GOVERNANCE AND THE DIGITAL ECONOMY IN AFRICA TECHNICAL BACKGROUND PAPER SERIES Competition Advocacy for Digital Markets in Africa Technical Background Paper: Competition Advocacy for Digital Markets in Africa Copyright © 2023 The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org Disclaimer This work is a product of the staff of The World Bank. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. Rights and Permissions The material in this work is subject to copyright. Any queries on rights and licenses, including subsidiary rights, should be addressed to: Office of the Publisher The World Bank 1818 H Street NW Washington, DC 20433 USA Fax: 202-522-2422 E-mail: pubrights@worldbank.org. Technical Background Paper: Competition Advocacy for Digital Markets in Africa Acknowledgements This Background Paper was prepared under the leadership of Georgiana Pop (Co—TTL, Senior Economist, Global Lead for Global Competition Policy; Markets, Competition, &Technology Unit of the World Bank). The main authors are Georgiana Pop and Davida Connon (Private Sector Development Specialist, Markets, Competition, & and Technology Unit of the World Bank). Gonçalo Coelho (Competition Consultant, Markets, Competition, & and Technology Unit of the World Bank) provided selected inputs. The team is grateful to Jerome Bezzina (Senior Digital Development Specialist, Digital Development Africa West/Central and MENA Unit) for excellent peer review comments. Martha Martinez Licetti (Practice Manager, Markets, Competition and Technology Unit) provided overall guidance and oversight. The data and analysis herein reflect the situation as of December 2021. i Technical Background Paper: Competition Advocacy for Digital Markets in Africa Common Abbreviations and Defined Terms This section explains the common terms and abbreviations used in this paper. Abbreviation / Term Full Terminology / Definition ACF Africa Competition Forum AfCFTA African Continental Free Trade Area AfDB African Development Bank AfICTA Africa Information & Communication Technologies Alliance AfIGF African Internet Governance Forum Association of Regulators of Information and Communications for ARICEA Eastern and Southern Africa ATU African (Union) Telecommunications Union AU African Union AU DIE African Union Department of Infrastructure and Energy, CAK Competition Authority of Kenya CCSA Competition Commission of South Africa CEMAC Communauté Économique et Monétaire de l’Afrique Centrale COMESA Common Market for Eastern and Southern Africa CCC COMESA Competition Commission CRASA Communications Regulatory Authority of Southern Africa EAC East African Community EACCA East African Community Competition Authority EACO East African Communications Organization ECA Egypt Competition Authority ECOWAS Economic Community of West African States ERCA ECOWAS’ Regional Competition Authority EU European Union GSMA Global System for Mobile Communications Association ICN International Competition Network MCC Mauritius Competition Commission MCFTC Malawi Competition and Fair Trading Commission MoU Memorandum of Understanding ii Technical Background Paper: Competition Advocacy for Digital Markets in Africa NCC Namibia Competition Commission NFCCPC Nigerian Federal Competition and Consumer Protection Commission SADC Southern African Development Community SME Small and medium enterprises USSD Unstructured Supplementary Service Data WAEMU West African Economic and Monetary Union WATRA West African Telecommunications Regulators Assembly ZAFFICO Zambia Forestry and Forest Industries Corporation ZCCPC Zambian Competition and Consumer Protection Commission ZCTC Zimbabwean Competition and Tariff Commission iii Technical Background Paper: Competition Advocacy for Digital Markets in Africa Table of Contents 1. Executive Summary................................................................................................................... 1 1.1. Findings ................................................................................................................................... 1 1.2. Entry points for policy reforms ............................................................................................... 3 2. Advocating for competition in Africa’s digital economy .............................................................. 4 2.1. Competition advocacy mandates in Africa ............................................................................. 5 1.1.1 National competition authorities.................................................................................... 8 1.1.2 Regional competition authorities and networks .......................................................... 11 2.2. Regulatory advice and opinions to embed competition principles in legal frameworks in the digital economy ................................................................................................................................. 13 2.3. Market studies/inquiries – a tool to promote pro-market reforms in the digital economy 15 2.4. Awareness raising and capacity building with a focus on the digital economy.................... 17 2.5. Collaboration with sector regulators and other government institutions ........................... 19 Annex 1: Overview of Regional Competition Authorities and Networks ....................................... 28 Annex 2: Awareness-raising through the World Bank – International Competition Network Competition Advocacy Contest ................................................................................................... 31 Bibliography .............................................................................................................................. 32 List of Figures Figure 1. Framework for advocacy activities and areas of analysis ........................................................ 7 Figure 2. Advocacy mandates of national competition authorities across a sample of countries in Africa ........................................................................................................................................................ 8 Figure 3. Implementation of advocacy mandates by national competition authorities: presence on the books versus implementation (2016-2018) ................................................................................... 9 Figure 4. Advocacy mandates of regional competition authorities across a sample of countries in Africa ...................................................................................................................................................... 12 List of Boxes Box 1. Examples of competition advocacy by national competition authorities in Africa – beyond telecommunications and digital markets ....................................................................................... 9 Box 2. National-level regulatory advice/opinions affecting digital markets......................................... 13 Box 3. Regional model legal frameworks/guidelines for digital infrastructure and/or digital markets14 Box 4. National-level market studies/inquiries into digital markets .................................................... 15 Box 5. National awareness-raising activities to promote competition in digital infrastructure and digital markets......................................................................................................................................... 17 Box 6. Regional awareness-raising activities to promote competition in digital infrastructure and digital markets......................................................................................................................................... 18 Box 7. Illustrative MoUs between national competition authorities and sector regulators ................ 20 Box 8. Examples of collaboration between national competition authorities and sector regulators .. 21 Box 9. Regional collaboration by national telecommunications regulators through regional associations .................................................................................................................................. 23 Box 10. Regional telecommunications authorities for potential collaboration to promote competition in digital infrastructure and digital markets ................................................................................. 25 Box 11. Networks of private actors for potential collaboration to promote competition in digital infrastructure and digital markets ............................................................................................... 26 iv Technical Background Paper: Competition Advocacy for Digital Markets in Africa 1. Executive Summary 1.1. Findings Competition advocacy is one of the most effective and important functions of a competition agency. Competition advocacy refers to all of those activities of a competition authority that are intended to promote competition but that do not relate to enforcement.1 Advocacy activities and tools typically fall into four major categories: (i) provision of regulatory advice and opinions (regarding current or draft laws and regulations); (ii) preparation of market studies/inquiries; (iii) collaboration with sector regulators, often through memoranda of understanding (MoUs); and (iv) awareness raising activities and capacity building to promote compliance and buy-in (). The overarching goal of each is to promote a competition culture across government, market actors, and consumers.2 Competition agencies, sector regulators, and other governmental (and non-governmental) bodies at the national and regional levels—acting alone and in collaboration with each other—can all play an important part in competition advocacy in Africa. Across a sample of national competition authorities in Africa surveyed for a forthcoming African Competition Forum – World Bank report, Institutional Design for Independent and Efficient Competition Authorities. Ensuring Sound Outcomes for Competition Policy in Africa (“ACF-World Bank II (forthcoming)”),3 the majority are equipped with at least a general mandate on competition advocacy, in addition to specific advocacy tools or obligations such as to review current or draft laws for their potential competition effects or develop market studies.4 Implementation of advocacy mandates at the national level is generally lacking, however, and varies significantly. In addition, only around half of the 20 authorities surveyed keep a public repository of their advocacy initiatives. Regional competition authorities, specifically COMESA, CEMAC, EAC, ECOWAS, SADC, and WAEMU, also have competition advocacy mandates, although only the mandates of the authorities in COMESA, CEMAC, and the WAEMU specify that they should review current or draft laws and regulations for their impacts on competition. In terms of implementation, it appears that regional competition authorities play an important role in the region but are generally less active than several of their national-level counterparts. In Africa, there are various opportunities for policymakers at the national and regional levels to enhance competition advocacy efforts and promote competition issues in digital infrastructure and digital markets: - Regulatory advice and opinions on current or draft laws and regulations is one of the key aspects of competition advocacy and will need to be strengthened, as they aim to eliminate or minimize potential market distortions that laws and regulations may engender. o At the national level, such advocacy efforts in the context of digital infrastructure and/or digital markets have been somewhat limited and focused on mobile money. o At the regional level, evidence of specific regulatory advice and opinions being provided by regional competition authorities (either for regional or national level 1 International Competition Network (2002), Advocacy and Competition Policy, at 31. 2 Ibid. 3 The forthcoming ACF-World Bank report, Institutional Design for Independent and Efficient Competition Authorities. Ensuring Sound Outcomes for Competition Policy in Africa (“ACF-World Bank II”) reviews the status, institutional design, and activities of African competition authorities, with a view to assessing their independence and ability to engage in efficient implementation of competition policy. 4 Countries that responded to the survey that was used to inform the analysis in the ACF-World Bank II report include: Algeria, Angola, Botswana, Burkina Faso, Cameroon, Congo, Egypt, The Gambia, Kenya, Malawi, Mauritius, Morocco, Namibia, Nigeria, Seychelles, South Africa, Eswatini, Tunisia, Zambia, Zimbabwe. 