Why, How, and When Do National Competition Agencies Support Supranational Regional Competition Regimes? A Case of the COMESA Competition Regime

Abstract

A supranational institution is established by Member States and delegated with regulatory authority to make legally binding decisions over a specific issue area. Focusing on an inherently political and complex issue area – competition policy – this paper examines the conditions under which national regulatory agencies (NRA) support supranational institutions sharing competencies with NRAs in enforcing a specific policy area. Using rational choice theory, which argues that actors are instrumentally motivated by benefits accrued and costs incurred when supporting institutions, COMESA national competition agency (NCA) officials were interviewed to elicit what motivates them to support the COMESA regional competition regime (RCR) over time. The findings of this study have shown that COMESA NCA officials consider benefits accrued and costs incurred when working with the COMESA Competition Commission (CCC). Beyond the benefits and costs analysis, membership in the CCC Board of Commissioners, the Memorandum of Understanding (MoUs) between CCC and NCAs, the ability of the CCC to consider NCA’s concerns in its decision-making, and citizen support for the CCC have all driven COMESA NCA officials’ supranational roles towards CCC. This study calls for nuanced research that explores the bureaucratic cooperation between NRA’s sharing competencies with supranational institutions to inform legal, political and international relations research. Importantly, the findings inform research on how supranational institutions can invoke national-level support for supranational governance.

‘When competition law is regionalized … national-level institutions and responsibilities are likely to remain … For national officials, regional implementation can be expected to represent significant cross-cutting incentives. On the other hand, competition law officials whether for personal or policy reasons, have incentives to increase their power and influence, and regional implementation may run counter to those objectives’.¹

I. Introduction

The Common Market for Eastern and Southern Africa (COMESA), which is a predecessor of the 1981 Preferential Trade Area (PTA) for Eastern and Southern Africa, is one of the regional economic communities (RECs) under the African Union (AU) established as regional pillars towards the formation of the African Economic Community (AEC). The other RECs are the Economic Community of West African States (ECOWAS), the East African Community (EAC), the Economic Community of Central African States (ECCAS), the Southern African Development Community (SADC), the Arab Maghreb Union (UMA), the Community of Sahel-Saharan States (CEN-SAD) and the Intergovernmental Authority on Development (IGAD).

Similar to other African RECs, the main goal of COMESA is to enhance regional integration among the 21 COMESA Member States: Burundi, Comoros, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Swaziland, Tunisia, Uganda, Zambia, and Zimbabwe. COMESA created an enlarged regional market by establishing a common market. To enhance regional integration and trade, Art. 55 of the 1994 COMESA Treaty recognised a need for COMESA to adopt rules to regulate competition in the COMESA common market and ensure that private restraints resulting from firms’ anti-competitive conduct would not hinder trade liberalisation efforts. Generally, competition policy is a regulatory tool that ensures firms participating in a market do not engage in anti-competitive conduct such as predatory pricing, market allocation, or price fixing that hinders effective competition to the detriment of consumers’ choice or product quality. Thus, as national competition agencies (NCA) jurisdiction is limited, it was important for COMESA to establish a regional competition regime to investigate anti-competitive conduct with cross-border effects.

The discussion of a regional competition framework in COMESA began in the late 1990s. At that time, only Kenya, Zambia and Zimbabwe had competition laws and agencies. Nevertheless, Zambia, Zimbabwe, and Kenya NCAs investigated cartel conduct and reviewed mergers involving firms in at least two COMESA countries. For instance, in 1999, Zambia and Zimbabwe NCAs investigated the global Coca-Cola/Cadbury Schweppes merger. Lipimile and Gachuiri provide that ‘in the case of Zimbabwe, the merger was approved with certain conditions, which included partial divestiture and undertakings on the part of the merging parties to develop local beverage brands. In Zambia … the merger was also conditionally approved but with different undertakings’.² Zambia NCA required Coca-Cola to notify its exclusive dealing, restrictive territorial and stop price-fixing agreements. This example shows the potential for NCAs to make conflicting decisions over the same merger transactions. Therefore, establishing an RCA to review mergers affecting more than one COMESA Member State was important to enhance certainty and reduce the potential of conflicting decisions over similar merger transactions. Moreover, although this merger affected Uganda, that country did not have a competition law. Creating an RCA could investigate cartel conduct and review regional mergers affecting countries without competition law.

The COMESA regional competition law was drafted in 2002 and supported by the EU Commission through COMESA. In 2004, the COMESA Council of Ministers adopted the COMESA Competition Regulations (CCR).³ According to Lipimile and Gachuiri, ‘the goal of the CCR was to ‘promote fair competition in order to boost regional trade and investment and to ensure the maximization of consumer welfare in the COMESA region through an effective regional competition framework’.⁴ Thus, a regional competition authority was expected to provide a one-stop-shop, reduce multiple merger notifications at the national level, provide a forum of cooperation among the NCAs, eliminate conflicting decisions, enhance legal certainty and – importantly – enhance trade investment in COMESA by providing a conducive environment for businesses to engage in trade.⁵

The CCC, located in Lilongwe, Malawi, was established under the 2004 CCR to enforce the CCR and investigate mergers, restrictive trade practices, and consumer protection within the COMESA Common Market with a regional dimension. A conduct has a regional dimension if it affects two or more COMESA countries. Any conduct affecting domestic markets falls under the NCA’s jurisdiction. In addition to the CCC, the CCC Board of Commissioners (Board) was established as an adjudicative body to hear appeals made by the CCC and direct the policy of the CCC. CCC began enforcing the CCR on 11th January 2013, focusing on merger regulation. COMESA has a mandatory merger regime. Consequently, all merging parties whose mergers affected more than two COMESA countries were required to file those mergers with CCC.

Immediately after the CCC announced that it had begun receiving merger notifications, some COMESA NCAs explicitly resisted the CCC’s jurisdiction over mergers with an effect within their domestic market, even when they affected more than two COMESA countries.⁶ The Kenyan NCA – Competition Authority of Kenya (CAK) – was the first NCA to contest CCC’s jurisdiction over mergers. CAK argued that without a cooperation framework with the CCC, the CCR had no application in Kenya.⁷ CAK then invoked jurisdiction over mergers falling under CCC’s jurisdiction, leading to jurisdiction conflicts, multiple merger notifications, legal uncertainty, conflicting decisions, legal costs, and increased business costs for the merging firms.⁸ The contestating of CCC’s jurisdiction over mergers threatened CCC’s survival as NCA’s support for CCC is critical for effective enforcement of the CCR. CCC requires the support of NCAs in its investigation and enforcement of its decisions at the national level. Thus, the CCC needed to adopt strategies to enhance bureaucratic cooperation with NCAs.

Strikingly, since 2013, COMESA NCAs have adopted explicit legal, institutional and policy frameworks that support CCC and the application of CCR. For example, in 2019, CAK adopted the Kenya Competition (General) Rules. Rule 8 of the Kenya Competition (General) Rules, 2019, explicitly provides that ‘where a merger meets the threshold prescribed under the COMESA Competition Regulations and Rules, the parties shall notify the COMESA Competition Commission in the prescribed form, and inform the Authority in writing regarding the notification’. This step by CAK clarified the jurisdiction of CCC and reduced regulatory costs for businesses.

Despite the interaction between CCC and COMESA NCAs, no scholarly work has examined what motivates COMESA NCA’s support for CCC or the application of CCR over time. Yet, the bureaucratic relationship between CCC and COMESA NCAs provides a fascinating and informative case study of why national regulatory agencies (NRA) may elect to support a regional institution. This paper, therefore, seeks to examine the conditions under which NCAs are likely to support regional competition regimes (RCR).

This paper argues that if we are to do this, we must first understand the RCA’s institutional design and NCA’s national-level obligations and interests. Institutional designs are not random,⁹ and they have unintended consequences. As established, CCC is a supranational institution. Such an institution is normally established by several state governments with delegated regulatory authority to make binding decisions over a specific policy.¹⁰ Thus, supranational RCRs have a legally binding regional competition law enforced by the established regional competition authority (RCA).¹¹ Normally, when an RCA is established, its jurisdiction is limited to cases with cross-border effects affecting two or more Member States. The NCAs retain regulatory autonomy over cases within their domestic market.

As a domestic actor, an NCA should support the RCA in implementing and enforcing the supranational laws through cooperation and adopting measures that enhance the interpretation and application of the regional competition law in their domestic markets.¹² According to rational choice theoretical assumptions, an NCA official is likely to support an RCA when they accrue certain benefits.¹³ For instance, supranational RCRs address a cooperation problem, such as regulating international cartels and analyzing cross-border mergers.¹⁴ An NCA’s jurisdiction is territorially limited, so it benefits from a supranational RCR because it has the ability to investigate and sanction international cartels that an NCA could not investigate.¹⁵

Nonetheless, there are instances when NCAs are likely to contest the application of a regional competition law and are disincentivized to support an RCA. For example, competition policy is inherently political because it redistributes market power, creating winners and losers.¹⁶ Given the competition policy’s political and economic incentives, enforcing competition law is also susceptible to politicization. If competition policy is inherently political at the national level, establishing a supranational institution to regulate market competition at the supranational level, which would otherwise have been regulated at the national level by NCA, only exacerbates the situation. Furthermore, in a supranational RCR, shifting competition enforcement to an RCA also runs against the NCA’s strong preference to maintain regulatory autonomy.¹⁷ Thus, in some instances, an NCA could be incentivized to protect national interests and sectors of national significance if it conflicts with enforcing regional competition law.¹⁸ This is why scholars such as Townley have called upon the EU Commission to consider diversity and Member States’ preferences in enforcing the EU competition law to increase its legitimacy in the EU enforcement of competition law.¹⁹ This allows NCAs to build their regulatory capacity and capabilities and consider national-specific concerns in enforcing national-level competition law.

To provide an empirical account of why NCAs are more likely to support supranational RCRs, COMESA NCA officials were interviewed to elicit their willingness to support and recognize a supranational competition regime. This paper, therefore, contributes to the literature on international delegation of regulatory authority to supranational institutions, highlighting that an actor will support a supranational institution when the benefits – usually involving a cooperation problem – outweigh the costs.²⁰ This paper also elicits other drivers, beyond the cost-benefit analysis that could influence NCAs’ willingness to support and recognize a supranational competition regime, by interviewing NCA officials. Ultimately, it contributes to a legal and policy framework that will inform bureaucratic cooperation between NRAs and supranational institutions.

