Francis Kofi Korankye-Sakyi’s thoughts … Why we need competition laws as the head of AfCFTA

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In line with international commerce rules and expectations, organisations which Ghana belong to such as the United Nations Conference on Trade and Development (UNCTAD), The World Trade Organization (WTO), the Africa Union (AU) and the Economic Community of West African States (ECOWAS) have demanded from all member states to have Competition legal frameworks to regulate the conduct of businesses.

The acceptable purposes of Competition laws are basically to promote, protect and regulate the competition processes  among business merchants.  These laws are not to indiscriminately favour small or indigenous companies and punish multinationals as some may perceive.

The philosophy behind all antitrust laws has never been influenced by a market restriction or protectionist orientation. Rather, they are to promote healthy but robust economic competition in any market economy. Their focus, is to vehemently police abuses that surface in such economic milieu due to competing interests.

Antitrust laws are to proscribe illegalities with practices in mergers, acquisitions and other commercial practices that take advantage of unsuspecting consumers. Antitrust laws as rules of trade are generally to enhance economic freedom and to safeguard the free and unhindered competition in the commercial industry.

Even though partnerships through mergers and acquisitions are permissible business acts, any consumer conscious environment will not tolerate certain harmful and illegal dealings that undermine competition.

From the days immemorial, antitrust laws have served the very same purpose of protecting the process of competition among commercial players as an impetus for market efficiency, price moderation and quality assurance for the good of the consumer. Basically, the crux of every competition legislation lies with the aims at denouncing and criminalising monopolisation or an attempt or conspiracy to monopolise any trade by way of contract or means of restraint of trade to a section of the market. Even though restraint of trade is entirely not undesirable, the court is always minded to forbid and curtail unreasonableness in such restraint by competitors and the complicity of regulators.

When an agreement for merger between two companies is deemed to fix prices or rig a bidding process, for instance, an indefensible violation may be deemed to have occurred which may call for the application of the appropriate legislation and process to annul and sanction perpetrators.

Sanctions for antitrust violation may be civil or criminal to give consumers the right to seek compensations or restitution whiles allowing the state to punish for such acts that violate the health, security and public good of the country and for actions that concern abuse of bidding processes to gain advantage in public contracts. The criminal dimension of the sanctions is usually targeted at international competitors that are sophisticated in employing unfair and deceptive means in competitive bidding processes.

Ghana joins the international community to commemorate the World Competition (Antitrust) Day every year but little effort has gone into having a substantive Competition law for the country.  Why Ghana does not still have a competition law and for that matter a Commission to regulate the business environment in this age is of a greater concern to many stakeholders.

The untenable contention is that the hiatus emerges as one of the general business legislative lapses prevalent in the system. In the absence of any antitrust law, distant laws that regulate competition include the Companies Act 1963 (Act 179); the Securities Industry Act 1993 (PNDCL 333) as amended by the Securities Industry (Amendment) Act 2000 (Act 590); the Securities and Exchange Commission Regulations 2003 (LI 1728); and the Central Securities Depository Act 2007 (Act 733). These laws have altogether not sufficiently dealt with the challenges of competition in the country.

Ghana is now the home to the Secretariat of the African Continental Free Trade Area (AfCFTA) and the anticipation for crowding of transnational businesses to seek the Ghanaian market is not in doubt. Both multinational and Micro Small and Medium Enterprises would seek every opportunity to leverage on the conducive and proximate business environment to reach out to other markets of the 53 other countries. This calls for proper regulations of the Ghanaian economy.

Recent happenings within the telecommunication and banking sectors must direct attention to the role of antitrust regulations in Ghana. Suffice to say that a legal architecture on antitrust is key to resolving the unhealthy happenings in these sectors that frustrate consumer protection and safety.

That said, it is unimaginable to learn that Ghana is yet to have any competition law to augment its business environment to protect the consumer to make informed and unfettered choice on the market without being restricted to the whims and dictates of unscrupulous business players.

In conclusion what is needed is to legislate for the required laws to regulate activities of businesses against unfair practices and prohibit discriminatory price adjustments on goods and services; and prevent negotiated allowances between businesses. The whole intendment of such law is to allow for government’s supervision and monitoring of the commercial dealings among merchants by demanding advance notification of any planned merger or acquisition of interests in such businesses.

>>>The writer is an International Trade and Investment Policy Expert and the CEO of Centre for African Trade and Investment Policies in Cape Coast. Contacts: www.catipsghana.com; e-mail: [email protected] 

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