Competition Authority’s Mandate to Widen to Include Consumer Protection

The mandate of the Competition Authority of Botswana (CA) is set to widen to include enforcement of the Consumer Protection Act. The Consumer Protection Amendment Bill and the Competition Amendment bill were recently gazetted and will be tabled before Parliament to be enacted into laws.

In the proposed amendments, the Competition Authority will change its name to the Competition and Consumer Authority (CCA) while the structure of the organisation will also be changed to remove any conflict of interest within its governing body, the Competition Commission. The Commission currently serves as the adjudicating body in competition cases presented to it by the CA, and also serves as the governing board of the CA. This arrangement poses conflict of interest concerns and has been the subject of contention by aggrieved parties who challenged the propriety of the structure while appearing before the Competition Commission.

The amendment Bills propose a new governing body called the Competition and Consumer Board, which will be responsible for the governance of the affairs of the Competition and Consumer Authority. A new tribunal known as the Competition and Consumer Tribunal will also be established to play an adjudicative role. At the commencement of the amended Consumer Protection Act, the consumer protection office shall cease operations as a government department, and its functions and duties shall be transferred to the CCA, reads the Bill. All the staff of the consumer protection office shall be seconded to the Authority for a period of 12 months while all pending cases within the department will be taken over by the CCA.

Some of the proposed amendments to the Competition Act include a new provision for criminal sanctions for officers or directors of enterprises who contravene the provisions of the Act by engaging in cartels   and practices such as price-fixing and bid-rigging. Under the proposed sanctions, any officer or director is liable for a fine not exceeding P100,000 or a term of imprisonment not exceeding five years, or both. The current Competition Act does not provide for criminal sanctions. 

On the merger control provisions of the amended Competition Act, a new section will be introduced, which allows participants to, within 14 days after a decision to reject a merger is made, make an application to request the CCA to re-consider its decision by providing a presentation of new facts or evidence that were not submitted with the original notification.

Additionally, the merger control provisions are to introduce a fine not exceeding 10% of the consideration or the combined turnover of the parties involved in a merger, implemented in contravention of the Competition Act. This means that enterprises implementing a merger without notifying the Authority will be liable to the fine.

The Minister of Investment, Trade and Industry Honourable Vincent Seretse is set to present the bill before Parliament.

Source:  Additional reporting by Mmegi