competition Commission (the “CCC”) wishes to inform the general public that the COMESA Council of Ministers at its 42nd Meeting held on 9th November 2021 appointed Dr Willard Mwemba as its Director and Chief Executive Officer.

The Commission’s Board, Management and Staff members wishes to congratulate Dr Mwemba on his well-deserved appointment. Dr Mwemba has been with the CCC since January 2013 being its first Head of the Mergers and Acquisitions Department until his appointment as the Acting Director and Chief Executive Officer on 1 February 2021. He has acted in this capacity until 9 November 2021 when his appointment was confirmed. Prior to joining the CCC, Dr Mwemba was the Director of Mergers and Monopolies at the Competition and Consumer Protection Commission (CCPC), Zambia.

Dr Mwemba has been instrumental in the enforcement of competition and consumer laws both at national and regional level. At national level, he has assisted a number of national competition authorities in developing and operationalising their mergers and restrictive business practices divisions. At regional level, he has been instrumental in implementing and reforming the COMESA Competition Law regime.  He has written extensively on competition law and is widely consulted on the subject at global level.

Dr Mwemba holds several qualifications among them Bachelor’s degrees in Economics and Law from the University of Zambia. He also holds a Master’s degree in Competition Law from Kings College London. He further holds a PhD from the University of Cape Town specializing in competition law.

The Board of Commissioners, Management and Staff members of the CCC have great confidence in Dr Mwemba’s capabilities and wishes him well as he executes the mandate of enhancing intra-COMESA trade through the creation of competitive markets.