Physical Address
Kampala, Uganda
In May 2023, the Competition Bill that was tabled before Parliament in December 2022 was passed by Parliament. However, the President declined to assent to the Bill on account of the creation of the Competition and Consumer Protection Commission, contrary to government policy on the rationalization of government agencies.
The Bill initially tabled in Parliament proposed to vest the responsibility of administration of the Bill with the Ministry of Trade, Cooperatives, and Trade, assisted by a Technical Committee. The Parliamentary Committee on Trade, Tourism, and Industry (the “Committee”) however recommended that the administration of the law vest with an independent statutory authority, government policy on rationalization notwithstanding, given the critical nature of the law. Parliament accordingly adopted the Committee’s recommendation in the Bill that was passed.
The Case for an Independent Competition Commission
Administration and enforcement of the law is a critical issue that must be determined carefully if the objectives of the law are to be met. When it was considering the Bill, the Committee noted that given the technical nature of the work involved in enforcing a competition regime, an independent statutory authority was necessary to ensure institutional trust, independence, efficiency, objectivity, and impartiality in the administration of the law.
It should be recalled that in the Bill that was initially tabled before Parliament, the government, including government-owned enterprises were granted exemptions under the Bill. The Committee recommended that the Bill should apply to all economic activities and apply to all persons including government, state corporations, and local authorities if they engage in trade.
Given this expanded scope of the law to include government, it would logically follow that the responsibility for enforcement would ideally vest in an independent body as opposed to a government ministry considering concerns such as conflict of interest given that a government ministry would be regulating government, political interference, and influence peddling among others. Indeed, the OECD Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement notes that enforcement must be carried out by public bodies that enjoy independence and are free from, among others, political interference, and pressure.
It may therefore be argued that while the President’s concerns regarding government expenditure through the creation of new statutory agencies are well-intentioned, a strict implementation of rationalization policy, especially on this matter, would be to the detriment of the effective enforcement of the law. The rationalization should be done on a case-by-case basis, as the Committee proposed, based on the mandate of a particular authority. The mandate to enforce the competition regime is indeed one such mandate that is worthy of exemption from the application of the rationalization policy.
Conclusion
The administration of competition law is of utmost importance and goes to the root of the very essence and objectives of the law. As Parliament reconsiders the Bill, it must remain mindful of concerns about the technical capacity and independence of the body that will be charged with the administration and enforcement of the law. Due regard must also be given to the National Competition and Consumer Protection Policy of 2014 which earmarked the creation of a national Competition and Consumer Protection Commission as a key priority in the implementation of a competition regime in Uganda.
Previous commentary on the subject can be found here Commentary .
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