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Competition Law-Take Home-March 2012

Competition Law-Take Home-March 2012

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Published by Kijanaa Mshy

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Published by: Kijanaa Mshy on Apr 01, 2012
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OF LAW COURSE CODE: LCC 403 COURSE TITLE: COMPETITION LAW Instructions: i) Plagiarism will result into automatic referral to disciplinary action and awarding of zero marks. ii) Assignment must be typed and not to exceed 4 pages, Times New Roman, 1.5 spacing
iii) Assignment to be handed in at 5: 00 PM on 9th March 2012 at the Private Law Department.

iv) No extension will be granted for late submission of the assignment. Zero marks will be awarded. v) Proper referencing style to be used. vi) One point is one mark. Question Discuss the competition policy in Kenya and analyze whether it meets international standards of best practice. (15 Marks)

collusive tendering and collusive bidding at an auction. A new Competition Bill. the current Act (Cap. monopoly undertakings. The Act covers three main areas: • Restrictive Trade Practices (RTPs.. It emphasises reducing entry barriers and restrictive business practices.504) departs from what is increasingly considered desirable in terms of international best practice. In short. • Checks and balances with rights of appeal. • Provisions for imposing significant penalties. trade association and wholesaler. regulations and procedures. • Transparent. Best practice would be to include measures in the act which ensure the autonomy of the competition agency. predatory trade practices. • Separate investigation. The law depicts a broad range of entities. irrespective of which group they affect.. Best practice features of a competition authority • Independent. key among them consumers. discrimination in supply. Kenya’s current competition law aims to protect the process of competition. separate the responsibilities for investigation and adjudication. well-designed administrative mechanisms. distributors. • Expeditious and transparent proceedings which safeguard sensitive business information. • Control of Monopolies (sections 22 to 32): Defines provisions for the control of monopolies. all falling under Section 2 of the Act. and access to information on legal and economic interpretations. prosecution and adjudication functions. insulated from political interference. and enable the competition agency to impose sanctions at a level which act as an effective deterrent. and • Control and Display of Prices (sections 33 to 39): Defines the provisions relating to price control.History. which are now being revoked. This Bill does seem to address a number of the current deficiencies in the law. reviews of decisions. retailers. . mergers and takeovers. (2009) has been presented to parliament and may be passed in the near future. section 4-21): Addresses associations. customers..

and to some extent appears to operate as an advisory body to the Minister. 1 United Nations Conference on Trade and Development (2005) Peter Kanyi (3rd September 2009) 2 . and in March 2009. The activity level of the competition authority can however be said to be moderate. The Bill has gone through two readings in Parliament and is currently being discussed by the Finance.Currently. within the Finance Ministry. The Team submitted a report to the Minister. The Government of Kenya established a Task Force to review the law in May 2005. which established the Monopolies and Prices Commission (MPC). The Minister is not bound to accept its advice. its budget is within the Ministry‟s budget and the Minister appoints its Commissioner. These deficiencies have also been re-iterated in a recent speech made by Peter Kanyi of the MPC2. The MPC has limited powers of its own. It seems that the current Kenyan competition law was meant to be a transitional measure to move the country from a price control regime to one based on free market principles.504 of the Laws of Kenya. investigations into unwarranted market concentration cannot be independently initiated by the MPC (monopolies control commision) – only on the instructions of the Minister. The Kenyan competition authority has limited formal independence in that it is an integral part of the Ministry of Finance. but it seems that Ministers have generally been reluctant to reject advice publicly. a draft Competition Bill was published and presented for discussion in the National Assembly. There is presence of competition law and authority in Kenya but it is not independent from the government. Monopolies and Price Control Act (MPCA). the national competition law is mainly embodied in the Restrictive Trade Practices. Administrative deficiencies in the law have been highlighted in the voluntary peer review on competition policy conducted by UNCTAD in Kenya1. Planning and Trade Committee. In addition. though we understand that there have sometimes been discussions around the need for the MPC to alter its advice. Cap.

.pdf 2.ppt 5..id./Overview-ofKenya-Competition-Law.ke/index..unctad.za/..pdf 7. 9.org/Downloads/Bills/2009/200903..org/.kenyalaw.org/ARC/Nairobi/Competition_in_Energy_Sector/pdf/Competition_Law_in_Kenya. .. 4. www.cak.cuts- international..ke/index.php?option=com_content&view./Conferences_.go..asp?docid=6467&lang.. www.unctadxi.go.. 8. www. http://www. www..CompetitionPolicyTanz.. www.org/templates/Download.aspx?selected=doc 6.cak.ifc.id.org/templates/Event____2939. www... 3.Bibliography 1..co.compcom. www.php?option=com_content&view..

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