1 Technical Background Paper: Competition Advocacy for Digital Markets in Africa laws/regulations) is limited. However, regional bodies, including in telecommunications bodies, have prepared model laws and guidelines for the regulation of digital infrastructure and digital markets, reportedly addressing competition issues, access to infrastructure, and spectrum allocation to some extent, among other issues. Model laws and guidelines aim to assist Member governments as they develop national governance frameworks for digital. - Market studies/inquiries aim to look at market and/or sector dynamics, to assist with the detection and removal of market distortions and entry restrictions, thus helping regulators to pursue procompetition reforms, and set appropriate access conditions, notably in the context of the new challenges brought about by digital economy. o At the national level: Such efforts as they relate to digital infrastructure and digital markets have occurred predominantly in higher capacity jurisdictions in Africa, and focus on mobile money services, data portability and interoperability for financial services, data services, and online mediation platforms. o At the regional level, such studies/inquiries pertaining to digital infrastructure or digital markets are still nascent. - Awareness raising and capacity building target sector regulators - telecommunications sector regulators and others involved in digital markets, such as data protection agencies, in this case-, and typically seek to increase the policymakers’ understanding of the benefits of competition for their sectors and explain how to regulate in the least distortive manner. When such activities target the private sector, these efforts can encourage voluntary compliance and reduce risks to consumer welfare—this can potentially reduce costs with respect to enforcement or market studies/inquiries in the future and allow competition authorities to direct their resources elsewhere. o At the national level, competition authorities have a strong track record in awareness- raising activities, and increasingly so around the digital markets and digital infrastructure. o At the regional level, regional competition authorities tend to play an important awareness-raising and capacity-building function regarding competition law and enforcement generally, but their focus on digital markets and digital infrastructure can be further increased. - Collaboration between competition authorities and telecommunications regulators, or any other government agency with powers over digital markets, is critical to enhance the effectiveness and efficiency of their respective actions for the benefit of consumers. This is particularly important for digital infrastructure and digital markets because in many countries, telecommunications regulators—not competition authorities—are granted competition enforcement mandates, in addition to regulatory power, for their covered sectors. o At the national level, collaboration between national competition authorities and sector regulators is commonly achieved through MoUs, and almost 60 percent of African national competition authorities have signed MoUs with sector regulators— most of which have been in the telecommunications, banking, energy, and transport sectors.5 Direct collaboration on specific digital infrastructure and digital market issues between national competition authorities and sector regulators is also emerging. o At the regional level, cooperation between regional competition authorities is also possible, though appears to be nascent. Cross-border collaboration specifically on digital infrastructure takes place through regional associations of national telecommunications regulators, specifically ARICEA, CRASA, and WATRA. National telecommunications regulators are also collaborating through MoUs with other national-level entities active in digital markets (such as data protection authorities), 5 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 2 Technical Background Paper: Competition Advocacy for Digital Markets in Africa although explicit treatment and consideration of competition issues appears to be limited. 1.2. Entry points for policy reforms To increase competition advocacy activities and their potential to improve the conditions of competition in digital markets and digital infrastructure, national-level competition authorities should consider the following strategies: • Increase collaboration, formal and informal, with telecommunications regulators, data regulators, and others involved in digital markets: Engaging with sector regulators ex-ante can have a positive impact on the development of procompetition regulations and minimize or eliminate their anti-competitive effects. Providing specific advice on current or draft regulations affecting digital infrastructure or providing guidance on new approaches that need to be considered in the context of digital markets can enhance this impact. • Leverage regional-level competition authorities and networks: National competition authorities should leverage regional-level competition authorities and networks, as well as sector-specific entities and networks, to promote procompetition regulation notably in digital infrastructure and the importance of competition enforcement in digital markets. • Build human capital: While regional-level competition advocacy will continue to be important over the longer term, governments must invest in the human capital of national competition authorities and sector regulators that govern the telecommunications sector and digital markets and equip them with sufficient resources to pursue competition enforcement and advocacy in a meaningful manner.6 Regional-level competition authorities and competition networks should consider the following strategies: • Bolster the de jure and de facto advocacy mandates and capacities of regional competition authorities. In particular: - ECOWAS: The recent launch of the ECOWAS Regional Competition Authority, ERCA, demonstrates renewed and active interest in competition issues in the region and makes it a promising forum for the discussion of competition as a tool to guard against the risks of digital adoption. - EAC: Recent steps to formalize the EAC Competition Authority (EACCA) Outreach and Advocacy Strategy suggest that there is renewed recognition of the importance of competition to foster economic development and potential appetite to discuss in the digital context. - COMESA: The formal advocacy mandate of the COMESA Competition Commission is relatively comprehensive, including reviewing regional competition policy and reporting to the COMESA Council, facilitating the exchange of information and expertise between Member competition authorities, promoting national competition laws and institutions, and cooperating with Member competition authorities on such, and developing and disseminating information about competition policy more generally. As such, there is potential for it to play a more active role in competition advocacy in digital markets in the region. • Increase regional advocacy initiatives targeting national competition authorities and tailor them to the new challenges of the digital economy. Although several regional competition authorities and the ACF are already active in competition advocacy, it would be remiss not to 6 See World Bank (2021), World Development Report 2021: Data for Development, at Chapter 7, for further discussion. 3 Technical Background Paper: Competition Advocacy for Digital Markets in Africa increase coverage to the digital markets specifically, given the unique reach, convening power, and the rapid growth of the digital economy. For example, the ACF’s biennial conference is an opportunity to bring national competition experts together to network, engage in peer-to- peer learning, and explore opportunities for cooperation around competition challenges in the digital markets and, digital economy, broadly. • Increase collaboration between regional competition authorities and regional telecommunications authorities and networks, as well as other regional initiatives focused on the digital economy. At the regional level, it is often the sector regulators for telecommunications, or infrastructure more broadly, that lead on the development of the digital economy. Regional competition authorities should engage with such actors in order to embed competition principles into digital initiatives. Examples of such actors include ARICEA, CRASA, and WATRA (regional fora for cross-border cooperation in telecommunications sectors), as well as the African Union Telecommunications Union (ATU), the AU Department of Infrastructure and Energy, the Smart Africa Alliance, and the African Internet Governance Forum (AfIGF). • Explore opportunities to engage in competition policy negotiations under the African Continental Free Trade Agreement (AfCFTA) and the Tripartite Free Trade Area. Although these blocs are still nascent, regional competition authorities (as well as national) should monitor developments and wherever possible exploit opportunities to promote and incorporate procompetition principles into matters pertaining to digital infrastructure and digital markets. 2. Advocating for competition in Africa’s digital economy Competition advocacy is a central component of government efforts to establish and maintain competitive markets, promote competition enforcement, and reduce or avoid the distortive effects of government interventions. Competition advocacy is particularly critical in the digital context, to ensure that enforcement and regulation take into consideration the unique (and evolving) market dynamics at play. Competition policy implementation involves both enforcement and advocacy -- enforcement alone is insufficient to achieve a broad culture of competition and competitive, dynamic markets. Many obstacles to competition are formed by the often-unintended effects of laws, regulations, or policies that have the effect of impeding effective competition or facilitating anticompetitive practices. Moreover, the digital economy presents new governance challenges, demanding new approaches to the application of antitrust tools in digital markets (e.g., defining relevant markets, assessing consumer harm, and determining dominance) including new approaches to competition advocacy.7 As such, competition advocacy, which involves issuing advice on current or draft laws, market 7 As set out in the companion Background Paper, Competition Policy in Digital Markets in Africa: “In many digital markets there is a tendency to tip towards dominance and entrenched market power in the hands of a few digital operators. The prevalence of market power in digital markets has been further facilitated by various digital business models as well as the concentration of data in the hands of a limited number of firms, as well as by the restrictions imposed by the digital players on the flow of data. This winner-takes-all scenario can prevent the development of healthy digital ecosystems to the detriment of suppliers and consumers of digital platforms. In the absence of adequate and effective legal protection, some digital platforms will be able to abuse their power and extract concessions from firms and consumers that would not be attainable in a competitive market. In addition, their data advantage will allow them to reinforce barriers to competition and engage in self-preferencing of their own offerings whilst excluding rivals from the market. At the same time, digitization presents serious risks for individual welfare stemming from: an excessive collection of data on individuals; risks of bias and discrimination due to the increased use of algorithmic and automated decision-making, and a suboptimal investment in data governance and data protection by digital platforms (failure to internalize the cybersecurity risks placed by the collection of big data).” 4 Technical Background Paper: Competition Advocacy for Digital Markets in Africa studies/inquiries, 8 promoting collaboration between policymakers, and awareness-raising activities and capacity building, is an important element in Africa’s digital agenda.9 Competition agencies, sector regulators, and other governmental (and non-governmental) bodies at the national and regional levels—acting alone and in collaboration with each other—can all play an important part in competition advocacy. Certainly, over the long term, governments must continue to invest in the human capital of national competition authorities and sector regulators that govern digital markets, and equip them with sufficient resources to pursue competition enforcement and regulation appropriately and tailored to the unique characteristics of digital markets.10 In the near term, however, governments can leverage competition authorities and networks at the regional level, as well as sector-specific networks, to engage in competition advocacy for the sustainable and equitable development of the digital economy. Leveraging regional competition and sector-specific regulatory actors can guide and support efforts at the national level to consider new approaches to procompetition regulation for digital markets and prevent anticompetitive behavior. The sections that follow look at the overall status of competition advocacy in Africa and examine progress with respect to the main types of competition advocacy, including the role played by competition authorities in promoting and enabling pro-competition reforms. The paper draws upon examples of competition advocacy by national and regional competition authorities and networks in Africa, as well as telecommunications regulators and other entities and networks active in the digital economy. 2.1. Competition advocacy mandates in Africa Competition advocacy is one of the most effective and important functions of a competition agency. At a high level, competition advocacy refers to all of those activities of a competition authority that are intended to promote competition but that do not relate to enforcement.11 More specifically, the International Competition Network (ICN) conceptualizes competition advocacy as referring to “those activities conducted by the competition agency, that are related to the promotion of a competitive environment by means of non-enforcement mechanisms, mainly through its relationships with other governmental entities and by increasing public awareness regarding the benefits of competition.”12 Notwithstanding this distinction, advocacy and enforcement are mutually interdependent and reinforce one another: for example, effective competition advocacy can lead to less distortive government market interventions, through regulation or preferential treatment of certain enterprises, which may make anticompetitive behavior by market actors less likely to occur. 8 In this paper these terms are used interchangeably as referring to research projects to learn more about the functioning of sectors and/or specific markets work, particularly given that competition authorities around the world tend to use these terms in different ways. According to the International Competition Network “market studies are research projects conducted to gain an in-depth understanding of how sectors, markets, or market practices are working. ICN members conduct market studies for a variety of purposes, but they are conducted primarily in relation to concerns about the function of markets arising from one or more of the following: (i) firm behaviour; (ii) market structure; (iii) information failure; (iv) consumer conduct; (v) public sector intervention in markets; (vi) other factors which may give rise to consumer detriment.” Market studies may generally be understood as relatively descriptive and involve limited or no interaction with market players. In comparison, market inquiries refer to similar initiatives by a competition authority although there is more proactive and direct solicitation of information from market players, generally to gather data that a competition authority can use later in enforcement actions. See, for example, International Competition Network, Market Studies Project Report, 2009, available at: https://www.internationalcompetitionnetwork.org/wp- content/uploads/2018/09/AWG_MktStudiesReport2009.pdf and the discussion at 4.2, and 2.15-2.16. 