As commercial entities continue to flourish into multi-billion conglomerates or at least become dominant market actors, some business decisions stop just being innocent and instead become hard tackles against competitors or, even worse, the public.
To counter such behavioural tendencies, governments have developed the anti-trust law – better referred to as competition laws – to act like a referee in the marketplace. As usual, ours is mostly cut and paste. In most western jurisdictions, the enforcement agencies are very vibrant. They truly police economic actors to avoid abuse of their market dominance.
It is not strange to find multi-billion enterprises like Microsoft in the European Union being slapped with fines upwards of US$1 million. In Kenya, one gets the feeling that the conglomerates are having a field day, unchecked. Sample the following:
It is only in Kenya where in an elaborate dispute in the Supreme Court pitting a local television consortium against television broadcasting distributors, in a rare opportunity to discuss the interaction of intellectual property and competition law, the court, instead of an in depth analysis on the definition of markets and dominance, substantively dwelt on the constitutional 'freedom of expression' and directed parties to negotiate 'with the best interest of the public'.
It was not a sound advice. More like telling the fox to take care of baby sheep. Leaving us with the question: where is the Competition Authority? It is also only in Kenya where a dominant mobile telephone operator can create a big gap of different tariffs between the 'on net' and 'off net' customers and thereby create an incentive amongst the customers not to turn to competitors. And the regulator is quiet.
The French case of Orange Réunion, Orange Mayotte and Outremer Télécom, versus SFR and its subsidiary SRR case of 2009 gives insight on such dealings. They simply amount to predatory pricing. It is happening right under the close view of the Competition Authority as we speak.
The mandate bestowed on the relevant agency enables it to act and decisively so, but as it were, it has diverted its energies and time to fighting a complementary regulator for doing the right thing.
In the dairy milk processing industry, when one unit seems to be 'swallowing' all others with the approval of the regulator, one is never sure what will become of the industry in the short and long term. Or are there dynamics which the public is not privy to, which can shed light on those happenings?
The Competition Authority of Kenya should stop applying the law in a skewed manner.
We suffer from lack of coherent and proper regulation and this is captured all the more by the hue and cry about Mumias Sugar Company and others. The sleeping giants of the sugar industry should not be protected any more. The political protection they receive bears no economic benefits to the producers because international trends do not favour such protectionism any more.
The importation of sugar from Uganda should be encouraged and the regulator ought to provide guidance so that the industry is not ruined altogether by politicians whose interests are so transient and indeed, selfish.
The Competition Authority must step out and be counted for its existence and help the situation by stemming the mayhem taking shape especially in light of the reactions to the agreement Presidents Uhuru Kenyatta and Yoweri Museveni signed in Kampala on Monday.
This nation requires management of competition in a more liberalised sense as happens elsewhere in the world. The regulation is not to protect monopolies but to promote competition and this is the true forte of CAK. This function should not be surrendered to political and other actors whose interests are never well thought out at any one time.
There are major complaints building up in the real estate, pharmaceutical, tourism, media, aviation and telecom sectors that CAK should be addressing as they arise but there is some form of inertia and misdirected effort as shown by the Director General's reaction to rules drafted by a complimentary authority against dominance issues.
There is need to reign in on cartels and abuse of dominance that are emerging and enforcement of standards and quality which are functions of CAK. For example, it should be working with NACADA but as noticed, it has been nowhere.
We wish to see economic and social justice in Kenya as we pursue growth in various sectors. Concentration of economic power should constantly be reviewed and corrective measures put in place.
The law is in place, its enforcement is wanting and the barb goes to the Competition Authority of Kenya.