In addition to CCC, four African regional economic communities (REC) have established RCAs to regulate competition within the created regional markets.²¹ They are the West African Economic and Monetary Union (WAEMU), Central African Economic and Monetary Union (CEMAC), Economic Community for the West African States (ECOWAS), and the East African Community (EAC).²² In February 2023, African countries also adopted a draft Competition Protocol under the African Continental Free Trade Area (AfCFTA) to ensure that anti-competitive conduct by firms operating in the continental market does not undermine the objectives of the AfCFTA Agreement.²³ The AfCFTA Competition Protocol (CP) has established the AfCFTA Competition Authority to regulate mergers and anti-competitive conduct, such as abuse of dominance.²⁴ Thus, drawing from the CCC and European Union’s (EU) experience, the findings of this study are key in informing the bureaucratic relationship between RCAs and NCAs for the effective enforcement of regional competition law by the emerging supranational RCRs in Africa and beyond. Importantly, due to the lack of prior knowledge of CCC, this study informs future theoretical and empirical work on bureaucratic cooperation between domestic actors and supranational institutions.

The rest of the paper proceeds as follows. The second section conceptualizes support as it applies in this study. The third section explores the literature explaining why and when Member States or national officials support international organizations (IOs) and supranational institutions. From this literature review, I draw my expectations as to when COMESA NCAs are more likely to support CCC and the application of CCR. Section four briefly describes the methodology adopted. Section five discusses the findings of the study, and the last section provides the conclusion.

II. What constitutes NCA’s support for supranational RCR?

The term ‘support’, as used in this paper, encompasses all measures adopted by an NCA to enhance the application and interpretation of regional competition law. In explaining when an NCA supports supranational RCR, I build on the literature linking individual attitudes toward support for supranationalism.²⁵ According to Peitz and others,²⁶ a positive attitude towards supranationalism entails four elements: (1) a willingness to participate in supranational projects; (2) a belief in the proposed problem-solving capacity of supranational governance; (3) a commitment to binding international rules outside of national control; and (4) a desire to see supranational institutions play a greater role in global governance. Therefore, in the context of this paper, a supportive NCA is one that:

• a. Commits to the binding supranational competition laws.

• b. Recognizes the problem-solving capacity of a supranational RCA.

• c. Participates in enforcing regional competition laws.

• d. Desires to see an RCA play a greater role in global governance, and so undertakes legal, policy, institutional, and discursive measures that recognize and support an RCR’s supranationalism.

In most scenarios, NCA’s support towards an RCA, or application of regional competition law, emanates from the treaty obligation placed on the Member States in the REC’s founding Treaty. For instance, Art. 5 of the COMESA Treaty places a general undertaking on COMESA Member States to:

‘Make every effort to plan and direct their development policies with a view to creating conditions favourable for the achievement of the aims of the Common Market and the implementation of the Provisions of this Treaty and shall abstain from any measures likely to jeopardize the achievement of the aims of the Common Market or the implementation of the provisions of this Treaty’.

Furthermore, Art. 5(2) of the COMESA Treaty requires the COMESA Member States to take steps to secure the enactment and continuation of legislation that gives effect to the COMESA Treaty. This means that COMESA Member States shall ratify the COMESA Treaty and adopt legislative processes that grant the COMESA Treaty direct applicability in their domestic legal systems. In legal scholarly work, this process is referred to as domestication. Regarding COMESA Regulations, Art. 5(2, b) of the COMESA Treaty requires COMESA countries ‘to confer upon the regulations of the Council the force of law and the necessary legal effect within its territory’. Thus, COMESA Member States have a treaty obligation to support CCC in the application and interpretation of CCR.

The obligation of COMESA Member States to support the application of CCR at the domestic level is also reflected in Art. 5 of the CCR, which explicitly provides that:

‘Pursuant to Art. 5(2)(b) of the Treaty, Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of these Regulations or resulting from action taken by the Commission under these Regulations. They shall facilitate the achievement of the objects of the Common Market. Member States shall abstain from taking any measure which could jeopardize the attainment of the objectives of these Regulations’.

This study recognizes that while the COMESA Treaty and CCR place the obligation on Member States, in most cases an established RCA engages with an NCA more frequently than Member States. NCAs also have expertise in enforcing competition law, giving NCAs an information advantage over government officials. Thus, NCAs can use their information advantage to convince government officials to fulfil their Treaty obligations. For instance, according to Art. 5(2) of the COMESA Treaty, COMESA Member States are required to adopt legislative initiatives that grant COMESA Regulations direct applicability in their domestic legal systems. An NCA that lobbies its government to adopt legislation that grants CCR direct applicability in the domestic markets is supportive. NCAs, therefore, become critical actors in a supranational RCR’s institution building.

Ordinarily, NCAs support RCAs through cooperation. In competition law, cooperation refers to coordination among national, regional, or international level competition agencies in enforcing competition law.²⁷ Cooperation involves information sharing during investigations; notifying each other of cases of mutual interest; organizing, and participating in capacity-building initiatives or joint studies;²⁸ and can be formal or informal. Although this distinction is usually blurred in practice, formal cooperation involves a written agreement and imposes obligations and commitments on the parties. This has occurred through Memoranda of Understanding (MoUs) between competition agencies. According to OECD/ICN, informal cooperation involves ‘keeping each other informed of the progress of cases of mutual interest, discussions on investigation strategies, exchanges of public information, sharing leads and comparing authorities’ approaches to an issue in a case’.²⁹

Formal and informal cooperation complement each other.³⁰ However, cooperation is voluntary and depends on an NCA’s willingness to cooperate with an RCA. In this case, an NCA may refuse to cooperate with an RCR even if an MoU exists. Thus, an NCA’s willingness to enter into a cooperation agreement with CCC, or informally cooperate with it, illustrates its support for CCC. Cooperation is one of many ways an NCA could support an RCR. By mapping NCAs’ behavioural, institutional, and discursive strategies, one can infer their willingness to support an RCR’s supranationalism. NCAs can support an RCR by providing discursive platforms where an RCR shares information on its enforcement activities with a targeted audience.

It is not wrong for an NCA to contest an RCA’s jurisdiction or application of regional competition laws. Contestation is critical in institution building. An NCA becomes non-supportive when such contestation is not justified and where it is not willing to use the available dispute resolution mechanisms. Such an NCA would refuse to share information or provide investigative assistance to an RCA.

III. Why and when NCAs support a supranational RCR

In estimating when NCAs are likely to support an RCA, I build on the rational choice theory and literature, particularly earlier explanations from the EU,³¹ arguing that the benefits accrued and costs incurred from supranationalism are likely to influence actors’ support for supranational institutions.

1. Accrued benefits from an RCR’s supranationalism

My first expectation builds on the literature on international delegation, which emphasizes that actors will support a supranational institution when the expected benefits (such as solving a collective action problem) outweigh the costs of national-level regulation.³² In this rationalist approach actors are considered instrumentally rational and make decisions based on strategic calculations, maximizing utility.³³ One of the most recognized benefits that has motivated Member States to delegate regulatory authority to supranational RCA is its ability to assess mergers and investigate cartel conduct that transcends national borders, solving a cooperation problem.³⁴ Indeed, expanding domestic and multinational firms in the regional markets have led to a regional scope of anti-competitive conduct and mergers cutting across various African countries, which points to the importance of having an RCR.³⁵ These regional cartels have not only distorted market competition through coordinated arrangements such as price fixing and market sharing, but have also led to increases in commodity prices.³⁶ Unfortunately, African NCAs cannot investigate the regional cartels because their jurisdiction is territorially limited.³⁷

Additionally, when an RCA decides on mergers or anti-competitive conduct affecting two or more countries it leads to legal certainty, reduces conflicting decisions among different NCAs, and eliminates regulatory costs for the firms.³⁸ Ultimately, it enhances regional integration, foreign direct investments, predictability, and business certainty in the region. Thus, NCAs should support an RCA when it reduces transactional costs for firms involved in cross-border mergers.

2. Incurred costs from supranationalism

Increasing scholarly work has shown that individuals could be reluctant to support supranational institutions even when such supranationalism advances their interests, solves a collective action problem, and policy preferences converge.³⁹ Indeed, there is ample literature showing that Member States’ unwillingness to cede sovereignty in practice influences their level of support for the supranational institutions they establish.⁴⁰ As conceptualized by Abbott and Snidal, sovereignty costs could range from ‘simple differences in the outcome on a particular issue, to loss of authority over decision making in an issue-area, to more fundamental encroachment on state sovereignty’.⁴¹

Similarly, in the context of regionalizing competition law, NCA officials incur costs when a supranational RCR is established, which could influence their willingness to support a supranational RCA. Literature has often shown that an NRA’s unwillingness to cede regulatory autonomy influences their support towards the supranational institution.⁴² In the context of RCRs, NCAs would want to exercise their regulatory autonomy over domestic markets without interference.⁴³ This is because regulatory autonomy over the domestic market enables an NCA to build its regulatory capacity, its capability to enforce competition law at the national level, and to elicit national support.⁴⁴

The above observation is more than merely theoretical. For example, the WAEMU’s centralized supranational institutional design, which gives the WAEMU RCR exclusive jurisdiction to regulate competition at the national and regional level, has led some NCAs in the region to contest it or refuse to cooperate with the WAEMU RCA in the enforcement of the WAEMU community competition law.⁴⁵ This relationship is so strained that in investigating competition cases in Senegal, the WAEMU RCA interacts more with the Ministry of Trade, as the Senegal NCA has been reluctant to provide investigative assistance.⁴⁶ In this case, WAEMU NCAs are non-supportive of the WAEMU RCR because it strips them of their regulatory autonomy.

The explanatory power of regulatory autonomy in driving NCA’s willingness to support supranational institutions can also be inferred from the EU’s experience implementing Regulation 17/62.⁴⁷ Regulation 17/62 granted the EU exclusive competence to apply Art. 101(3) of the Treaty on the Functioning of the European Union (TFEU).⁴⁸ Later, it was realized that granting the EU Commission exclusive authority over notifications had resulted in serious substantive and procedural flaws.⁴⁹ According to Brook,⁵⁰ shortly after it was issued, ‘the Commission was flooded with an unmanageably large number of notifications’. Although the EU Commission issued block exemptions, notices, comfort letters and used voluntary commitments, it became burdensome for the EU Commission to assess the notifications.