9 International Competition Network (2002), Advocacy and Competition Policy, at 25. 10 See World Bank (2021), World Development Report 2021: Data for Development, at Chapter 7, for further discussion. 11 ICN (2002), at 31. 12 ICN (2002), at 25. 5 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Advocacy activities and tools typically fall into four major categories: (i) provision of regulatory advice and opinions (regarding current or draft laws and regulations); (ii) preparation of market studies/inquiries; (iii) collaboration with sector regulators, often through memoranda of understanding (MoUs); and (iv) general awareness raising activities and capacity building to promote compliance and buy-in (Figure 1). The overarching goal of each is to promote a competition culture across government, market actors, and consumers.13 13 ICN (2002), at 31. 6 Figure 1. Framework for advocacy activities and areas of analysis *Relevant to competition authorities with larger mandates and resources, and not necessarily relevant to digital markets. Source: Author’s elaboration, based on Goodwin, Tanja K.; Martinez Licetti, Martha. 2016. Transforming markets through competition: new developments and recent trends in competition advocacy (English). Washington, D.C.: World Bank Group. Technical Background Paper: Competition Advocacy for Digital Markets in Africa 1.1.1 National competition authorities The implementation of advocacy mandates at the national level is lacking, however, and varies significantly across Africa (Error! Reference source not found.igure 3). In addition, only around half of the authorities surveyed for the ACF-World Figure 2. Advocacy mandates of national competition authorities across a Bank II (forthcoming) sample of countries in Africa report keep a public repository of their Algeria advocacy initiatives. Angola This underutilization Botswana and lack of Burkina Faso transparency may be Cameroon related to the fact that Congo only about half of Egypt authorities have staff The Gambia dedicated specifically Kenya to advocacy and they Malawi are generally under- Mauritius resourced. Morocco Namibia Nigeria Seychelles South Africa Eswatini Tunisia Zambia Zimbabwe Review of draft laws Review of current laws Review of draft regulation Review of current regulation Development of market inquiries Development of market studies Awareness and compliance promotion Source: ACF-World Bank (forthcoming), Institutional Design for Independent and Efficient Competition Authorities. Ensuring Sound Outcomes for Competition Policy in Africa. Note: Namibia is currently in the process of expanding its competition law to include formal market inquiry provisions. 8 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Figure 3. Implementation of advocacy mandates by national competition authorities: presence on the books versus implementation (2016-2018) Source: ACF-WBG Institutional Design Index database. For more information see ACF-World Bank (forthcoming), Institutional Design for Independent and Efficient Competition Authorities. Ensuring Sound Outcomes for Competition Policy in Africa. Note: Countries covered in this figure include Algeria, Angola, Botswana, Burkina Faso, Cameroon, COMESA, Congo, Egypt, Eswatini, Gambia, Kenya, Malawi, Mauritius, Morocco, Namibia, Nigeria, Seychelles, South Africa, Tunisia, Uganda. Notwithstanding the overall gap between mandate and practice, several national competition authorities in Africa do have a strong track record in competition advocacy and promoting competition policy across the economy. This includes efforts in traditional sectors such as tea processing in Kenya, sugar in Malawi, banking and public procurement in South Africa, and saw-milling and bread in Zambia (Box 1). To the extent competition authorities are turning their attention to digital markets, examples are included in the sections that follow. Box 1. Examples of competition advocacy by national competition authorities in Africa – beyond telecommunications and digital markets Kenya – tea:14 The Tea Board of Kenya is mandated with regulating the tea sector and issuing licenses to investors. In order to be issued a license for a new tea factory, an investor is required to obtain a “no objection” from existing factories. In 2012, Njeru Industries lodged a complaint with the Competition Authority of Kenya (CAK) that the Kenya Tea Development Agency (the leading management agency for the small-scale tea subsector), Michimikuru Tea Factory, Kiegoi Tea Factory, and Igembe Tea Factory were jointly restricting its entry into the market by opposing its request to the Tea Board for a license to construct a specialty tea factory. In response, the CAK provided an advisory opinion to the Tea Board indicating that the tea market was contestable and that it was therefore possible to license more investors. As a result, Njeru Industries was granted a license and has been processing specialty purple tea (80 percent of production), oolong tea, and orthodox black tea in its new factory since early 2014. This has not only facilitated investment in the sector but also allowed farmers to receive higher farm- gate prices. Malawi - sugar:15 Malawi’s Competition and Fair Trading Commission (MCFTC) uncovered restrictive business practices by companies contracted to transport processed sugar from the country’s sole sugar 14 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Polic y. 15 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 9 Technical Background Paper: Competition Advocacy for Digital Markets in Africa producer to designated distribution centers, where the transporters also managed the warehousing of the product. First, the MCFTC enforced its findings by issuing a cease-and-desist order to the principal transport/warehouse management company involved. Facing the risk of public pushback, a successful appeal against the order, or simply noncompliance, the MCFTC conducted a competition advocacy campaign aimed at sugar industry participants and potentially affected parties to increase their understanding of competition laws and promote compliance. Coordination throughout the process with the Ministry of Industry and Trade was crucial and the campaign succeeded – ultimately, these efforts succeeded in opening up the sugar distribution system and indirectly bringing about other measures that are working to liberalize the sugar market more generally. South Africa – procurement:16 The Competition Commission of South Africa (CCSA)17 contributed to a procompetitive mineral resources policy by providing opinions on the competition issues arising in the Mineral and Petroleum Resources Development Bill 201292. The CCSA’s comments, relating to the definition of market dominance and information exchange, were taken into consideration by the mineral resources department in drafting the legislation. The CCSA also holds an annual Public Sector Forum that serves as a platform for debating key competition concerns and addressing issues such as bid rigging in procurement spending. As a result of the engagement on this topic, the National Treasury amended the procurement policy to include bid rigging detection, and state-run service providers and enterprises (ESKOM, TRANSNET, and DENEL) committed to using a Certificate of Independent Bid Determination as part of their standard bid documentation. There has also been an observable increase in the referral of bid rigging cases from the public sector to the Commission for investigations. Zambia – bread and sawmilling: • Bread:18 After prosecuting and sanctioning bakeries for fixing prices up to 23 percent above competitive levels, the Competition and Consumer Protection Commission of Zambia (ZCCPC) decided to invest in public campaigns to inform the population about the costs of anticompetitive behavior and the benefits of using the leniency program. As a result, several additional cartels among bakeries and flour mills that affected almost 2 million people in several municipalities were identified and dismantled. Price reductions allowed buyers to save up to US$90 thousand per day in the acquisition of bread. • Sawmilling:19 To resolve a complaint from small-scale saw millers that the Zambia Forestry and Forest Industries Corporation (ZAFFICO) had only renewed licenses for large saw-milling firms, the Competition and Consumer Protection Commission recommended that ZAFFICO develop a competitive process of allocating soft wood licenses for both existing and potential saw mill applicants. This measure prevented foreclosure of the market to potential entrants. The resulting entry of 500 small-scale saw millers created an estimated 5,000 direct jobs. 16 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 17 According to the official website, the Advocacy and Public Affairs Division is responsible increasing competition across the economy through non-enforcement means, by working with government entities to review existing and proposed policy and regulation, engaging in awareness raising initiatives and education programs, and building relationship with public and private stakeholders. See: http://www.compcom.co.za/advocacy-and-public-affairs/ 18 See: https://www.worldbank.org/en/events/2018/12/06/2018-2019-competition-advocacy-contest#4 19 See: https://www.worldbank.org/en/events/2015/10/30/the-2015---2016-competition-advocacy-contest-how-to-build-a- culture-of-competition-for-private-sector-development-and-economic-growth#5 10 Technical Background Paper: Competition Advocacy for Digital Markets in Africa 1.1.2 Regional competition authorities and networks Regional competition authorities and government networks can play an especially important role in competition advocacy when capacity at the national level is weak. Regional competition authorities can support national authorities in their efforts to implement national-level competition laws, promote procompetition regulation and reform across sectors, and create opportunities for collaboration on cross- border competition policy and enforcement. In addition, regional institutions are particularly well-placed to engage in awareness-raising and capacity-building activities, for example, by facilitating peer-to-peer learning across national competition authorities and fostering interagency collaboration at the national level on sector-specific competition issues. An overview of regional competition authorities and networks in Africa, including their country membership, is provided in Annex 1: Overview of Regional Competition Authorities and Networks. The majority of regional competition authorities have competition advocacy mandates, and for the most part, they are quite active (in terms of both advocacy and enforcement), even though the perception is that of limited competition oversight across the continent (Figure 4).20 Six regional agreements in Africa either incorporate competition law rules (such as CEMAC) or go beyond and establish supra-national antitrust authorities (such as COMESA, EAC, ECOWAS, and WAEMU).21 Amongst the supra- regional authorities, COMESA, ECOWAS, and EAC have both enforcement and advocacy mandates. In the WAEMU, although the Competition Directorate has exclusive competence to enforce competition rules under WAEMU law,22 advocacy responsibilities rest primarily with national authorities.23 Conversely, while SADC has no enforcement capacity in its member countries and there is no competition authority as such, its competition mandate in the region is essentially limited to advocacy: fostering cooperation on competition policy and enforcement between Members. CEMAC, meanwhile, is yet to establish a functioning competition authority, and no advocacy mandate is set out in the governing legal framework.24 The potential for regional institutions and government networks to contribute to competition advocacy depends to a great extent on political will, as well as capacity and resources. For example, the ECOWAS Regional Competition Authority was only recently launched in 2019 (with the allocation of budget and the appointment of staff), even though it was set up by law in 2008. Similarly, the COMESA Competition Commission began operations in 2013, having been established in law in 2004 (see Annex). In addition, and as noted in the Companion Background Paper, Competition Policy in Digital Markets in Africa, competition authorities often focus on the fulfillment of non-competition mandates, which shows that competition policy goals are not yet fully prioritized. On budget, although the average annual budget increase was about 39 percent between 2009 and 2014, resources remain limited – the average annual budget allocation per technical staff in African authorities is one-third of that in a sample of 33 established 20 See the companion Background Paper, Competition Policy in Digital Markets in Africa in Section 3.2 for more information on competition enforcement. 21 Communauté Économique des États de l'Afrique Centrale, CEMAC; Southern African Development Community, SADC; Common Market for Eastern and Southern Africa, COMESA; East African Community, EAC; Economic Community of West African States, ECOWAS; West African Economic and Monetary Union, WAEMU. 22 Article 90 of the WAEMU Treaty. 23 Directive N° 02/2002/CM/UEMOA Relative à la Coopération entre la Commission et les Structures Nationales de Concurrence des États Membres pour l’Application des Articles. 