Time to overhaul rules on competition in Kenya

NAIROBI: Supremacy tussles between Kenya’s communications and competition authorities over the jurisdiction and enforcement of competition-related laws and regulations began with the amendment of the Kenya Information Communications Act 1998. Through the amendment, Parliament sought to compel the Communications Authority to consult with the Competition Authority prior to declaring a person or institution “a dominant telecommunications service provider”, which appeared to erode the powers of the former. In 2015, the Competition Authority thwarted attempts by the Communications Authority of Kenya to declare Safaricom a dominant player in the telecommunications sector.

The criteria for determination of dominant position in the two legislations vary. Whereas section 23 of the Competition Act has an expanded scope in the definition, the latter is specific. Section 84W5 (a) of the Kenya Communications and Information Act, 1998 stipulates the threshold for market dominance in the telecommunications sector as being at least 25 per cent of the total revenue of the entire telecommunications market. In addition, the Competition Act has no provision for what the authority should do after an investigation into potential abuse as should have been contained in section (36).