Consequently, the EU embarked on what has been referred to as the ‘modernization process’ of the EU Competition rules.⁵¹ In 2003, Regulation 1/2003 was adopted, paving the way towards a greater role for EU Member States’ NCAs and courts in enforcing Arts. 81 and 82 of the EU Treaty (now Arts. 101 and 102 of the TFEU).⁵² In broader terms, Regulation 1/2003 ‘modernized the procedural rules which govern how the EU antitrust rules are enforced and introduced a decentralized system of direct applicability of the EU competition rules in their entirety’.⁵³ It replaced the centralized notification and authorization system under Regulation 17/62.⁵⁴ In doing so, the EU Commission relieved itself of an administrative burden and granted the NCAs more regulatory autonomy in their domestic markets.

In 2003, the EU established the European Competition Network (ECN) to provide a platform for cooperation and allocation of cases between the EU Commission and NCA.⁵⁵ This allows EU NCAs to investigate competition cases with a national dimension, minimizing conflicts with the EU Commission. Simply put, NCAs want to maintain regulatory autonomy in investigating competition conduct within their domestic markets. If NCA’s regulatory autonomy is intruded upon they will be disincentivized to support and work with a supranational RCR.

In addition to building regulatory autonomy, NCAs accrue pecuniary benefits from enforcing competition law. Consider an example where NCAs with mandatory merger regimes require merging parties to pay merger filing fees, which are a calculated percentage of the merging firms’ annual turnover in the domestic market. These merger filing fees are a source of revenue for NCAs. Hence, when an RCA assesses mergers affecting a country, the NCA incurs the cost of losing on merger filing fees. NCAs also administer fines to firms that have contravened competition law. Fines are a source of revenue for NCAs and increase the NCA’s credibility and public support in many ways. As an incurred cost, NCA officials could have a strong orientation towards its institutional building and protect its regulatory turf when intruded. Thus, I expect the reduction or loss of pecuniary benefits accrued from the enforcement of national competition law to influence COMESA NCA’s willingness to support CCC or the implementation of CCR. By interviewing CCC and COMESA NCAs, this study seeks to reveal other factors that could drive NCA’s support for supranational RCA.

IV. Methodology

1. Research method

I employed qualitative research methods. The qualitative analysis drew on the extensive literature by legal, political, and international relations scholars on delegating authority to international organizations, supranational institutions, the role of domestic actors and bureaucratic cooperation. This paper also employed an exploratory research design to understand how CCC has enforced the CCR over ten years. Generally, exploratory research design is employed when little is known about a specific subject or the research problem needs to be clearly defined. The exploratory research design was appropriate because we know very little about enforcing the COMESA Competition Regulations.

2. Case selection

This study interrogated COMESA NCA officials’ motivations for supporting the COMESA competition regime.⁵⁶ As CCC is a regional institution within the COMESA REC, the sample frame is drawn from COMESA countries with operational NCAs. Out of the 21 COMESA countries, 13 – the Democratic Republic of Congo (DRC), Egypt, Eswatini, Kenya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Sudan, Tunisia, Zambia, and Zimbabwe – have operational NCAs.⁵⁷ These 13 countries form the sampling frame for the study.⁵⁸ Out of the 13 NCAs that form the sampling frame, the NCAs of Rwanda and the DRC only began enforcing competition laws in late 2021 (the CCC began operating in 2013), and Tunisia joined COMESA in 2019. Therefore, the NCAs of Rwanda, DRC, and Tunisia have been excluded from the sample study because their experience with CCC is brief. Thus, 10 out of the 13 COMESA NCAs form the target population.

3. Data sources

To discern why and when an NCA has supported or contested CCC’s exercise of authority, I used document analysis and interviews as data collection tools in light of my selection criteria. I gathered publicly available information on all COMESA NCA’s interactions with CCC by visiting the NCA’s websites and social media platforms. I analyzed the annual reports and newsletters on the website for information on their interaction with CCC.

In collecting primary data, this study employed in-depth semi-structured interviews with open-ended questions to build on the findings elicited from document analysis. Interview questions were drafted to reflect three thematic areas: forms of support, benefits, and costs associated with supporting CCC and the application of CCR. The choice of open-ended questions was justified for various reasons. According to Aberbach and Rockman,⁵⁹ such questions enable an interviewer to ‘get at the contextual nuance of response and to probe beneath the surface of a response to the reasoning and premises that underlie it’. Aberbach and Rockman⁶⁰ also observe that ‘elites especially – but other highly educated people as well – do not like being put in the straightjacket of close-ended questions. They prefer to articulate their views, explaining why they think what they think’.

On top of that, the interviewer is not bound by specific boundaries in elite interviewing. Rather, as aptly put by Dexter,⁶¹ ‘the investigator is willing and often eager to let the interviewee teach him what the problem, the question, the situation is – to the limits, of course, of the interviewer’s ability to perceive relationships to his basic problem, whatever these may be’. Moreover, in studies with limited prior research to draw clear assumptions, various scholars have advocated using semi and/or unstructured elite interviews with open-ended questions. Crucially, open-ended rather than closed-ended questions are appropriate because this research focuses on a case study that has not been studied before.

Consequently, this study’s interview questions were open-ended, their order was flexible, and different questions were drafted for different elites informed by their interaction with CCC over time. The interview questions ranged from ground tour to structural questions, all seeking to elicit what motivates NCAs to support a supranational RCR. For instance, the first question I asked the NCA officials was: what has been your interaction with CCC so far? This question allowed the NCAs to provide information on how they interacted with CCC, eliciting information on specific forms of support or backlash. The second question focused on identifying NCA’s motivation towards support or backlash, answering the why question.

4. Data collection procedure

The interviews took place between August 2022 and March 2023. After document analysis, I visited the CCC for a three-month research stay, where I gathered information on the CCC’s interactions with NCAs over time. I sought to find out how COMESA NCAs have supported the application and interpretation of CCR, and what role CCC has played in incentivizing NCA’s support and addressing conflicts between CCC and NCAs. Indeed, after my interaction with CCC, I learned that several COMESA NCAs – Malawi, Zambia, Mauritius, Seychelles, Kenya, Eswatini and Zimbabwe – with the support of CCC, had lobbied or initiated legislative processes to grant CCR applicability in the domestic legal system.⁶² In 2017, only the Eswatini NCA successfully pushed for the domestication of CCR⁶³ (meaning CCR now has direct application in Eswatini’s domestic legal system).

The research stay at CCC formed the starting point of my fieldwork at the national level. Subsequently, during my research stay at CCC, I requested CCC to introduce me to the COMESA NCA officials, particularly those I had not interacted with. CCC wrote introductory letters to the targeted NCAs, and I received responses from Kenya, Zambia, Zimbabwe, Eswatini, Mauritius, and Malawi NCAs. Due to limited funding and time, I reduced my target population from the initial 10 NCAs to the six NCAs in Kenya, Zambia, Zimbabwe, Eswatini, Mauritius and Malawi. I conducted face-to-face interviews with the Malawi and Kenya NCA officials and online interviews with the rest. Although I had included Egypt, Sudan, Ethiopia, Seychelles, and Madagascar in the case selection, they are not part of the analysis. At the time I started fieldwork, Ethiopia had disbanded its NCA. Although the NCA had accepted my request for an interview in Egypt, scheduling the interview date became difficult.

Importantly, this study complied with all ethical considerations during the interviews. Due to the sensitivity of the data collected, consent from all the NCA and CCC officials to have interviews and share their statements was obtained. Recorded interviews were deleted after transcription. The information provided off the record is not part of the analysis.

5. Limitation

The case selection is limited in several ways due to funding and time limitations. I was only able to travel to Kenya and Malawi. Thus, I held face-to-face interviews with the CCC, CAK, and Malawi CFTC staff. In the remaining countries, I scheduled online interviews. I held online interviews with NCAs in Zambia, Eswatini, and Zimbabwe. Research stays at CCC, Malawi NCA, and Kenya NCAs enabled me to interact with the staff and interview staff from different departments, unlike in countries where I held online interviews. In the Kenyan NCA and CCC I had the opportunity to talk to individuals who handled specific cases and access specific documents. Case handlers had more information on specific cases because they actively participated in addressing the challenges. For instance, I interviewed the Managing Director of Kenya’s Merger and Acquisitions department. This enabled me to get his opinion regarding the jurisdictional conflicts between CAK and CCC in merger regulation and the process that led to harmonizing the COMESA merger thresholds in Kenya in 2019. His views complemented those of the Executive Director. Nevertheless, all the interviews sought to understand how NCA institutions have interacted with COMESA RCR over time, not individual attitudes. In some cases, although some information was very critical in explaining when NCAs are unlikely to support an RCA, this information was off the record and was thus not part of the analysis.

V. Why and when do COMESA NCAs support the COMESA RCR?

In 2013, when CCC became operational, some COMESA NCAs contested CCC’s jurisdiction over merger transactions. Although CCC does not provide public information on which NCAs dissented from its exclusive jurisdiction, Kekesi points out that Kenya, Egypt, Ethiopia, Zambia, and Zimbabwe NCAs disagreed with CCC’s authority over certain cross-border mergers.⁶⁴ At one point, they made their positions known through public oral statements, posting notices, or guidelines on the NCA’s websites requesting national filings despite a similar notification at the CCC.⁶⁵ This study found that COMESA NCAs currently have a positive attitude towards the COMESA RCR and are willing to support CCC in enforcing CCR.

Consequently, COMESA NCAs have taken national-level initiatives to support the application and interpretation of CCR. For instance, with the support of the CCC, COMESA NCAs have initiated legislative initiatives that seek to harmonize the CCR with national competition law. In particular, ten NCAs – Comoros, Djibouti, DRC, Eswatini, Madagascar, Malawi, Mauritius, Seychelles, Zambia, and Zimbabwe – were in the process of reviewing their competition laws to harmonize them with CCR. The Zambia NCA had annexed the CCR on the Zambian Competition Bill.⁶⁶ Once Parliament approves, CCR will become part of the Zambian domestic legal system.