24 GSMA (2016), Competition Policy in the Digital Age, Case Studies from Asia and Sub-Saharan Africa, available at: https://www.gsma.com/publicpolicy/resources/competition-policy-digital-age-case-studies-asia-sub-saharan-africa 11 Technical Background Paper: Competition Advocacy for Digital Markets in Africa competition authorities around the world.25 On staff, competition authorities in Africa employ an average of 21 technical staff who work on competition—this is approximately 32 percent of total staff (as compared to 68 percent in a sample of 35 established competition agencies around the world).26 Nine authorities have fewer than 10 technical staff handling competition matters. Figure 4. Advocacy mandates of regional competition authorities across a sample of countries in Africa COMESA Competition Commission CEMAC Competition Commission SADC Competition and Consumer Policy and Law… EAC Competition Authority (EACCA) ECOWAS Regional Competition Authority (ERCA) WAEMU Commission, Competition Directorate Review of draft laws Review of current laws Review of draft regulation Review of current regulation Development of market inquiries Development of market studies Awareness and compliance promotion Collaboration with other institutions (regional and national) Source: Author’s elaboration. In addition to regional competition authorities, the Africa Competition Forum (ACF) has an important advocacy function on the Continent. The ACF is an informal network of African national and multinational competition authorities tasked with promoting the adoption of competition laws, building the capacity of new authorities (particularly on practical aspects of enforcement and basic training in analytical tools for competition assessments), and promoting implementation and procompetition regulation and reform. The ACF works with international partners, including the World Bank, to produce high-level assessments on the status of competition in Africa (for more detail see Box 6 below under “awareness raising and capacity building”) and market studies, including of the airlines and construction sectors. The sections that follow look at the four broad categories of competition advocacy activities, specifically: (i) provision of regulatory advice and opinions (regarding current or draft laws and regulations); (ii) preparation of market studies and inquiries; (iii) collaboration with sector regulators, often through MoUs; and (iv) general awareness raising activities and capacity building to promote compliance and buy-in. Examples of such activities from national and regional competition authorities and networks concerning the digital economy or telecommunications sector are included throughout. 25 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy. Also, research indicates that both the WAEMU Commission and national competition authorities in the bloc face significant resource limitations. See Pop, Georgiana; Corthay, Laurent Olivier (2018), Senegal - Better Markets for All through Competition Policy (English). Washington, D.C.: World Bank Group. Also see: Bakhoum, Mor and Molestina, Julia (2011). “Institutional Coherence and Effectivity of a Regional Competition Policy: the Case of the West African Economic and Monetary Union (WAEMU),” Max Planck Institute for Intellectual Property and Competition Law Research Paper No. 11-17, pp. 10-11. 26 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 12 Technical Background Paper: Competition Advocacy for Digital Markets in Africa 2.2. Regulatory advice and opinions to embed competition principles in legal frameworks in the digital economy One of the main competition advocacy activities by competition authorities includes the provision of opinions and statements on current or draft policies, laws, regulations, and procedures from a competition standpoint with the aim of minimizing potential market distortions that laws and regulations may engender. In most African countries, the competition authority is required in law or is specifically authorized to study and comment on legislation or regulations that are being proposed.27 For example, amendments in 2014 to Egypt’s Competition Law made it mandatory to consult the Competition Authority on any draft laws and regulations likely to harm competition.28 Although in most countries such opinions are not binding, providing advice or opining on the competition impacts of the proposed regulation is an opportunity to influence the government with technical arguments and to adjust legal frameworks to make them more procompetitive. National-level advisory opinions on current or draft policies, laws, and regulations pertaining to the telecommunications sector and/or digital markets have been somewhat limited and focused on mobile money (Box 2). According to a review of competition authorities for the ACF-World Bank (2016) report, Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy a competition authority in Africa issues on average 6 advisory opinions per year on laws, regulations, or government interventions in markets.29 Box 2. National-level regulatory advice/opinions affecting digital markets Nigeria: The Federal Competition and Consumer Protection Commission (NFCCPC)30 in collaboration with the National Information Technology Development Agency, established an Inter- Agency Task Force on E-Commerce, with the goal of enforcing e-commerce standards between companies and consumers. In 2018, the Task Force, working together with CEOs from major e- commerce firms in Nigeria, developed a set of guiding principles for online platforms for the protection of consumers.31 Zimbabwe: The Zimbabwean Competition and Tariff Commission (ZCTC) facilitated talks between the Telecommunications Regulator and the Central Bank of Zimbabwe to address regulatory barriers in the telecommunications sector, specifically around pricing and access issues for mobile money systems. The ZCTC reportedly identified potential competition concerns and issues for the sector regulator to address through reform.32 These efforts ultimately led to a significant reduction 27 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 28 Goodwin, Tanja K.; Martinez Licetti, Martha. 2016. Transforming markets through competition: new developments and recent trends in competition advocacy (English). Washington, D.C.: World Bank Group. 29 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 30 Three departments are engaged in advocacy, including the Surveillance and Enforcement department, the Quality Assurance and Development department, and the Consumer Education department. The first two are responsible for interfacing with other regulators to ensure laws, regulations, and standards are procompetition and welfare enhancing, while the latter drives awareness-raising campaigns and engagements with social commentators, professional bodies, trade associations, consumer protection groups and the media. See Nigeria (2019), Annual Report of the Federal Competition and Consumer Protection Commission, available at: https://www.fccpc.gov.ng/uploads/annual-report.pdf 31 Nigeria (2019), Annual Report of the Federal Competition and Consumer Protection Commission, available at: https://www.fccpc.gov.ng/uploads/annual-report.pdf, p.49. 32 Robb, G., Tausha, I. and Vilakazi, T. (2015), “Competition and regulatory issues in emerging mobile payments markets: a case study of Zimbabwe”, available at: 13 Technical Background Paper: Competition Advocacy for Digital Markets in Africa in mobile money transfer transaction costs, thereby increasing access to mobile payment systems in rural and remote areas.33 At the regional level, formal regulatory advice/opinions by regional competition authorities (and reports of such) were not found, despite certain regional competition authorities being bestowed with such a mandate (Figure 4 above). That said, some regional sectoral bodies have prepared model legal frameworks for the governance of digital infrastructure, addressing to some extent competition issues, access to infrastructure, spectrum allocation, and cyber security, among others (Box 3). These model laws are intended to guide Member governments with respect to the development of national governance frameworks for digital infrastructure and digital markets, although their treatment of competition issues is overall limited. Box 3. Regional model legal frameworks/guidelines for digital infrastructure and/or digital markets COMESA: Several aspects of a new 2019 ICT initiative34 between COMESA and the EU are focused on competition in the digital economy, including the development of a regional model policy and regulatory frameworks for e-commerce, open access, and infrastructure sharing. More broadly, the initiative involves the review and development of regional policy and regulatory frameworks to enhance competition and improve access to cost-effective and secure ICT services. The COMESA Secretariat generally leads activities relating to the digital economy, the development of telecommunications infrastructure, and the harmonization of ICT laws and policies in the region.35 In this context, the Secretariat has developed model laws and policies to assist in the development of national ICT frameworks, for example on cyber security and electronic transactions,36competition promotion, access to infrastructure, and net neutrality. EAC: EACO, the EAC’s regional ICT organization is developing model ICT regulatory frameworks and policies, along with a monitoring and evaluation strategy for implementation. EACO also recommends best practices for a harmonized and converged licensing framework, including guidelines for the management and allocation of spectrum.37 More recently, EAC has developed a Legal Framework for Cyber Laws, which provides guidelines on laws that promote the delivery of e- government and e-commerce services. Phase 1, published in 2008, covered rules on electronic transactions and digital signatures, cybercrime, data protection and privacy, and consumer https://static1.squarespace.com/static/52246331e4b0a46e5f1b8ce5/t/55b87319e4b036c899c6fc71/1438151449912/Isaac+Ta usha+et+al_Mobile+banking+in+Zimbabwe.pdf , referring to: ‘Zimbabwe: CTC meets RBZ, Potraz over Econet Inquiry’; The Herald; available: http://allafrica.com/stories/201502100528.html 33 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . See also details of The 2015 – 2016 Competition Advocacy Contest: How to Build a Culture of Competition for Private Sector Development and Economic Growth, available at: https://www.worldbank.org/en/events/2015/10/30/the-2015---2016-competition- advocacy-contest-how-to-build-a-culture-of-competition-for-private-sector-development-and-economic-growth#5. 34 Entitled “The Enhancement of Governance and Enabling Environment in th e ICT sector (EGEE-ICT) in the Eastern Africa, Southern Africa and the Indian Ocean region (EA-SA-IO)). For more information see Annex 2 of Action Document for Enhancement of Governance and Enabling Environment in the ICT sector (EGEE-ICT) in the Eastern Africa, Southern Africa and the Indian Ocean region available here: tps://ec.europa.eu/international- partnerships/system/files/c_2019_7496_f1_annex_40000_infra_ict.pdf. 35 Articles 84 and 96 provide for a collaboration framework among Member States. Since the 1990s, COMESA has pursued the establishment of a centralized telecoms regulatory body and a limited liability company, COMESA Telecommunications Company (COMTEL) to finance infrastructure projects. 36 See: https://www.comesa.int/wp-content/uploads/2020/05/2011Gazette-Vol.-16.pdf 37 See Reports of EACO Working Group 1 from 2014 onwards, available at: http://www.eaco.int/pages/wg-reports 14 Technical Background Paper: Competition Advocacy for Digital Markets in Africa protection. Phase 2 covered intellectual property, competition, taxation, and information security.38 ECOWAS: ECOWAS is developing common operational rules for telecommunications infrastructure and services in the region, including a single liberalized telecoms market, and is working with telecommunications operators to reduce telecom charges by 50 percent.39 2.3. Market studies/inquiries – a tool to promote pro-market reforms in the digital economy Market studies/inquiries40 aim to look at market and/or sector structures, emphasizing the benefits of increasing market access and introducing competition. Such studies/inquiries can assist with the detection and removal of market distortions and entry restrictions, thus helping regulators to reform anti- competitive regulations and procedures, set appropriate access conditions, e.g., in network industries, and challenge harmful mergers. Market studies/inquiries can also lead to commitments by the private sector firms implicated in the inquiries to alter their behavior in response to identified concerns. Market studies/inquiries related to digital infrastructure and digital markets occur predominantly in higher capacity jurisdictions and focus on mobile money services, data portability and interoperability for financial services, data services, and online mediation platforms (Box 4). According to a review of competition authorities for the ACF-World Bank (2016) report, a competition authority in Africa completes on average 1.4 sector inquiries per year. Box 4. National-level market studies/inquiries into digital markets Kenya (2016): In 2016, the CAK41 finalized its market inquiry into USSD42 service provision, concluding that Safaricom was engaging in anticompetitive conduct, including raising the cost of mobile money services for other providers through unfairly high USSD charges and price 38 World Bank (2019). A Single Digital Market for East Africa: Presenting Vision, Strategic Framework, Implementation Roadmap, and Impact Assessment (English). Washington, D.C. : World Bank Group. 39 See https://www.ecowas.int/ecowas-sectors/ict/ and https://www.ecowas.int/ecowas-sectors/telecommunications/ 40 As noted above at footnote 6, these terms are used interchangeably in this paper as referring to research projects to learn more about the functioning of sectors and/or specific markets work. According to the International Competition Network “marke t studies are research projects conducted to gain an in-depth understanding of how sectors, markets, or market practices are working. ICN members conduct market studies for a variety of purposes, but they are conducted primarily in relation to concerns about the function of markets arising from one or more of the following: (i) firm behaviour; (ii) market structure; (iii) information failure; (iv) consumer conduct; (v) public sector intervention in markets; (vi) other factors which may give rise to consumer detriment.” Market studies may generally be understood as relatively descriptive and involve limited or no interaction with market players. In comparison, market inquiries refer to similar initiatives by a competition authority although there is more proactive and direct solicitation of information from market players, generally to gather data that a competition authority can use later in enforcement actions. Competition authorities around the world tend to use these terms in different ways. See, for example, International Competition Network, Market Studies Project Report, 2009, available at: https://www.internationalcompetitionnetwork.org/wp-content/uploads/2018/09/AWG_MktStudiesReport2009.pdf and the discussion at 4.2, and 2.15-2.16. 41 The CAK has a particularly active advocacy practice, housed in CAK’s Department of Planning, Policy and Research. For more information see: https://cak.go.ke/planning/overview 42 USSD refers to “Unstructured Supplementary Service Data” which is a standard for transmitting information over a GSM network. USSD technology is used for mobile money in many lower income contexts because it works on the majority of mobile handsets. As noted by the Kenya report: “In countries where telecom operators are also mobile money issuers, access to USSD can be used to constrain competition.” 15 Technical Background Paper: Competition Advocacy for Digital Markets in Africa discrimination, and refusing interoperability with other mobile money providers. The inquiry ultimately led CAK to issue a directive requiring all mobile money service providers, including Safaricom, to disclose transaction prices to users in real-time notifications – before the transactions are completed and money is transferred.43 The goal was to promote price awareness and product comparisons, and thereby increase competition in the mobile money market. Kenya (2017): In 2017 CAK worked with the Central Bank of Kenya in the second phase of its banking market inquiry, and ultimately developed regulations on consumer transactional data and data portability to increase competition in the sector.44 South Africa (2019): The CCSA released its final report regarding a market inquiry into data services, finding that data prices in South Africa are disproportionately high due to (i) differential and opaque retail pricing structures for data purchased by low and high-volume customers, which had the effect of being “anti-poor”, (ii) inadequate competition in both wholesale and retail mobile markets; (iii) limited spectrum and facilities access; and (iv) the absence of alternative infrastructures for data, including fixed line supply.45 The inquiry led to a settlement agreement between the Commission and telecoms operator Vodacom that the latter would reduce data prices by over 30 percent and increase transparency in consumer pricing.46 South Africa (2021): The CCSA published in February 2021 draft terms of reference for a new market inquiry into online mediation platforms, stating that there is reason to believe that certain market features impede, distort, or restrict competition amongst platforms and undermine the purposes of the competition law.47 Market studies/inquiries at the regional level are less common, especially in the digital markets, potentially because regional authorities are still fairly nascent and prioritize building their enforcement capacity. The WAEMU ICT Commission released a report in 2020 analyzing digital infrastructure and digital markets at the national level, finding that ICT development and connectivity in the region was generally hampered by a lack of digital infrastructure and low electrification rates in households.48 Furthermore, although WAEMU Member States were observed as having specific legislation on telecommunications, protection of personal data, and electronic transactions, only a few had legislation on digital inclusion or open data.49 In addition, the ACF publishes reports on competition challenges in the region, including 43Competition Authority of Kenya (2016), “Competition inquiry into USSD service provision in Kenya,” available at: https://cak.go.ke/sites/default/files/USSD%20Service%20Provision%20Market%20Inquiry.pdf 44 Competition Authority of Kenya (2017), “Competition and consumer protection in the Kenyan banking sector, Phase II,” available at: https://cak.go.ke/sites/default/files/Banking%20Sector%20Phase%20II%20Market%20Inquiry.pdf 45 Competition Commission of South Africa (2019), Data Services Market Inquiry, Final Report, available at: http://www.compcom.co.za/wp-content/uploads/2019/12/DSMI-Non-Confidential-Report-002.pdf 46 Competition Commission South Africa (2020), Announcement of the CCSA-Vodacom agreement, by Commissioner Tembinkosi Bonakele, available at: http://www.compcom.co.za/wp-content/uploads/2020/03/Vodacom-consent-agreement-press-conf- Speaking-notes-for-Commissioner-.pdf. 47 Competition Commission South Africa (2021), Online Intermediation Platforms Market Inquiry, Terms of Reference Draft for Public Comment, available at: http://www.compcom.co.za/wp-content/uploads/2021/02/OIPMI-Draft-ToR-19-02-2021.pdf 48 WAEMU (2020), Evaluation des usages numériques et politiques nationales en matière d’utilisation de masse du numérique dans l’espace UEMOA, available at : http://www.uemoa.int/sites/default/files/bibliotheque/20201030_- _etude_uemoa_services_numeriques_-_rapport_final.pdf 49 Beyond digital infrastructure and digital markets, COMESA announced a market study/inquiry into shopping malls and their effects on the Common Market’s retail sector. See: https://africanantitrust.com/2015/08/03/comesa-foreshadows-first- substantive-sector-study-potential-cartel-enforcement/ 16 Technical Background Paper: Competition Advocacy for Digital Markets in Africa cross-country studies similar to market studies/inquiries, which draw insights into the nature of competitive rivalry and market dynamics in key sectors, including the airline industry and construction.50 2.4. Awareness raising and capacity building with a focus on the digital economy Awareness-raising and capacity-building activities by competition authorities vis-à-vis sector regulators and the private sector (both at the national and regional levels) can help to secure buy-in, promote procompetition regulation and policy, and improve compliance. With respect to sector regulators, such activities typically seek to increase the officials’ understanding of the benefits of competition for their sectors and explain how to regulate in the least distortive manner. For the private sector, these efforts can encourage voluntary compliance and reduce risks to consumer welfare—this can potentially reduce costs with respect to enforcement or market studies/inquiries in the future, and allow competition authorities to direct their resources elsewhere. National competition authorities have a strong track record in awareness-raising activities, and increasingly so around the digital markets and digital infrastructure (Box 5). In the digital context, awareness-raising activities are particularly useful for communicating how competition authorities intend to adapt traditional antitrust tools to assess digital markets. Box 5. National awareness-raising activities to promote competition in digital infrastructure and digital markets Egypt: The Egyptian Competition Authority (ECA) pursues a general awareness-raising strategy for the judiciary, other government authorities, and the business, academic, and media communities.51 In 2014, for example, ECA held workshops for financial sector regulators to discuss the development of the non-banking financial services sector and subsequently signed a MoU with the Egyptian Financial Supervisory Authority on the same (see Box 7). Kenya: CAK’s 4th Annual Competition and Economic Regulation Symposium in September 2017 was titled “Competition Enforcement in the Digital Disruptive Technology and Other Market Dynamics.” The symposium was attended by representatives from across the Kenyan Government, the private sector, consumer organizations, law firms, and development agencies in the country.52 South Africa: In 2020, the CCSA released a report “Competition in the Digital Economy,”53 providing a review of emerging competition issues in e-commerce, and guiding stakeholders on how South Africa’s competition laws can be implemented to achieve equitable outcomes and empower consumers in the 50 ACF 2020 Newsletter, available at: http://www.compcom.co.za/wp-content/uploads/2020/04/African-Competition-Forum- Newsletter-2020-2nd-edition.pdf. In addition, see ACF (2019), Competition challenges in African construction markets – A study across East and Southern Africa, available at: http://www.compcom.co.za/acf-publications/. 51 OECD (2016), “Annual Report on Competition Policy Developments in Egypt - 2015,” available at: https://one.oecd.org/document/DAF/COMP/AR(2016)43/en/pdf 52 Competition Authority of Kenya (2019), Annual Reports and Financial Statements for 2017/2018, available at: https://cak.go.ke/sites/default/files/annual-reports/FY%202017-2018%20CAK%20Annual%20Report.pdf 53 Competition Commission of South Africa. 2020. Competition in the Digital Economy (for Public Comment) , available at: http://www.compcom.co.za/wp-content/uploads/2020/10/Competition-in-the-Digital-Economy-Report-7-September-2020.pdf 17 Technical Background Paper: Competition Advocacy for Digital Markets in Africa digital economy.54 The CCSA held an event with the media to launch the strategy in November 2020 and seek public comment. Regional competition authorities tend to play an important awareness-raising and capacity-building function regarding competition law and enforcement generally, but their focus on digital markets and digital infrastructure can be further increased. For example, in the WAEMU, capacity-building events for national competition authorities include general study visits, training courses, and workshops on case management and investigation procedures.55 Various opportunities for awareness-raising activities by regional competition authorities may also exist in the context of regional networks of national telecommunications sector regulators, regional telecommunications sector regulators, and private networks focusing on digital infrastructure and the digital economy (Box 9, Box 10, and Box 11 respectively). Beyond competition authorities, however, Secretariats more broadly have been active regarding the development of the digital economy and awareness raising regarding governance issues that regulators need to address (Box 6). Competition advocacy in the form of awareness-raising activities can also take place at the international level. Although there is generally a global, cross-sectoral focus on these activities overall, they can play an important part in knowledge building around the importance of competition policy and enforcement for development. For example, the World Bank – ICN Competition Advocacy Contest showcases efforts of government and non-government actors at the domestic level to promote competition (Annex 2: Awareness-raising through the World Bank – International Competition Network Competition Advocacy Contest). Box 6. Regional awareness-raising activities to promote competition in digital infrastructure and digital markets ACF: The ACF works with international partners, such as the World Bank, to study the conditions of competition policy on the Continent and raise awareness regarding the value of competitive markets. Notably, it has partnered with the World Bank in recent years to prepare two high-level reports: - First, the ACF-World Bank (2016) report, Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy, reviewed the status of competition frameworks and implementation in Africa, with a special focus on the cement, fertilizer, and telecommunications sectors. The analysis of the telecommunications sector revealed that markets tended to demonstrate weak competition, with high levels of concentration and state participation, limited availability of spectrum, and high termination rates. The report recommended government interventions in the form of regulation and competition policy to assure market efficiency, improve competitive neutrality, and increase enforcement to combat abuse of dominance and price-fixing behavior. - Second, and forthcoming in 2021 is the ACF-World Bank report Institutional Design for Independent and Efficient Competition Authorities: Ensuring Sound Outcomes for 54 See Media Advisory of Nov 4, 2020, available at: http://www.compcom.co.za/wp-content/uploads/2020/11/COMPETITION- COMMISSIONER-TO-LAUNCH-THE-COMMISSION%E2%80%99S-COMPETITIVE-STRATEGY-IN-SOUTH-AFRICA%E2%80%99S- DIGITAL-ECONOMY.pdf 55 In 2014, 18 participants from the WAEMU Commission and national authorities of WAEMU members attended a two week training course organized as part of the WAEMU - UNCTAD project on competition. UNCTAD (2020). See: https://unctad.org/es/node/893 18 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Competition Policy in Africa (“ACF-World Bank II (forthcoming)”), which examines the current status of national competition authorities, including their de jure and de facto independence, capacity and resources, and main activities. COMESA: In November 2020, the COMESA Secretariat hosted a webinar to discuss the digital cross- border payments ecosystem for SMEs in COMESA, which included a discussion on competition issues in digital markets and the need for cooperation.56 The Secretariat is also in the process of establishing a regional cybersecurity center that will