With the support of CCC, Eswatini, Malawi, Zambia, and Zimbabwe have lobbied or initiated legislative processes to grant CCR applicability in the domestic legal system. In 2017, only the Eswatini NCA successfully pushed for the domestication of CCR in Eswatini.⁶⁷ Thus, CCR has direct application in Eswatini’s domestic legal system. Although Zambia, Malawi, and Zimbabwe NCAs have yet to successfully push for the domestication of CCR, they show willingness to support CCC.

Most COMESA NCAs have also engaged in discursive strategies through training and workshops to educate the public and especially judges and lawyers, on applying the 2004 COMESA Competition Regulations. These strategies include inviting CCC officials to workshops held at the national level to discuss the implementation of CCR. For instance, Malawi NCA has held a judges’ colloquium where the application of CCR was discussed to incentivize judges to push for the domestication of COMESA Treaty and CCR. Kenyan NCA has always invited a CCC presence to its annual competition symposium to provide CCC with a platform to elucidate the application of CCR. These interactions show that COMESA NCAs want to see CCC play a great role in enforcing competition law within the COMESA Market.

How can we explain why COMESA NCAs supported CCC when some of the COMESA NCAs had, during the earlier operation of CCC, contested the application of CCR in their domestic legal system? The drivers influencing the COMESA NCAs officials’ support for COMESA RCR, as elicited from the interviews, are summarised in Table 1 above:

1. Benefits accrued from the enforcement of CCR

The COMESA NCAs noted that they support CCC because they benefit from the COMESA RCR, as discussed below.

a) CCC investigates conduct beyond national borders

All the COMESA NCA officials interviewed support CCC because it is the most appropriate institution to investigate conduct that transcends national borders. They noted that their jurisdiction is limited when competition cases have cross-border effects. They thus recognize the problem-solving capacity that CCC provides. According to an official from the Zambia NCA:

‘The necessity emanates from the fact that in terms of our law, our law is very clear that jurisdiction is within Zambia. And anything that involves Zambia, even by entities that are outside Zambia but have an effect in Zambia. … But the challenge there lies in that they could be entities that have an effect in Zambia but violate issues not necessarily affecting Zambia but affecting other jurisdictions. So, by their presence in Zambia either through sales or subsidiaries, even when their conduct may not necessarily have an effect in Zambia but having an effect in the other countries, we see it very convenient to have a regional authority that can then actually look at those issues before they spill over into our jurisdiction. So, the cross-border relationship and enforcement … made it necessary for us to interact with the Authority, and also saw it as a welcome move’.⁶⁸ (Emphasis added)

The Malawi NCA officials also stated that:

‘So, most of the laws we have in our countries they are just restricted to the country. They are national. The jurisdiction is strictly in your country. So, it is difficult to investigate an anti-competitive conduct that happened in another country. But when you have like a regional body, then it becomes important, because they have jurisdiction over two or more states. So that is it’.⁶⁹

Secondly, related to territorial limitation, the COMESA NCA officials are also motivated to support the CCC because, unlike the NCAs, the CCC has the authority and capacity to investigate firms’ conduct originating within and outside Africa on behalf of the NCAs. This is because NCA’s resources are limited, particularly when investigating cross-border conduct. On the other hand. COMESA NCAs argued that CCC has the resources, authority, and capacity to do so, as noted by an Eswatini NCA official:

‘Because, for some countries like ours, you find that most of the countries in Africa have financial challenges. … And issues of capacity such that it would not be possible for them to take certain mergers or conduct investigations on certain matters which are critical and which affect not just one jurisdiction but other jurisdictions as well. There comes the need for a regional body which is going to be able to look into the interests of the region because some of the issues may not necessarily emanate from the region itself but coming from, you know, outside the region. … So it is easier if it is done by a regional body as opposed to each jurisdiction’.⁷⁰

An official of the Zimbabwe NCA also noted that:⁷¹

‘There are some kinds of anti-competitive practices that come from outside Africa … these kinds of things affect all countries in Africa. And for us to solve those kinds of problems on an individual basis, you know we don’t have the resources, even the muscle to do it, and you would need COMESA, for example, to come into the picture’.⁷²

The Zimbabwe NCA official elucidated that a good example is the Confédération African de Football (CAF) case investigated by CCC in 2017 (CCC 2021).⁷³ CAF is a non-governmental international organization with its own legal persona and the governing body of football in Africa. CAF has the exclusive rights to organize all African championships, such as the Africa Cup of Nations, and has offices in the Egyptian capital Cairo. In this case, CAF had entered into an exclusive agreement with Sportfive to commercialize CAF’s media and marketing rights. According to the Zimbabwe NCA official, in this case, while the CAF had no offices in Zimbabwe, its anti-competitive conduct affected the country. In explaining its incapacity to investigate the CAF case, Zimbabwe NCA officials noted that:

‘All we receive is the signal. And even if we investigate that case, we don’t even know where we are going to start from. But COMESA now has got that capacity because at least CAF is in Egypt. You know they managed to do the investigation on our behalf, which is something that is commendable and which is good. … I believe that this is one area in which we actually benefited’.⁷⁴ (Emphasis added)

In conclusion, all the COMESA NCAs recognize and support a supranational RCR because of its capacity to investigate conduct that transcends national borders when the NCA’s jurisdiction is limited. Secondly, the NCAs have limited capacity and resources to investigate conduct beyond their borders. The COMESA NCAs are then motivated to support CCC because it fills this gap by investigating the conduct on behalf of the NCAs. This is because when the CCC decides on anti-competitive conduct, it applies to all the COMESA countries affected by the conduct. Thus, to incentivize NCAs’ support, an RCA should investigate conduct beyond domestic markets.

b) COMESA RCR reduces transactional costs for business firms

I expected the COMESA NCAs to support COMESA RCR because, as a one-stop-shop, it provides efficient decision-making over cross-border cases, reducing transaction costs for business firms. All COMESA NCA officials affirmed this expectation. Indeed, CCC has reduced business costs by reducing multiple merger notifications. This has motivated NCAs to work with CCC. As noted by the Zambia NCA official:

‘The cost of doing business is one of the issues that the Commission continues to want to reduce as an Authority. … So you would find that with a regional authority being there, a single notification to a regional authority was curing, in our view, our cry. That you see, this entity notifies in one country, and they also have to notify in another, and the cost of doing business were being escalated. As an Authority, we also deem this interaction very necessary’.⁷⁵

Kenya provides a good example of CCC’s ability to reduce transactional costs, positively influencing COMESA NCA’s support for CCC. Remember, the Kenyan NCA publicly contested the application of CCR in Kenya and asked merging parties to file all mergers notifiable in Kenya with the Kenyan NCA. This led to parallel jurisdictions as merging parties had to file with CCC and the Kenyan NCA, which resulted in increased business costs, conflicting decisions, and legal uncertainty for the business community. In 2019, the Kenyan NCA adopted Merger Regulations that recognize the jurisdiction of CCC and require merging parties not to file mergers meeting the COMESA notification requirements with CCC the Kenyan NCA.

Section 2(1) of Kenya 2019 Merger Guidelines states that its main objective is to ‘improve transparency, predictability, and accountability regarding the Authority’s merger enforcement process for the benefit of the business community and thereby easing the cost of doing business and improving the investment climate’. Furthermore, Sec. 2(2)(d) of the Guidelines explicitly provides that its objective is to provide clarity on the transactions notifiable to the Kenyan NCA and CCC. This implies that providing clarity on the CCC’s and the Kenyan NCA’s jurisdiction was very important in reducing business costs and attracting investment in Kenya. Thus, Francis Kariuki, the former Kenyan NCA Director General, noted that ‘CCC’s enforcement activities align with Kenya’s development agenda, so it was appropriate that Kenya recognize the COMESA merger regime through legislation’.⁷⁶ This finding backs the functionalist argument based on efficiency gains and that actors are likely to support integration when transaction costs are reduced.⁷⁷

COMESA NCAs also noted that lower merger filing fees reduced business transactional costs. COMESA merger filing fees were initially high at 0.05% of the merging parties’ turnover. The merger filing fees became a cost to businesses, and NCAs, such as Kenya, came out publicly to contest the higher merger filing fees as they derailed investment. Kariuki noted that:

‘Then the other tension which came is in regard to the filing fees. Kenya was raising a national strategic question. But most of the mergers within COMESA they normally come from our companies. Or they have a dimension towards the Kenyan economy. The moment you start charging such filing fees is that you are curtailing investment, which you think is good. Which you are saying that the law is supposed to support’.⁷⁸

To address the above challenge and invoke NCAs and business support, in 2015, COMESA reduced its merger filing fees from 0.05 to 0.01% of the merging parties’ combined turnover. The COMESA NCAs highly welcomed this move. In conclusion, COMESA NCAs support CCC when enforcing CCR, which reduces transaction costs for businesses, especially domestic firms seeking to expand in the regional market.

Thus, it is clear from the COMESA NCAs’ responses that the ability of CCC to reduce transactional costs for businesses by providing a one-stop shop facilitates trade (a shared interest for CCC and NCAs). NCAs will be disincentivised to support an RCA if its rules, such as higher merger filings, hinder the ability of a business to operate and expand in the market. An RCA should, therefore, provide a conducive environment for businesses to prosper by ensuring that its rules and legislations enhance legal certainty, transparency and predictability, and do not make it burdensome for businesses to invest.

c) Access to information from other Member States

Generally, no NCA is likely to be able to get the requisite information to engage in an effective enforcement action against a cartel outside their jurisdiction. They might not even be able to get the information they need to detect it without the cooperation of their counterparts in other countries. Some COMESA NCAs, such as the Malawi NCA, provided that when the CCC investigates cross-border conduct the NCAs access information from other Member States which the NCAs could not get independently. The NCAs can then use the information gathered by CCC to initiate an investigation at the national level. Of course, As noted by the Malawi NCA official:

‘Yes, the same way it helps because if a regional body is the one that is assessing the merger, it is easy to collect information from various competition authorities because they have like mandate. But when you are just assessing the merger, in a national, like in your State, the information may be limited. The information may be limited in terms of, like, for example, if you have to request information from other Member States. It will just depend on how they will cooperate. You can’t get the full information that you may need in the merger. But when there is a regional body, it becomes easier because they can collect information from the Member States because they have the mandate … the Member States … provide that kind of information’.⁷⁹ (Emphasis added)

In agreement with the Malawi NCA, NCA information gathering is limited to its territorial jurisdiction. Even when NCAs collect information at the national level, they enjoy the discretion to share it with another NCA, considering the information’s confidentiality. Although NCAs may be reluctant to share domestic-level information with other NCAs, they must cooperate with an RCA by providing investigative assistance through information sharing. RCAs therefore require NCAs to share with them specific information during investigations through MoUs. As most of the COMESA NCAs indicated, it is easy for an NCA to cooperate with an RCA and share information with an RCA rather than provide the same information to an NCA. This is because COMESA NCAs are obligated to cooperate with CCC as provided for under the CCR and the MoUs. On the other hand, CCC also have to inform COMESA NCAs if they are affected by the conduct under investigation.