be a center for capacity building and information exchange. ECOWAS: The ECOWAS Secretariat partnered with the GSM Association57 in 2018 to launch the inaugural Annual Regional Conference for Economic Community of West African States – ECOWAS to explore how government, working together with industry, can create an enabling environment for the development and promotion of a digital regional economy.58 Delegations from 12 of the 15 member states participated in two training sessions: Unlocking Mobile Rural Coverage and Competition Policy. More recently, in 2020, ECOWAS convened stakeholders from the digital economy for the 12th West Africa Internet Governance Forum (IGF).59 The event involved a two- day videoconference on the impact of trust and privacy in the current COVID-19 pandemic, cybersecurity, and cybercrime.60 2.5. Collaboration with sector regulators and other government institutions Collaboration between competition authorities and telecommunications regulators, or any other government agency with powers over digital markets, is critical to enhance the effectiveness and efficiency of their respective actions for the benefit of consumers. In many countries, telecommunications regulators—not competition authorities—are granted competition enforcement mandates, in addition to regulatory power, for their covered sectors. For example, this is the case in Kenya (the Communications Authority); Rwanda (the Utilities Regulatory Authority); Cape Verde (the Multi- Sector Regulatory Agency for the Economy). Although sector regulators bring essential technical expertise to bear in the regulation of often complex areas of the economy, they may be vulnerable to regulatory capture and lobbying, due to smaller, focused constituencies. On the other hand, competition authorities working alone may not have the required sector expertise for purposes of an effective and appropriate competition assessment or competition law enforcement in that particular sector. Collaboration between national competition authorities and sector regulators can most easily be achieved through working groups and MoUs. For example, the establishment of working groups on 56 See details of COMESA’s activities on digital financial inclusion here: https://www.comesa.int/events/reshaping-the-future-of- industry-and-smes-through-digital-financial-inclusion/ 57 The GSMA represents the interests of mobile operators worldwide, uniting more than 750 operators with almost 400 companies in the broader mobile ecosystem, including handset and device makers, software companies, equipment providers and internet companies, as well as organisations in adjacent industry sectors. 58 See details of the 2018 conference here: https://www.gsma.com/publicpolicy/economic-community-of-west-african-states- annual-regional-conference-2018 59 The Internet Governance Forum was mandated by paragraphs 72 and 80 of the Tunis Agenda on the Information Society adopted during the second phase of the World Summit on the Information Society. For more information, see: https://www.waigf.org/about-waigf/ 60 For more information, see: https://www.ecowas.int/ecowas-encourages-engagement-and-cooperation-towards-the- development-of-a-digital-economy-at-the-12th-west-africa-internet-governance-forum-waigf/ 19 Technical Background Paper: Competition Advocacy for Digital Markets in Africa competition issues, including staff from telecommunications regulators and competition authorities, is an effective mechanism to encourage peer-to-peer learning, collaboration, and develop expertise in the application of competition law in telecoms. In cases of concurrent jurisdiction between the competition agency and telecoms regulators, MoUs can be especially useful to set out how each institution will exercise its functions when dealing with overlapping issues. MoUs can enable competition authorities to provide opinions on government interventions in terms of their impact on markets and competition and create opportunities for competition authorities to open up markets and influence market dynamics on an ex-ante basis. MoUs delineating respective areas of intervention can also improve resource allocation while avoiding contradictory decisions and potential discretional policy application (e.g., around mergers in a regulated sector). A previous survey of African national competition authorities for the ACF-World Bank (2016) report Breaking Down Barriers, indicated that almost 60 percent have signed MoUs with sector regulators — most of which have been in the telecommunications, banking, energy, and transport sectors.61 MoUs with telecommunications sector regulators typically address practical issues of cooperation between the parties in the context of enforcement, regulation, consumer outreach, and peer-to-peer learning in areas of overlapping jurisdiction (Box 7). There are also reports of direct collaboration on specific digital infrastructure and digital market issues between national competition authorities and sector regulators (Box 8). Those instances found so far involve collaboration with telecommunications regulators and financial sector regulators regarding mobile money issues. Box 7. Illustrative MoUs between national competition authorities and sector regulators Botswana: In 2015, the Botswana Competition and Consumer Authority and the Communications Regulatory Authority signed a MoU covering the internet, as well as postal, broadcasting, radio, IT, and telecommunications, to formalize cooperation in the realms of information sharing and investigations of anti-competitive behavior.62 Egypt: The ECA signed a MoU with the Egyptian Financial Supervisory Authority in 2015 emphasizing the importance of free competition in financial services, particularly non-banking financial institutions.63 The Gambia: The Competition Commission has an MoU with the national telecommunications regulator, Public Utilities Regulatory Authority, covering the referral of cases, information sharing, and joint events.64 61 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigorous Competition Policy . 62 The Botswana CA-CRA MoU can be accessed here: https://www.competitionauthority.co.bw/sites/default/files/CA%20and%20BOCRA%20MoU%20Signed%2020-1-2015.pdf. 63See Daily News Egypt (May 10, 2015), “First cooperation agreement between EFSA and ECA signed ,” available here: https://dailynewsegypt.com/2015/05/10/first-cooperation-agreement-between-efsa-and-eca-signed/ 64 World Bank Global Competition Team (2020), Getting the Competition Game Right in Mobile Communications and Radio Spectrum in West Africa: An Assessment of Regulatory Restrictions to Competition, (unpublished). 20 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Kenya: CAK and the Communications Authority signed an MoU in 2015 to address issues around concurrent jurisdiction in the telecommunications sector.65 More recently in 2018, CAK requested Parliament to enact laws that would compel regulators to work together.66 Malawi: The MCFTC and the Malawi Communications Regulatory Authority signed an MoU in 2013 in order to increase market intelligence in the telecommunications sector.67 Based on this, the MCFTC convenes regular working groups to discuss relevant cases under investigation.68 Mauritius: The Mauritius Competition Commission (MCC) and the telecommunications regulator have an MoU to address overlapping powers and facilitate cooperation when investigating potential anti- competitive behavior in the supply of ICT services, to minimize the duplication of activity, and increase mutual understanding of each party’s respective roles.69 Namibia: The Competition Commission (NCC) has signed a MoU with the Communications Regulatory Authority to formalize cooperation and ensure the consistent application of their obligations to protect and promote competition, including investigations into anti-competitive behavior and mergers.70 The MoU also specifies that it intends to improve mutual understanding and undertake general studies on competition in the ICT sector. Nigeria: The NFCCPC has signed an MoU with the Communications Commission to ensure that both agencies work together in resolving complaints and addressing market trends, and provides for different types of collaboration including technical support, information sharing, and consumer education efforts.71 South Africa: The CCSA has signed MoUs with, among others, the national telecommunications regulator, the Independent Communications Authority, covering issues of concurrent jurisdiction.72 Among other things, the agreement seeks to coordinate decision-making and consultations regarding the definition of markets for electronic communications, broadcasting, and postal services and assessing competition in those contexts. Zambia: The ZCCPC is represented on the boards of regulators, and all sector regulators are required to consult the competition authority. Box 8. Examples of collaboration between national competition authorities and sector regulators Zambia: The ZCCPC intervened in a refusal to deal case where the country’s leading telecommunications provider, MTN Zambia, had denied another company access to their platform for Unstructured Supplementary Service Data (USSD) and Bulk Short Message Services (SMS). After 65 See CAK Newsletter (October 1, 2016), available at: https://www.cak.go.ke/sites/default/files/2019- 06/Competition%20Authority%20of%20Kenya%20News%20Bulletin%20%2C%20October%202016-min.pdf 66 ACF-World Bank II (forthcoming 2021). 67 MCFTC, Annual Report 2013/2014, available at: https://www.cftc.mw/annual-reports/?wpdmc=annual-reports 68 MCFTC Annual Report 2015/2016, available at: https://www.cftc.mw/annual-reports/?wpdmc=annual-reports 69 The Mauritius MoU can be accessed here: https://competitioncommission.mu/memoranda-of-understanding/. 70 The Namibia MoU can be accessed here: https://www.nacc.com.na/technical_overview/memoranda_of_understanding.php 71 MoUs of the NFCCPC are discussed here: https://www.fccpc.gov.ng/about/alliances/ 72 For the MoU between the Competition Commission and the ICA, see: http://www.compcom.co.za/wp- content/uploads/2019/09/MOA-between-the-Competition-Commission-and-ICASA-signed-on-29-August-2019.pdf. A full list of MoUs is available here: See a list of MoUs here: http://www.compcom.co.za/mou-with-sector-regulators-in-south-africa/. 21 Technical Background Paper: Competition Advocacy for Digital Markets in Africa consultations were held between the ZCCPC the Bank of Zambia, the telecommunications regulator, and foreign operators, and launching several advocacy campaigns, the case was settled and MTN Zambia was fined 4 percent of its annual turnover. This enforcement and advocacy combination led to the entry of 4 operators, millions of mobile money services’ customers, a 70 percent price reduction of the services, and 20,000 new direct and indirect jobs.73 Zimbabwe: The Zimbabwean Competition and Tariff Commission (ZCTC) facilitated talks between the Telecommunications Regulator and the Central Bank of Zimbabwe to address regulatory barriers in the telecommunications sector, specifically around pricing and access issues for mobile money systems. The ZCTC reportedly identified potential competition concerns and issues for the sector regulator to address through reform.74 These efforts ultimately led to a significant reduction in mobile money transfer transaction costs, thereby increasing access to mobile payment systems in rural and remote areas.75 Several national competition authorities have also signed MoUs with one another to promote cross- border cooperation in competition law enforcement and policy generally – though not with a sectoral focus. For example, Malawi has signed MoUs with Botswana, Swaziland, Tanzania, and Zambia to aid general cooperation in enforcement and information exchange.76 South Africa has signed MoUs, again regarding general cooperation, with competition authorities in Namibia (2015), Kenya (2016), Mauritius (2016), Eswatini (2018), and most recently with Zimbabwe (2019), and Botswana (2019).77 Specific sectors are not identified in these MoUs between national-level competition authorities. Cooperation between regional competition authorities is also possible, though appears to be nascent. For example, the ECOWAS Commission held in June 2021 a virtual consultative meeting with officials of the African Development Bank (AfDB) on the steps taken to promote competition in the ECOWAS region, particularly the establishment and operationalization of ERCA, and to explore areas of collaboration and AfDB support.78 Cross-border cooperation and collaboration specifically regarding digital infrastructure takes place through regional associations of national telecommunications regulators, specifically ARICEA,79 CRASA,80 and WATRA81 (Box 9). These associations of national telecommunications regulators exist within 73 See WBG-ICN 2019 2020 Competition Advocacy Contest, Theme 4, available at: https://www.worldbank.org/en/events/2019/11/11/2019-2020-competition-advocacy-contest 74 Robb, G., Tausha, I. and Vilakazi, T. (2015), “Competition and regulatory issues in emerging mobile payments markets: a case study of Zimbabwe”, available at: https://static1.squarespace.com/static/52246331e4b0a46e5f1b8ce5/t/55b87319e4b036c899c6fc71/1438151449912/Isaac+Ta usha+et+al_Mobile+banking+in+Zimbabwe.pdf , referring to: ‘Zimbabwe: CTC meets RBZ, Potraz over Econet Inquiry’; The Herald; available: http://allafrica.com/stories/201502100528.html 75 ACF-World Bank (2016), Breaking Down Barriers, Unlocking Africa’s Potential through Vigo rous Competition Policy. See also details of The 2015 – 2016 Competition Advocacy Contest: How to Build a Culture of Competition for Private Sector Development and Economic Growth, available at: https://www.worldbank.org/en/events/2015/10/30/the-2015---2016-competition- advocacy-contest-how-to-build-a-culture-of-competition-for-private-sector-development-and-economic-growth#5. 76 See full list here: https://www.cftc.mw/working-relationships/ 77 The MoUs can be accessed here: http://www.compcom.co.za/mou-with-international-regulators/. Also: ACF-World Bank II (forthcoming 2021). 78 For more information, see: https://www.ecowas.int/ecowas-holds-virtual-consultative-meeting-with-african-development- bank-to-explore-areas-of-collaboration-on-regional-competition-framework/. 79 Association of Regulators of Information and Communications for Eastern and Southern Africa (ARICEA). 80 Communications Regulatory Authority of Southern Africa (CRASA). 81 West African Telecommunications Regulators Assembly (WATRA). 22 Technical Background Paper: Competition Advocacy for Digital Markets in Africa the COMESA, ECOWAS, and SADC ecosystems, and would be natural fora to discuss and collaborate on procompetition regulation of upstream infrastructure and the intersection with competition issues in downstream digital markets in more detail. Although these associations are relatively well established, the inclusion of competition experts or discussion of competition issues appears to have been limited and could be further explored. Box 9. Regional collaboration by national telecommunications regulators through regional associations Cross-border collaboration between telecommunications sector regulators is relatively well- established on the Continent – at least formally. COMESA, ECOWAS, and SADC founded regional fora (ARICEA, WATRA, and CRASA) for national telecommunications regulators in the early 2000s, and each forum spearheads regional initiatives for infrastructure development, including policy and regulatory harmonization initiatives to improve cross-border connectivity. By contrast, the EAC incorporates ICT development into all of its regional development initiatives, in part because the EAC Treaty requires members to facilitate an environment for private investment in telecommunications. The Economic Community for Central African States (CEMAC) is the least active regional economic community for telecommunications promotion, in part due to the absence of strong regulatory fora for peer-to-peer learning and cooperation.82 ARICEA: COMESA established the Association of Regulators of Information and Communications for Eastern and Southern Africa (ARICEA)83 in 2003 as a forum for cooperation amongst national telecom regulators in the region. COMESA efforts to harmonize telecommunications policy, law, regulatory guidelines, and prepare model documents were carried out principally through ARICEA and its convening function vis-à-vis national regulators.84 Included in the model documents were guidelines and model laws on spectrum management, universal service/access, and consumer protection. WATRA: ECOWAS established the West African Telecommunications Regulators Assembly (WATRA) in 2000 with members coming from national regulatory authorities and departments for the regulation of telecommunications services from Mauritania and various ECOWAS members.85 WATRA’s principal objective is to enhance cooperation between sector regulators to improve ex- ante regulation of the telecommunications sector with a view to increasing roaming services in the region. Among other things, WATRA has developed and adopted guidelines on universal access, frequency management, and data management.86 82 See African Development Bank (2013), Connecting Africa: An Assessment of Progress Towards the Connect Africa Summit Goals, available at https://www.afdb.org/fileadmin/uploads/afdb/Documents/Project-and-Operations/Connecting_Africa_- _An_Assessment_of_Progress_Towards_the_Connect_Africa_Summit_Goals_-_Main_Report.pdf 83 ARICEA is similar WATRA (for ECOWAS members) and to CRASA (for SADC members) (discussed below). 84 See African Development Bank (2013), Connecting Africa: An Assessment of Progress Towards the Connect Africa Summit Goals, available at https://www.afdb.org/fileadmin/uploads/afdb/Documents/Project-and-Operations/Connecting_Africa_- _An_Assessment_of_Progress_Towards_the_Connect_Africa_Summit_Goals_-_Main_Report.pdf 85 ECOWAS members include: Benin, Burkina Faso, Cabo Verde, Côte d’Ivoire, Gambia, Ghana, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo. For more information see: https://watra.org/. 86 See African Development Bank (2013). 23 Technical Background Paper: Competition Advocacy for Digital Markets in Africa CRASA: Created under the auspices of SADC in 1996, the Communications Regulatory Authority of Southern Africa (CRASA)87 is a convening forum for national sector regulators from the region. 88 SADC and CRASA drive a regional telecommunications integration agenda through the development of internet and broadband infrastructure projects, harmonization of legal and policy frameworks, and capacity building. CRASA has developed model guidelines on fair competition and wholesale pricing, universal service/access, and consumer protection. In addition, the 2001 SADC Declaration on Information and Communication Technologies recognized the need to remove barriers to e- commerce in order to increase access to markets and reduce costs),89 a 2010 e-SADC Strategy Framework addressing the development of internet exchange points, harmonization of cyber security laws and improving cross-border connectivity,90 and the 2012 Regional Infrastructure Development Master Plan, which sets out the region’s priorities for new infrastructure through 2027.91 EAC: EACO, the East African Communications Organization, is responsible for policy harmonization within EAC Members, and develops model laws, policies, and guidelines to foster cross-border connectivity in the region (see also above in Box 3). Although EACO has been particularly successful at bringing sector regulators and operators together, competition remains weak. Recognizing the weak conditions of competition in the telecommunications sector, the EAC developed the “One Network Area” covering Rwanda, Kenya, Uganda, and South Sudan.92 The ONA project harmonized rate caps for cross-border traffic originating and terminating within participating countries and zero roaming charges for users in the region. National telecommunications regulators are also collaborating through MoUs with other national-level entities active in digital markets, such as data protection authorities, although explicit treatment and consideration of competition issues appears to be limited. For example, in Tunisia, the Ministry of Communication Technology and Digital Economy signed an MoU with the Tunisian data protection authority in 2017 regarding the implementation of a national system for the unique identification of Tunisian citizens, to promote consideration of the country’s data protection laws and regulations in the creation and operation of the Identification System.93 In Kenya, the Communications Authority has signed an MoU with the International Telecommunications Union relating to cybercrime, which will entitle the Kenyan National Computer Incident Response Team Coordination Center to receive enhanced technical support.94 87 The adoption of the SADC Protocol on Transport, Communications and Meteorology in 1996 called for autonomous regulators at the national level and led to the establishment of CRASA (previously “Telecommunications Regulatory Asso ciation of Southern Africa” (TRASA)) 88 CRASA members are regulatory authorities from the following SADC Countries: Angola, Botswana, DRC, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. 89 The Declaration can be accessed here: https://www.sadc.int/documents- publications/show/Declaration_on_Information_and_Communication_Technology2001.pdf 90 The e-SADC Strategic Framework can be accessed here: https://repository.uneca.org/ds2/stream/?#/documents/789cf54b- 73c2-59a6-9536-f894b38ee6ff/page/1. 91 SADC (2012), Regional Infrastructure Development Plan, available at: https://www.sadc.int/files/7513/5293/3530/Regional_Infrastructure_Development_Master_Plan_Executive_Summary.pdf 92 Tanzania and Burundi have the option to join when they are ready. 93 Data Guidance (January 19, 2017), “Tunisia: MTCEN signs MoU with INDPP on national identification system ,” available at: https://www.dataguidance.com/news/tunisia-mtcen-signs-mou-indpp-national-identification 94 Data Guidance (June 9, 2015), “Kenya: Communications authority signs cybercrime MoU with ITU ,” available at: https://www.dataguidance.com/news/kenya-communications-authority-signs-cybercrime-mou-itu 24 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Bringing together regional-level telecommunications bodies and regional competition authorities could better target competition advocacy efforts at the regional level (Box 10). Opportunities for collaboration between regional competition authorities and regional telecommunications authorities exist and should be explored in order to promote competition in digital infrastructure and digital markets, and embed competition principles into relevant regional initiatives. Similar opportunities may arise in the context of negotiations around the African Continental Free Trade Agreement (AfCFTA)95 and the Tripartite Free Trade Area.96 The AfCFTA is likely to have a digital focus and could also foster harmonization on competition policy for the digital economy through their competition policy protocols, which are under negotiation. It is hoped that upcoming negotiations on the protocol will benefit from the sharp development that competition policy has experienced in Africa in the past decade. As for the Tripartite FTA, competition policy or enforcement is not yet part of the initiative, but like the AfCFTA, it could eventually be a promising forum in which to discuss the digital economy and the importance of competition policy and enforcement to mitigate associated risks. Regional competition authorities could also consider collaborating with regional private networks focused on the telecommunications sector and digital economy to promote competition policy and enforcement in that context (Box 11). These various fora—regional telecommunications authorities and regional private networks in the area—may also present good opportunities for awareness-raising activities, as discussed in the previous section. Box 10. Regional telecommunications authorities for potential collaboration to promote competition in digital infrastructure and digital markets Regional competition authorities could consider engaging and collaborating with the following regional telecommunications sector authorities in order to promote competition in digital infrastructure and digital markets: African Telecommunications Union (ATU):97 A specialized agency of the African Union (AU), the ATU provides a forum for stakeholders to develop policies and strategies aimed at improving access to information infrastructure and services. The ATU also represents its members at conferences and promotes initiatives aimed at integrating regional markets, attracting ICT infrastructure investment, and building institutional and human capacity. 95 See Gachuiri, Elizabeth (2020), “African Continental Free Trade Area Phase II Negotiations: A Space for a Competition Protocol?” UNCTAD Research Paper No. 56 UNCTAD/SER.RP/2020/15. Available at https://unctad.org/system/files/official-document/ser- rp-2020d15_en.pdf. 96 The EAC, SADC, and COMESA signed a declaration in 2011 to launch negotiations for the establishment of the largest single free trade area in Africa comprising 28 countries – the Tripartite Free Trade Area. The agreement was concluded in 2015 and 10 countries had ratified the agreement as of February 2021. Upon ratification by 14 countries, the agreements will enter into force. The Tripartite FTA partnership agreements seek to strengthen and deepen economic integration along three pillars: market integration, industrial development, and infrastructure development. For more information: https://www.comesa.int/new- deadline-set-for-ratification-of-tripartite-free-trade-area/ and https://www.sadc.int/about-sadc/continental-interregional- integration/tripartite-cooperation/ 97 http://atu-uat.org/history/ 25 Technical Background Paper: Competition Advocacy for Digital Markets in Africa AU Department of Infrastructure and Energy (DIE):98 Several activities of the AU, spearheaded by the DIE, provide opportunities to promote competition policy in the development and governance of the telecommunications sector and digital economy.99 Smart Africa Alliance:100 The Smart Africa Alliance refers to AU countries that have committed to providing leadership in accelerating socio-economic development through ICT, and the Alliance has set the creation of a DSM in Africa as its strategic vision (see previous).101 Although most projects relate to infrastructure development and capacity building on ICT skills, the One Africa Network project aims to reduce the cost of mobile communications in Africa, facilitate cross-border mobile payments, and keep traffic generated and destined for Africa on the Continent through the development of essential infrastructure. Competition issues do not yet appear to have been addressed in this context, but the Smart Africa Alliance more broadly is well-placed to promote competition as part of a larger ICT and digital development agenda. African Internet Governance Forum (AfIGF):102 The AfIGF, hosted by the African Union Commission, could incorporate competition advocacy into its agenda on internet governance. The AfIGF engages primarily in awareness-raising and capacity-building activities, in order to strengthen multistakeholder dialogue for Internet governance and facilitate peer-to-peer learning. Box 11. Networks of private actors for potential collaboration to promote competition in digital infrastructure and digital markets Regional competition authorities should look beyond regional and national-level government institutions to ensure that private actors are sensitized to the importance of competition and the unique risks posed by the digital economy. Networks of private actors in the region include: Africa Information & Communication Technologies Alliance (AfICTA):103 The AfICTA is a private sector- led alliance with a unique advocacy and convening mandate on the Continent, established to foster multi-stakeholder dialogue in order to accelerate ICT enabled development and the use of mobile, 98 https://au.int/ie 99 This includes the Policy and Regulation Initiative for Digital Africa (PRIDA) and the Digital Transformation Strategy for Africa (2020-2030), which seeks to develop a Digital Single Market (DSM) for Africa. PRIDA is a joint initiative of the AU, the European Union (EU) and the International Telecommunication Union (ITU). The AU Commission is leading on Track 2 of the PRIDA initiative, which involves the harmonization of ICT/telecommunications policy, legal and regulatory frameworks. For more information see: https://au.int/en/pressreleases/20190905/prida-continental-meeting-harmonisation-ict-policies-and-regulations. The AU’s Digital Transformation Strategy for Africa builds on existing initiatives and frameworks (including PRIDA) to support the development of a Digital Single Market (DSM) for Africa as part of the AU’s integration priorities. The African Telecommunications Union (ATU) and the Smart Africa Alliance (see below) were key stakeholders in developing the Strategy. 