Moreover, once an RCA concludes the investigation, it shares the public version of any evidence that informed its decision. Other NCAs can therefore access this information, which they would have needed help to do. This information helps the NCA monitor whether the cartel conduct or merger in question also affects their market, or whether they should monitor any conduct in their domestic markets. Thus, the ability of an RCA to access national-level information to inform investigations in other countries was mentioned as a key driver in supporting CCC by some COMESA NCAs.

d) Technical assistance from CCC

COMESA NCAs also noted CCC’s support as a key driving force in enhancing their support of the COMESA RCR. CCC supports the NCA in many ways, including with technical assistance and capacity building. In particular, CCC provides financial support to COMESA NCA’s officials to attend capacity-building workshops and conferences. The Zimbabwean NCA official noted this:

‘Maybe, before I come into it, I think I have another issue in terms of the benefits. The good progression or the good relationship that we have and we aim. We are able to get even assistance, you know, technical support. At times, they are able to fund some of our projects. And we are able to consult’.⁸⁰

Additionally, the Eswatini NCA noted that CCC’s support has positively influenced NCA’s support for CCC, as stated below:

‘And I think the constant advocacy and engagement of the CCC and making themselves visible, explaining their mandate, and how they have cooperated and interacted with the NCAs. And you know, showing support and capacitating the national competition authorities. …Even for those that didn’t have competition legislation. They have advocated for those Member States. They have supported even financially, in terms of capacity building to ensure they have effective legislation regimes’.⁸¹

Indeed, CCC has provided technical and financial support to COMESA NCAs, such as Malawi, Eswatini, Zambia, Mauritius, Seychelles and Zimbabwe, to review their laws. During these legislative reviews, we observe COMESA NCAs harmonizing their competition laws with CCR. For instance, in the ongoing legislative initiatives, COMESA NCAs are pushing for the inclusion of provisions recognizing the application of CCR or the NCA’s obligation to cooperate with CCC.

All the COMESA NCAs have benefited from CCC’s technical and capacity-building assistance. For instance, CCC and Kenyan NCA have collaborated and organized conferences to provide CAK and CCC visibility. When CCC receives external funding and support, it uses the funds to support NCAs. Resource-constrained NCAs have benefited from the funding as CCC also supports their staff in attending international conferences. It is critical for an RCA to provide support to NCAs and incentivize their support and understanding of regional competition law.

2. Incurred costs

On the question relating to whether COMESA NCAs have incurred any costs that could affect their willingness to work with CCC or comply with CCR, in tandem with my expectations, the two costs COMESA NCAs have incurred or were afraid they could incur since CCC began enforcing CCR were a loss of regulatory autonomy in merger regulation and a reduction in merger filing fees received at the NCA level.

a) Loss of regulatory autonomy

The issue relating to regulatory autonomy was pertinent in those COMESA countries – for example, Kenya, Zambia, and Zimbabwe – that had mandatory merger regimes when CCC became operational in 2013 because their regulatory turf was affected by the COMESA merger regime. The reason is that the COMESA merger regime is mandatory. Hence, all merging parties had to file mergers with CCC if they involved two or more COMESA countries and met the merger thresholds. In the absence of such notification, and in accordance with Art. 24(2) of CCR, if parties fail to file a notifiable merger then it has no legal effect. In particular, Art. 24(2) of CCR reads as follows, ‘Any notifiable merger carried out in contravention of this part shall have no legal effect and no rights and obligations imposed on the participating parties by an agreement in respect of the merger shall be legally enforceable in the Common Market’.

Secondly, CCC’s merger regime started with zero merger thresholds. Article 23(5) of CCR required the CCC Board, subject to the Council’s approval, to ‘describe a threshold of combined annual turnover or assets in the region, either in general or in relation to specific industries, at or above’ which the CCR would apply regarding mergers meeting regional dimension. However, when CCC became operational in 2013, the CCC Board of Commissioners had not adopted the merger thresholds. Consequently, the COMESA zero-merger threshold allowed CCC to review all mergers affecting two or more COMESA Member States, irrespective of the turnover generated within the local market.

The zero-merger threshold, therefore, blurred the distribution of competencies between the NCAs and the CCC. Further, it gave CCC regulatory authority over mergers that NCAs could have assessed because they disproportionately reduced competition within the domestic market or affected a sector critical to a Member State’s economic development. It also confused the business community and legal practitioners about the most appropriate institution to file mergers. As Stargard succinctly elaborated, ‘it is no secret that many private practitioners follow the rule that, in the absence of clarity and meaningful thresholds, COMESA simply constitutes “no-go territory” for merging firms’.⁸²

Some COMESA NCAs invoked parallel jurisdiction over mergers falling under CCC’s jurisdiction to protect their regulatory turf.⁸³ For example, the Kenyan NCA publicly contested the application of CCR and requested merging parties to file with the Kenyan NCA any mergers that met the Kenyan notification, irrespective of whether that merger met the COMESA merger notification requirement.⁸⁴ The previous Kenyan NCA Director General, Francis Kariuki, stated that, at that time, the Kenyan Parliament had not denoted to the Kenyan NCA the power to exempt mergers falling under CCC’s jurisdiction from the Kenyan NCA’s assessment. In particular, Kariuki stated that:

‘COMESA, I think, in January 2013, declared that they are becoming a one-stop shop…we have a law governing how we need to arrange our competition matters here. That law had not been amended so that it could tell me that I should donate some of the powers to COMESA or any other agency. And I will give you, for example, the case of mergers. The mergers, the law says that the Authority shall determine all mergers. It did not tell me whether I can exempt any merger. So, my country had donated these powers to me. It had not created any provision that I should donate or relinquish these powers to another body. So that is where the tension was coming’.⁸⁵ (Emphasis added)

From the above statement, it is clear that support for CCC from the Kenyan NCA was hinged on regulatory autonomy in investigating conduct that affected the Kenyan market. Zambian officials were also very particular that regulatory autonomy was very critical in their interaction with CCC, especially in deciding to grant CCR direct applicability in Zambia’s domestic legal system through the domestication process, as noted below:

‘And domestication of the Rules also involved the Ministry of Justice to be able to see that in as much as we are going to domesticate these Rules, we are able not to suffocate the powers that an authority such as ourselves and the actual piece of law that exists cannot basically be swept. … So the discussion were for the win to win situation, in the sense that we needed to know and we needed to agree when certain issues that were of contention. I may not speak what was of contention but among them was to ensure … that the autonomy of the national authority in as it relates to the interests of competition, and to a larger extent of consumer protection as well, are not swallowed by us committing to the rules. … I must say, there are issues of sovereignty as well. So, they looked at all those issues as well … currently we can go ahead and domesticate because there is nothing that will, in their current form that will basically take the autonomy of the competition law from Zambia’.⁸⁶ (Emphasis added)

Thus, in the earlier years of CCC’s operations, it was clear that regulatory autonomy was a critical consideration for COMESA NCAs. The zero merger thresholds, however, made it difficult to delineate the power between CCC and COMESA NCAs. Accordingly, to invoke COMESA NCA’s support, and through lengthy negotiations between CCC and NCAs, COMESA introduced a quantifiable merger threshold in 2015, clearly delineating CCC’s scope of authority and granting NCAs more autonomy in their domestic markets. For instance, when each merging party to a transnational merger achieves at least two-thirds of its aggregate turnover or assets within the same Member State, an NCA reviews that specific merger irrespective of whether it meets the regional dimension test.⁸⁷ Moreover, firms can only notify a merger to the CCC if the acquiring and target firms’ annual turnover or combined value of assets in the COMESA Common Market, whichever is higher, equals or exceeds COM$ 50 million.

The COMESA NCA officials noted that introducing the merger thresholds increased their support towards CCC because it gave them the power to assess mergers having a local nexus.⁸⁸ Currently, all the COMESA NCAs do not consider the allocation of power between the NCA and CCC as a source of backlash, as it is clear. For example, the Mauritius NCA provided that ‘we do not believe that support to CCC jeopardizes our autonomy. Our respective regulatory purviews are quite different. One deals with national matters, the other deals with supranational matters’.⁸⁹ Furthermore, the introduction of merger thresholds incentivized the Kenyan NCA to incorporate COMESA’s merger thresholds into the Kenyan merger regime.⁹⁰ Zambia NCA has indicated on its website that COMESA mergers are not notifiable in Zambia.

Nevertheless, even when COMESA introduced merger thresholds in 2015, NCAs still wanted to maintain regulatory autonomy over mergers having a local nexus, even when the merger meets the COMESA merger threshold. One of the mergers that led to conflicting decisions from CCC and CAK is the 2019 case involving Airtel Networks Kenya Limited versus Telkom Kenya Limited.⁹¹ In this, Airtel and Telkom sought to integrate their mobile, enterprise, and carrier services businesses in Kenya to operate under Airtel. In this case, Airtel operated in DRC, Kenya, Madagascar, Malawi, Rwanda, Seychelles, Uganda and Zambia. However, Telkom was active only in Kenya. CCC approved this merger in 2019 without conditions. Kenya approved it with conditions because CAK was of the view that it was a Kenyan issue. In his interview, the then CAK DG argued that:

‘We have a Telkom merger. That we determined just the other day. We requested COMESA to wait for CAK to finalise the merger. COMESA went ahead and determined that merger within in 40 days and approved with no conditions. … Because Airtel has presence across COMESA countries. While the company which is being procured is Kenya alone. … So, from the word go it was a Kenyan issue…. Now, we have come up with a decision which is contradicting the COMESA. … Yes, ours was conditional. In fact it has conditions. … What we are claiming is that we are the best people who can deal with it’.⁹² (Emphasis added)

Regulatory autonomy, therefore, is a cost that could negatively affect NCA’s support for supranational RCAs. Hence, RCAs must limit their scope to matters that have a community dimension and avoid intruding into NCA’s regulatory turf if they are to invoke NCA’s support. Supranational RCAs, should, as Townley argues,⁹³ consider national-level preferences and interests if they are to increase their legitimacy and avoid conflicts with NRAs.

b) The loss in merger filing fees

Another cost that most NCAs mentioned was the reduction in merger filing fees received at the NCA level, which is a source of revenue. The more an NCA assesses mergers within its domestic markets, the more filing fees they accrue. When CCC assesses mergers that affect a certain country because they also affect other COMESA countries, the fees the NCA accrues from the specific merger are reduced. For instance, in 2015, the Malawian NCA provided in its annual report that it was not in a position to raise the required revenue due to a ‘change in fee structure according to the new rules of the COMESA Competition and reduced transactions on mergers and acquisitions filed with the Commission’.⁹⁴

In 2012, COMESA adopted the COMESA Rules on Revenue Sharing Merger Filing Fees to address this challenge and ensure equitable redistribution. Furthermore, it could compensate NCAs who lost merger filing fees when CCC assessed a merger affecting the domestic markets but falling under the jurisdiction of CCC. Accordingly, CCC retains 50% of the Common Market merger fees and distributes the remaining 50% among the relevant NCAs proportional to the turnover value in each Member State relative to the total turnover in the Common Market.⁹⁵

Some NCAs argued that the merger sharing formula is biased towards CCC as CCC takes 50% of the merger filing fees. Moreover, some countries benefit from the merger-sharing revenue formula more than others. Smaller countries receive a smaller share of the merger filing revenue because most firms do not do business in those countries. Consequently, sharing the merger revenue filing fees with bigger countries only reduces what the smaller countries would have received if they had assessed the merger as noted by one NCA:

‘And I think the other thing is the disadvantage for us. … You find that those companies fined, they do not necessarily do much business in our country. So, you find that ours is less compared to may be some of other jurisdictions. Because the sharing as opposed to when the companies would notify directly as we don’t have to share that notification fee. But now, when you now put it at the COMESA level, where already 50% is taken by CCC. When you are sharing the rest, even that is aggregated to the different Member States. … If they were to be notified here, they will obviously pay, the maximum notifications fees. But now when they have to notify with COMESA, like what I mentioned before, revenue sharing, then the allocation obviously you find you end up not getting much. Maybe that would be the downside of this’. (Anonymised).

Nevertheless, even though there is a consensus among COMESA NCAs that they receive less merger filing fees than when they had assessed the merger, unlike the loss of regulatory autonomy, the reduction in merger filing fees does not negatively affect their willingness to support CCC. Chilufya Sampa, the former Executive Director of Zambia NCA, noted that Zambia lost on merger filing fees, but this did not mean they resisted CCC. He stated that:

‘In fact … what you will notice is that the Zambia merger filing fees is higher than the COMESA merger fees. So if we had insisted, or we insist on someone filing with the Zambian Authority, we will actually receive more money than when a merger has been filed through COMESA’.⁹⁶

This was also affirmed by the Zambia NCA official who noted that as Zambia NCA, they look at the bigger picture and not the loss incurred:

‘We have never shown unwillingness to interact with them. For a simple reason. We always looked at the bigger picture. … Sometimes, you would have criping mergers. Those criping mergers … may not in the initial stages look to be an issue, and you want to turn a blind eye and say maybe I am unwilling to collaborate with you. Then you come and find yourself in a scenario where the animal has been created much bigger in your jurisdiction because we are unwilling to participate. So, we are quite cautious when we are moving with discussions with COMESA. There has never been an instance where we have failed to collaborate unless there is something … did indicate to you, and then maybe I can speak to it because it’s a particular issue’.⁹⁷

In sum, despite the costs incurred, the COMESA NCAs have a positive attitude towards CCC’s supranationalism. They would like to see the CCC play a great role in regulating mergers, cartel conduct, and consumer protection in the region, as aptly noted by an Eswatini NCA official:

‘Coz I think for some of the Member States it was the issue of the fear of COMESA taking away their jurisdiction in terms of, you know the cases that they as nationals, you know, had the jurisdiction over. … For some, it was the issue of taking away merger notification fees which for most jurisdictions becomes a necessary revenue. But I think, there has been a realization that CCC is not necessarily here to take away our powers. It is here to support us and to look into the broader aspect of things. You know. And if we are working together, as at the end of the day, as a region, we are going to benefit’.⁹⁸

Some NCAs noted they can trade off their incurred costs with CCC’s support. This observation implies that RCAs must adopt a fair redistribution mechanism that is likely to invoke NCA’s support when NCAs incur pecuniary costs at the domestic level.

3. Beyond cost-benefit analysis

As noted earlier, this study also sought to elicit drivers influencing COMESA NCAs to support CCC beyond the rational approach, focusing on the cost-benefit analysis. In this section, I briefly discuss additional reasons COMESA NCAs noted that motivate them to support the COMESA RCR.

a) Treaty obligation

All the COMESA NCA officials noted that they have a Treaty obligation to ensure that the implementation of the CCR works. In simple terms, COMESA NCAs are committed to the binding supranational competition law.⁹⁹ The Eswatini NCA official particularly noted that it had pushed for the domestication of CCR because Eswatini, as a Member of COMESA, has a Treaty obligation as required under Art. 5 of the COMESA Treaty to adopt measures that support the implementation of COMESA Treaty and its Regulations as noted below:

‘So, I think for us our country has recognized the obligations. Its obligations emanated from the Treaty in terms of enacting the relevant laws to achieve the protection and promotion of competition, as well as the fact that we had already signed the treaty. So, somehow, it created that obligation for us to recognize the Regulations. Because when you look at Art. 5 of the Treaty it speaks of Member States taking the necessary steps to ensure the enactment of such legislation that is going to give effect to the Treaty and, in particular, to confer the Regulations, of which include CCC regulations, the force of law, and to have a legal effect within the Country’.¹⁰⁰

This observation implies that some NCAs will support enforcing regional competition laws because it is a Treaty obligation. This is also reflected in the observation that COMESA NCAs have supported CCC through cooperation because they see this as an obligation under their MoUs with CCC. Therefore, supranational and international institutions need to bring the obligations of national regulatory agencies under the founding treaties to the attention of national regulatory agencies to invoke compliance.

b) MOU between COMESA NCAs and CCC

COMESA NCAs have also supported CCC’s supranationalism through cooperation. Currently, CCC has entered into MoUs with all COMESA NCAs.¹⁰¹ In countries without NCAs, such as Ethiopia and Burundi, CCC has entered into MoUs with ministries responsible for Trade.¹⁰² Kenya and Zambia have gone further and entered into second MoUs with CCC. Thus, NCAs have supported CCC’s supranationalism through formal cooperation. COMESA NCA officials noted that the MoU they have with CCC provides the foundation upon which NCAs interact with CCC, especially when providing investigative assistance. As noted by the Zambian NCA:

‘Okay, despite the domestication not taking place yet, we have had the memorandum of understanding that is mainly based on information sharing, capacity-building initiatives and cooperation in the investigations. So what happens is that whenever there is an issue either issues that might have jurisdiction in Zambia, they write to us. And if it is specific, they ask us for information. And one thing we do is that we obtain the information on their behalf. Then we assess this information for confidentiality. If it’s a past case for example and its confidential, we inform them that this is confidential so that they can … for their appreciation but they cant refer to it in their investigations’.

Consequently, most COMESA NCAs provide investigative assistance and information sharing to CCC because the MoU obligates them to support CCC. For example, the Egyptian NCA was the first NCA in COMESA to bring to the attention of the CCC the anti-competitive conduct of the Confederation of African Football (CAF) after a national investigation.¹⁰³ The Egyptian NCA’s cooperation was very important to CCC because it led to the first anti-trust case initiated by CCC. The MoUs between CCC and NCAs have driven the legislative initiatives at the national levels in Zambia, Kenya, Mauritius, Madagascar, Zimbabwe, and Eswatini, among others. According to Mwemba,¹⁰⁴ the MoUs between CCC and NCAs have achieved their purpose and increased NCA’s willingness to support CCC. Therefore, MoUs between CCC and NCAs are a critical tool that facilitates cooperation between CCC and NCAs and drives NCAs’ support for the COMESA RCR. While it is voluntary, existing RCAs should endeavour to have MoUs with NCAs to facilitate cooperation and invoke support for the regional competition regimes.

c) Merger referral mechanism

Even when the merger thresholds have clarified the delineation of power between CCC and COMESA NCA, it is clear that an NCA’s incentive to retain its regulatory power over certain competition cases that fall within the jurisdiction of an RCA is inescapable. There are instances when COMESA NCAs prefer to retain their regulatory autonomy to fully assess a merger even when it is notifiable to the CCC and not the NCA. However, COMESA NCA officials noted that when such a conflict arises, there are several methods that the CCC has adopted to neutralize the conflicts, such as the merger referral mechanism. Referral of cases from CCC to NCAs only happens in merger regulation and is provided for under Art. 24(8) of the CCR and reads as follows:

‘A Member State, having attained knowledge of a merger notification submitted to the Commission, may request the Commission to refer the merger for consideration under the Member State’s national competition law if the Member State is satisfied that the merger, if carried out, is likely to disproportionately reduce competition to a material extent in the Member State or any part of the Member State’.

When an NCA asks CCC to refer a merger to the NCA, according to Art. 24(9) of CCR, CCC has two options: either it can inform the NCA that it will deal with the case itself to maintain or restore effective competition in the market concerned and the region as a whole; or it can refer a whole or part of the case to the competent NCA. Generally, referrals have happened in three ways. First, the NCAs request that the CCC refer cases filed at the CCC back to the NCAs in accordance with Art. 24(9) of CCR. Second, the NCAs refer cases filed at the NCA level to CCC.

Third, CCC refers to merger cases filed at CCC by firms back to the NCAs when it considers the NCA the best-placed institution. This often happens when firms file merger cases with the wrong institution due to limited knowledge. For instance, a firm could file a merger with CCC because it affects two or more COMESA countries but is below the COMESA merger threshold. Such a merger would fall under a specific NCA. In this case, CCC refers the merger to the relevant NCA for assessment, as aptly noted by the Malawi NCA official:

‘Yes, we have had such kind of referrals. … But there is one they recently referred to us because it was not meeting their turnover threshold, the 50 million. So that one was pushed to us. … And there was one which we also thought could be sorted on their side. So, we referred to them. And they referred it back to us because it did not meet their threshold. So, it happens’.¹⁰⁵

The explanatory power of the merger referral mechanism to drive NCA’s support for RCAs is not theoretical. Consider the following example. When asked whether it ever contested the application of CCR in Mauritius because it intruded into its regulatory autonomy, the Mauritius NCA provided that it had not, because ‘there is a referral mechanism in the COMESA Competition regulations which we once invoked in a merger case with affected Mauritius and the case was referred to Mauritius to be assessed at the national level’.¹⁰⁶ The referral mechanism, therefore, has minimized conflicts between the CCC and NCAs as it allows the most appropriate institution to assess the merger, as reiterated by an Eswatini NCA official:

‘I think also the referral mechanism somehow provides the window to say Member States can advance their reasons for and put up their case on why a particular matter should be dealt with by them. Because at the end of the day, what must prevail, in as much as you want … it should not affect or should not have a negative impact on other Member States affected’.¹⁰⁷

While CCC has referred several mergers to NCAs, these cases are not public. Recently, CCC began sharing information on its website on mergers referred to NCAs. For instance, on 22 July 2024, the Competition Authority of Kenya (CAK) requested a referral from CCC on the part of the proposed acquisition by Access Bank Plc of all the issued share capital of the National Bank of Kenya Limited.¹⁰⁸ CAK argued that the merging parties operated in Kenya’s banking and bancassurance markets,¹⁰⁹ and the merger transaction could primarily affect the Kenyan market. Moreover, the CAK had previously considered a merger involving Access Bank and approved the merger with conditions addressing employment concerns in Kenya at that time. CAK was worried that this merger raised public interest concerns in the Kenyan market in the form of loss of employment opportunities.

In granting the referral to CAK, CCC provided that CAK was the most appropriate institution to review part of the merger that affected the Kenyan market. Furthermore, CCC argued that the referral request was justifiable ‘having regard to the significant operations of the merging parties in Kenya and the national character of potentially affected markets and thus likely disproportionate effect on competition, as defined in the Regulations in Kenya’.¹¹⁰ Thus, CCC, instead of invoking jurisdiction over a merger that fell under its jurisdiction, referred the part of the merger that significantly affected the Kenyan market to CAK. In this case, CCC recognized that an NCA better addresses national-level public interest concerns such as employment.

NCAs will, therefore, be supportive of RCAs that refer to merger transactions significantly affecting domestic markets because it helps the NCAs retain regulatory autonomy and address national-specific competition and public interest concerns. CCC also noted that the referral does not exclude CAK’s collaboration with CCC. As CCC will continue to review the merger transaction concerning the rest of the Common Market, CAK must continue cooperating with CCC and ensure that the two authorities do not decide on a merger with significant divergences.

d) Sitting on the CCC Board of Commissioners

All the COMESA NCAs mentioned that membership on the CCC Board of Commissioners (Board) greatly influenced their support towards the CCC and the implementation of CCR for various reasons, as shown in Table 2 below.

The above statements from the NCA officials show that having a position on the CCC Board positively influenced supporting CCC in many ways. It allowed NCA officials to understand the work of CCC and the application of CCR. It also became a platform to solve disputes and draft rules and guidelines critical for the functioning of CCC. Ultimately, the COMESA NCAs understood and supported the COMESA competition regime. Thus, RCAs need to establish participatory platforms where NCAs can engage with them, address conflicts, and become part of the RCR’s institution building.

The above observation contributes to scholarly work focusing on how supranational institution officials can invoke supranational roles among civil servants by increasing their participation.¹¹¹ A supranational role is the ability of national officials to identify themselves with the supranational institution. In his research, Voetin showed that in countries where its nationals were judges of the International Criminal Court (ICC), these countries – Bolivia and Ghana – associated themselves with the ICC, supporting it.¹¹² Thus, it is not surprising to see some COMESA NCAs have a positive predisposition towards CCC because their nationals have or had a position of authority at the CCC Board.

The ability of NCAs to join the CCC Board to invoke their support towards CCC also contributes to the growing scholarly work that links socialisation to institutional support. Literature on the influence of the position of authority in a supranational institution has also revealed that the supranational institution becomes a promoter or site of socialization, invoking national officials’ supranational roles.¹¹³ Socialization involves inducting actors and aligning them with institutional norms, rules, and practices.¹¹⁴ Socialization does not always translate to support as actors are not free agents, and their behavioural adaptation is embedded in their domestic contexts. According to Trondal, ‘supranational allegiances are supplementary to pre-established national and sectoral identifications, not a replacement for them’.¹¹⁵ However, socialization allows an institution to change and build individual actors’ preferences, evoking actors’ supranational roles.¹¹⁶

Socialization provides ‘stimuli to the actors, triggering a particular response in return’.¹¹⁷ Hence, through education, indoctrination and persuasion, a supranational institution enables actors to identify with its goals, norms, and demands. Additionally, socialization enables agents to learn what is socially acceptable over time. Consequently, their preferences are shaped by conscious role-playing rather than conscious instrumental calculations. As noted by Checkel,¹¹⁸ ‘socialization implies that an agent switches from following a logic of consequences to a logic of appropriateness independent of utility maximization’. For instance, when selecting whether to support an RCR, NCAs are likely to overlook the costs incurred, and may then, support an RCA because it is the most appropriate thing to do. This was affirmed by COMESA NCA officials, who stated that being on the CCC Board enabled them to understand the application of CCR and appreciate what CCC was doing, invoking support. Consequently, there is a need for research, especially in developing countries where some of the policies are novel and complex, that interrogates how membership and participation in the supranational institution influence specific outcomes such as support for regional integration efforts or international institutions.

e) CCC considers NCA’s interests in its decision-making process

COMESA NCAs noted that they support CCC because it considers their concerns or conditions in its final decision-making process, as shown in Table 3 above.

Ordinarily, what happens is that, on an ongoing basis, CCC actively engages with NCAs through consultations on any conduct affecting the particular Member State. The NCAs then submit to the CCC, including whether they consider themselves the most appropriate institution to investigate the conduct or if there is any particular concern at the national level that the CCC should consider when making a decision.

When a merger transaction affects a particular country, especially when it raises public interest concerns, the CCC has provided decisions with conditions applying to the specific Member State. In the merger transaction involving Coca-Cola Sabco (East Africa) Limited and Castle Malawi Limited,¹²³ CCC approved the merger with conditions because it raised public interest concerns in Malawi. Malawi NCA had raised concerns that post-merger, the production of the Sobo Squash brand could be discontinued in Malawi, despite the fact that citizens of the country had a sentimental attachment to the brand. Considering the national interests, CCC approved the merger with the condition that for a period of five years, the merging parties commit that they will not discontinue the production of the Sobo Squash brand. While the question of whether sentimental values should be a consideration in merger analysis is subject to debate, this case shows how considering national interests in an RCA’s decision-making can foster good working relations with NCAs.

In another merger involving African Banking Corporation Zambia Limited T/A Atlas Mara Zambia and Access Bank Zambia Ltd,¹²⁴ the Zambian NCA raised concerns that the merger would lead to the loss of jobs in Zambia because there was a likelihood that some branches of Atlas Mara Zambia would be closed post-merger. In its decision,¹²⁵ CCC considered that such a scenario would result in the loss of employment and reduced choices for consumers. CCC therefore required Access Bank not to terminate any employment contract as a direct result of the merger except for very high senior management jobs where it would not make sense to duplicate such positions. Nevertheless, where there is such separation, Access Bank was required to honour employment contracts consistent with Zambian labour laws.

When the CCC considers national concerns, NCAs are unlikely to oppose its decisions at the national level and ensure that the CCC’s decisions are enforced in the domestic market. When NCAs are given an opportunity to be part of the decision-making process, and when national-level concerns are integrated into the decision-making, they see CCC as a partner rather than a competitor. This ensures that both institutions achieve the same goal of ensuring anti-competitive conduct does not hinder effective trade within the COMESA Common Market. For instance, the merger referral mechanism, in which CCC refers to mergers with a national nexus or raises national concerns to the NCAs to assess them, has strengthened CCC’s relationship with NCAs. Thus, the ability of the CCC to consider subnational interests has positively influenced its working relations with COMESA NCAs.

The above observation implies the need for scholarly attention explaining how national interests affect support for supranational interest.¹²⁶ According to Neshkova,¹²⁷ when a supranational institution considers subnational interests, there is a high likelihood of success in implementing the supranational institutions. Supranational institutions should consider national-level interests in their decision-making to invoke national-level support. This does not mean that supranational institutions should consider national interests that go beyond the objectives of competition law principles, such as protecting national-level firms engaging in cross-border anti-competitive conduct, from regional sanctioning.

f) When CCC’s enforcement benefits citizens

Additionally, the NCA officials want to see the CCC playing a great role in investigating cartel conduct and consumer protection issues. Some NCA officials therefore noted that investigating cartel conduct and consumer protection issues will allow the CCC to show that its activities benefit individual citizens within COMESA. When citizens appreciate the benefits accrued from the enforcement of CCR, they are likely to support NCA’s initiatives to support the enforcement of a supranational competition law. As stated by Kariuki, ‘CCC has never concluded any cartel cases. The strategy to convince NCAs to legislate competition law aligned with CCR is to use a strategy aligned with the interests of citizens. You must show real work you have done that will benefit the citizen’.

Indeed, the ability of the CCC to recall or ban products that harm consumers at the regional level has prompted NCA support for the CCC. This is because consumer rights violation directly affects citizens, and the public easily relates to consumer protection issues, as noted by the Zambia NCA:

‘Apart from merger thresholds, merger review, and mergers with a regional nexus, you find … issues of consumer welfare where our law was repealed to take interest in the growing concerns of consumer welfare. You find that the COMESA Competition Regulations came at a time when we had just amended our laws to sort of, accommodate the provisions of consumer protection. … So also issues of, you know, consumer protection basic issues like if a product is recalled at the regional level, it was possibly going to be in the country. I think because of the domestication, we wouldn’t be going to have a quick sort of partially informal notices to CCPC on a particular product that is recalled or banned at the regional level due to product safety concerns. So that is just one example of how practical we have found it easy even on the consumer protection side, not only on merger review and cross-border cartels, but that is an example of how we found it straight forward to collaborate with CCC’.¹²⁸

The COMESA NCA identified citizens’ interest as a driver towards their support for CCC. This observation, therefore, invokes scholarly work focusing on citizen support towards supranational institutions and how this influences the Member State’s support. This is critical, as emerging research on public support towards Africa’s regional integration has revealed that there is ‘limited support for integration, with wide variations by country or region’.¹²⁹ In most African countries, competition law and awareness are limited. However, in cases where competition agencies have made enforcement decisions touching on market conduct that affects citizens, they begin to appreciate the role of the competition agency. Thus, RCAs, especially those with dual competition and consumer protection mandates such as CCC, should also consider consumer protection cases and cartel conduct.

g) External support

Other forms of support, especially the adoption of legislation supporting the application and interpretation of CCR, have been driven by external support from the EU, World Bank, and UNCTAD. Zimbabwe noted that its legislative amendment to harmonize its competition law with CCR was driven by UNCTAD peer review and supported by CCC. The push to domesticate CCR in Eswatini was funded through the Regional Integration Support Mechanism (RISM). A project funded by the EU under COMESA supported various African countries, including Malawi, Uganda, Kenya, Zambia, and Zimbabwe. The Eswatini NCA official noted that:

‘The issue of domestication … it emanated from the RISM project. ... It was a project funded by the EU and its aim was to give support to COMESA member States on their regional integration commitments … this was aimed at contributing towards effective domestication and implementation of regional integration policies, regulations, and products at the regional level. Though for us, one of the projects or activities under this project was the domestication of the COMESA Competition Regulations, which was going together with the amendment of our competition Act and Regulations, as well as the amendment of the Fair-Trading Act and the development of the Sectoral Regulations. So it was in three components. So we had received the funding to do all this’.¹³⁰

CCC affirmed that the RISM funding was critical and supported Uganda’s domestication of the COMESA Treaty and COMESA regulations, including CCR. Malawi NCA also benefited from the RISM funding, which they used to push the Malawi government to domesticate the CCR. Although Malawi NCA was unsuccessful, lobbying for this legislative outcome is a form of support for a supranational institution. This observation indicates that external actors with expertise and material support can help national civil servants fulfil their obligations to support supranational institutions. National officials are likely to learn from the experiences of established RCRs and understand why they should also support supranational institutions in their regions. For instance, the EU’s experiences enforcing its community-wide competition law and the benefits accrued have positively affected COMESA NCA’s support towards CCC. In addressing the jurisdictional conflicts between CCC and COMESA NCAs, CCC drew from the EU merger threshold and merger referral mechanism, invoking COMESA NCAs’ support for COMESA RCR.

VI. Conclusion

Generally, this study’s findings have shown that COMESA NCA officials consider the benefits accrued from a supranational RCA. They recognise the problem-solving capacity of an RCR and are committed to the supranational competition law. Thus, for an RCA to invoke an NCA’s support, they should focus on conducting a territorially limited NCA, which reduces transaction and regulatory costs for the businesses operating in the regional market. Relatedly, costs incurred by NCAs when they cede regulatory autonomy to an RCA could hinder effective working relationships between the NCAs and RCA. Thus, RCAs should limit their jurisdiction to their scope of authority and not intrude into NCA’s regulatory turf. RCAs should also adopt measures that enhance equitable redistribution of benefits accruing from enforcing regional competition law.

This research has also shown that rationalists’ explanations are based on the assumption that actors are in a position to calculate the benefits and decide whether to support a supranational institution or not. Benefits accrued from implementing international rules are not the only determinant influencing the support for a supranational institution. Individuals could be reluctant to support supranational institutions even when such supranationalism advances their interests, solves a collective action problem, and policy preferences converge. Moreover, in the context of developing countries where resources and policy awareness are limited, there is a need for scholarly work that goes beyond the cost-benefit analysis to assess peculiar drivers determined by the policy issue and how supranational officials can invoke national civil servants’ supranational roles.

While this study’s findings could inform a wide range of legal, political science, and international relations scholarly work, I will pinpoint a few instances. The findings revealed that sitting on the CCC Board positively influenced NCA’s willingness to support CCC. This finding invokes scholarly work that interrogates how participation, membership, and a position of authority in a supranational or international institution encourage the support of officials. In this case, how supranational institution can become a site of socialization. Second, most COMESA NCAs noted that they support CCC because it considers their interests in its decision-making. This study calls for scholarly work that explores the impact of national interests on the support of supranational institutions. Finally, COMESA NCAs noted the need for CCC to focus on areas that benefit the citizens, invoking scholarly work examining the influence of public support for supranational institutions.

Importantly, NCAs are affected by supranational RCRs differently, meaning their support could vary and the invoking of NCA support should be contextualized. For instance, the NCAs which had a mandatory merger regime when CCC became operational were most affected by the COMESA RCR because they had to cede their regulatory authority to CCC over mergers they had been analysing for a long time. Also, a country like Kenya is most affected by merger transactions within the region because it is the most developed economy in the region, which increases its likelihood of raising concerns over mergers filed at CCC. This calls for research that looks into specific national cases in detail.

Also, consider this example. Some NCAs may not publicly raise contestations over an RCA because they feel more affiliated with the institution and want it to work. It is not surprising to see some COMESA NCAs have a positive predisposition towards CCC because their nationals have or had a position of authority at CCC or CCC’s Board.¹³¹ Indeed, there is a sense of CCC ownership and belonging from the Zambia and Zimbabwe NCA officials. Several explanations can be deduced from this observation, and one of them is that Zambia and Zimbabwe have had their nationals at the helm of CCC. This goes back to the adoption and drafting of the CCR between 2002-2004, which was driven by the then Zambia and Zimbabwe NCAs’ executive directors, George Lipimile¹³² and Alexander Kukuba, respectively.¹³³

Zambia and Zimbabwe are neighbouring countries. During their time, Lipimile and Kukuba handled cross-border mergers and were aware of multiple notifications in different countries and conflicting decisions from different NCAs.¹³⁴ Thus, Zambia and Zimbabwe NCA officials spearheaded the establishment of the COMESA competition regime to address the problem of multiple merger notifications within COMESA. It was also brought to my attention that the CCR is very similar to the Zimbabwe Competition Act.¹³⁵ This means that Zimbabwe greatly influenced the adoption of the CCR. Consequently, having spearheaded the establishment of the COMESA competition regime, Zambia and Zimbabwe NCA have reason to want to see CCC succeed.

In addition to Lipimile and Kukuba establishing the COMESA competition regime, they were at the helm of CCC when it was operationalized. Lipimile was appointed the Director General of CCC in 2013. At the same time, Kukuba became the first chairperson of the CCC Board. Additionally, the current DG of CCC, Willard Mwemba, is a Zambian, while the current chair of the CCC Board is a Zimbabwean. Thus, having their nationals in a position of authority positively influences NRA’s support for supranational institutions. This explains the variation among different NCAs. In conclusion, the support for supranational institutions by NRAs is a culmination of many factors that complement each other.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received financial support for this article’s research, authorship, and/or publication from the German Academic Exchange Service doctoral dissertation fellowship (DAAD, grant # 57381412 - 91693212). I also received funding support from the Graduate School, Technical University of Munich through a Doctoral Completion grant, the TUM Internationalization Fund to carry out the fieldwork and the TUM Family Mobility Grant for child care. Furthermore, I received additional funding from Prof Tim Büthe, Chair of International Relations, Hochschule für Politik.

Acknowledgment

I acknowledge the TUM Graduate School and the Chair of International Relations at the Hochschule für Politik (HfP), who provided me with additional funding to undertake this project after the completion of the DAAD scholarship. I am also grateful for the comments I received on earlier drafts of this article by Prof Tim Büthe, my primary Ph.D. supervisor, Prof Christel Koop, Prof Eleanor Fox, Mr Francis Kariuki, and the International Relations Research Group at the Hochschule für Politik, Technical University of Munich. In particular, this paper improved from the comments I received comments from Chase Foster, Luca Messerschmidt, Cindy Cheng, and Selina Schwaabe at the HfP.

I am deeply indebted to the Max Planck Institute for Innovation and Competition in Munich for providing me with unlimited access to resources during the entire period I wrote this paper. I am highly indebted to the COMESA Competition Commission (CCC), particularly Dr Willard Mwemba, who granted me a research stay at CCC, enabling me to understand how CCC has enforced the COMESA Competition Regulations(CCR). More so Dr. George Lipimile and Mr Alexander Kukuba for giving me an opportunity to interview them and understand the history and earlier experiences of the COMESA competition regime. Special thanks to all the officials of COMESA national competition agencies in Kenya, Malawi, Zambia, Zimbabwe, Mauritius, and Eswatini for allowing me to interview them. I want to give my deepest appreciation to all the interviewees, George Lipimile, Boniface Makongo, Gideon Mokaya, Raphael Mburu, Chilufya Sampa, Alexander Kukuba, Xolani Nyali, Andreas Staggard, Sydney Chisengo, Elton Jangale, Lozinda Lusungu, Angella Kachipapa, Fexter Katungwe, James Chalungumana, Brian M Lingela, Luyamba Mpamba Kapembwa, Ellen Ruparanganda, Tatenda Zengeni, Thembe Lihle, Maurice Nzuki, and Deshmuk Kowlessur for sharing their experiences to understand the enforcement of the CCR at the COMESA and Member State level.

I also want to highlight the funding support I received from various organizations such as AfronomicsLaw, the African International Economic Law Network, the Centre for Competition Regulation and Economic Development (CCRED), the Academic Society for Competition Law (ASCOLA), the Law Society Association (LSA), the Digit Futures at Work Research Centre (Digit), the US Economic Security Project, the College of Europe, and the Central European University to discuss and present the findings of this paper.

Importantly I acknowledge the support I received from the reviewers at International Organization and GRUR International Journal of European and Intellectual Property Law who have helped make a better version of this paper.

Footnotes

Author notes