100 For more information: https://smartafrica.org/ 101 The SMART Africa Manifesto was endorsed by all Heads of State and Government of the African Union in 2014. 102 The AfIGF Secretariat is hosted by the African Union Commission (AUC) and supported by the United Nations Economic Commission for Africa (UNECA), in accordance with the Joint AUC and ECA Communiqué on the Secretariat of the African IGF, dated 3 September 2014. It is physically located at the AUC Headquarters in Addis Ababa, Ethiopia. The AfIGF is based on the Internet Governance Forum and presides over five subsidiary regional initiatives (the West Africa IGF, the East Africa IGF, the Central Africa IGF, the North Africa IGF, and the Southern Africa IGF). For more information see: https://afigf.org/ 103 The AfICTA is a private sector led alliance of ICT Associations, Multi-national Corporations, Companies, Organisations and individuals in the ICT sector in Africa. For more information see: https://www.aficta.africa/ 26 Technical Background Paper: Competition Advocacy for Digital Markets in Africa computing, and satellite technologies to achieve an Information society in Africa.104 The AfICTA builds partnerships with the African Union and other regional economic commissions, contributes to capacity building and data sharing on the Continent, and supports effective dialogues and relationships between policymakers, ICT professionals, and experts in the business, as well as academic, technical and civil society communities in Africa.105 GSM Association Sub-Saharan Africa:106 GSMA has a growing presence across Africa, with key activities including Mobile for Development (M4D) initiatives, public policy engagements, coordination of regional interest groups, and member services. Recent advocacy activities in the digital space, include an inaugural Annual Regional Conference for Economic Community of West African States – ECOWAS to explore how government, working together with industry, can create an enabling environment for the development and promotion of a digital regional economy.107 104 Among other things, the AfICTA maintains a comprehensive website and monthly newsletter that contains up-to-date information regarding recent developments in ICT and digital markets in Africa. See the February 2021 newsletter here: https://www.aficta.africa/about-us/about-aficta/74-aficta-newsletters/626-aficta-e-newsletter-february-15th-2021 105 The AfICTA also seeks to engage in international debates concerning the digital economy. For example, it signed on to the Multi-industry Statement on Cross-border Data Transfers & Data Localization Disciplines, submitted to the in World Trade Organization Negotiations on E-Commerce in January 2021. See: http://aficta.africa/Download/Multi%20Industry%20Statement%20on%20CrossBorder%20Data%20Transfers%20and%20Data% 20%20Localization.pdf 106 For more information, see: https://www.gsma.com/ 107 See details of the 2018 conference here: https://www.gsma.com/publicpolicy/economic-community-of-west-african-states- annual-regional-conference-2018 27 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Annex 1: Overview of Regional Competition Authorities and Networks COMESA Competition Commission (CCC)108 The CCC commenced operations in 2013,109 with a core mandate to enforce the Competition Regulations with regard to trade between Member States and administer a supra-national regime for competition enforcement, akin to that of the European Commission. The main functions of the Commission are to prohibit, monitor, and investigate anti-competitive business practices, control mergers and other forms of acquisitions in the Common Market, and mediate disputes between the Member States concerning anti-competitive conduct. The CCC’s advocacy mandate includes reviewing regional competition policy and reporting to the COMESA Council, facilitating the exchange of information and expertise between Member competition authorities, promoting national competition laws and institutions and cooperating with Member competition authorities on such, and developing and disseminating information about competition policy more generally. Coordination between the CCC and Member States is governed by MoUs.110 ECOWAS Regional Competition Authority (ERCA)111 Launched in early 2019,112 the ECOWAS Regional Competition Authority (ERCA) has adjudicatory and investigative powers pursuant to the ECOWAS Competition Rules adopted in 2008.113 Its core mandate is the promotion of competition in the region, by identifying and pursuing restrictive business practices, cartels, state aid, mergers, and acquisitions that undermine consumer welfare, market efficiency, and economic growth in West Africa. ERCA is also tasked with advocacy on competition and consumer protection issues, including market inquiries, capacity building of national officials, and support to national authorities during investigations. EAC Competition Authority (EACCA)114 EACCA has a mandate to enforce the EAC Competition Act 2006, promote and protect fair trade, and ensure consumer welfare in the community. In 2019, competition and communication experts from EAC member states, along with staff from the EAC Secretariat, met for a three-day conference to validate the EACCA Outreach and Advocacy Strategy (2019/20 – 2024/25).115 In developing the strategy, EACCA staff 108 COMESA Member Countries are Burundi, Comoros, Congo, Dem Rep., Djibouti, Egypt, Eritrea, Ethiopia, Kenya, Libya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Swaziland, Tunisia, Uganda, Zambia, and Zimbabwe. 109 The CCC was legally established under Article 6 of the COMESA Competition Regulations, adopted in 2004, and began operations in 2013. See: https://comesacourt.org/comesa-competition-commission/ and the Competition Regulations, available here: https://www.comesacompetition.org/wp-content/uploads/2014/04/2012_Gazette_Vol_17_Annex_12-COMESA- Competition-Regulations-as-at-December-2004.pdf 110 See: https://www.comesacompetition.org/?cat=58. For the example of Egypt, see https://www.comesacompetition.org/?p=1354. 111 ECOWAS Member Countries are Benin, Burkina Faso, Cabo Verde, Cote d'Ivoire, The Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo. 112 See ECOWAS (June 3, 2019), “ECOWAS Regional Competition Authority to Give Greater Impetus to Free, Healthy Trade,” available at: https://www.ecowas.int/ecowas-regional-competition-authority-to-give-greater-impetus-to-free-healthy-trade/. See also an announcement regarding the launch of ERCA here: https://www.ecowas.int/ecowas-launches-regional-competition- authority/ ECRA was legally established in 2008 pursuant to the Supplementary Acr A/SA.2/06/08 on the Establishment, Function of the Regional Competition Authority for ECOWAS (19 December 2008), available here: https://www3.nd.edu/~ggoertz/rei/rei260/rei260.36tt1.pdf 113 Supplementary Act A/SA.1/12/08 Adopting the Community Competition Rules and the Modalities of their Application within ECOWAS. 114 EAC Member Countries are Burundi, Kenya, Rwanda, Uganda and Tanzania. 115 For more information see: https://www.eac.int/press-releases/157-trade/1403-competition-experts-draft-eac-competition- authority-outreach-and-advocacy-strategy 28 Technical Background Paper: Competition Advocacy for Digital Markets in Africa noted that knowledge of competition policy is limited in the region, which limits enforcement. During the event, EACCA staff called upon national competition authorities of Member States to include advocacy in their activities in order to properly nurture their competitive environments. Although the strategy has been finalized, it has yet to be formally accepted by EAC Commissioners. WAEMU Commission Competition Directorate116 The WAEMU Competition Directorate has exclusive competence to enforce competition rules under WAEMU law, 117 and advocacy responsibilities rest primarily with national authorities.118 For example, national competition authorities are required to send quarterly reports to the Commission with information on market inquiries and issue annual reports on competition in the country. 119 As a result, there is limited capacity for collaboration between the parties on enforcement or advocacy initiatives. In addition, and with the exception of the competition authority of Burkina Faso, national competition authorities have been reluctant to cooperate with the WAEMU Commission due to the centralized approach. Southern African Development Community (SADC) 120 The SADC framework provides for cooperation on competition policy and enforcement between Members but includes no rules on competition as such and, correspondingly, SADC has no enforcement capacity in its member countries.121 The result is that SADC’s role with respect to competition issues in the region relates to advocacy. The Competition and Consumer Policy and Law Committee in the SADC Secretariat is tasked with fostering cooperation and dialogue among national competition authorities and encouraging convergence of laws, analysis, and common understanding across members. It also promotes the establishment of competition authorities in countries where they are lacking, as well as competition and consumer protection advocacy programs. Despite these responsibilities, SADC does not appear to have led any competition advocacy activities in the region specifically on telecommunications or digital issues. CEMAC Competition Commission122 The Economic and Monetary Community of Central Africa (CEMAC) Competition Commission is formally tasked with enforcing the CEMAC Community Competition Law of 1999, with the assistance of the Community Competitiveness Council. CEMAC’s competition authority is not yet functional.123 Africa Competition Forum124 116 WAEMU members include: Benin, Burkina Faso, Cote d'Ivoire, Guinea Bissau, Mali, Niger, Senegal. 117 Article 90 of the WAEMU Treaty. 118 However, both the WAEMU Commission and national authorities face significant resource limitations. See Pop, Georgiana; Corthay, Laurent Olivier (2018), Senegal - Better Markets for All through Competition Policy (English). Washington, D.C.: World Bank Group. Also see: Bakhoum, Mor and Molestina, Julia (2011). “Institutional Coherence and Effectivity of a Regional Competition Policy: the Case of the West African Economic and Monetary Union (WAEMU), ” Max Planck Institute for Intellectual Property and Competition Law Research Paper No. 11-17, pp. 10-11. 119 Directive N° 02/2002/CM/UEMOA Relative à la Coopération entre la Commission et les Structures Nationales de Concurrence des États Membres pour l’Application des Articles. 120 SADC Member Countries are Angola, Botswana, Congo (DR), Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. 121See the SADC Declaration on Regional Cooperation in Competition and Consumer Policies in September 2009. For more information: https://www.sadc.int/themes/economic-development/trade/competition-policy/ 122 CEMAC Members include: Cameroon, Central African Republic, Chad, Republic of Congo, Equatorial Guinea, and Gabon. 123 GSMA (2016), Competition Policy in the Digital Age, Case Studies from Asia and Sub-Saharan Africa, available at: https://www.gsma.com/publicpolicy/resources/competition-policy-digital-age-case-studies-asia-sub-saharan-africa 124 For more information, see: http://www.compcom.co.za/african-competition-forum/ 29 Technical Background Paper: Competition Advocacy for Digital Markets in Africa The ACF is an informal network of African national and multinational competition authorities, and was first launched in 2011 by 19 competition agencies and one African regional body. Today, the ACF has 34 members and is directed by a Steering Committee currently chaired by South Africa. The ACF plays a strong advocacy role in the region, primarily in awareness raising and capacity building. It is tasked with promoting the adoption of competition laws, building the capacity of new authorities, particularly on practical aspects of enforcement and competition assessments,125 and promoting implementation and procompetition regulation and reform. 125For example, between 2016 and 2018, it hosted six capacity-building workshops on topics such as cartel investigative skills, merger review, the preparation and execution of dawn raids, and agency effectiveness. See details of the 2nd biennial conference in 2018 at Marrakech, Morocco, and the speech of Chairperson Hardin Ratshisusu (also Deputy Chair of the Competition Commission of South Africa), as shared by the Botswana Competition and Consumer Authority, available at: https://www.competitionauthority.co.bw/african-competition-forum-elects-new-steering-committee-0. 30 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Annex 2: Awareness-raising through the World Bank – International Competition Network Competition Advocacy Contest The World Bank - International Competition Network (ICN) Competition Advocacy Contest showcases the efforts of government and non-government actors at the domestic level to promote competition. The Contest is annual and calls for country-level examples of competition advocacy by competition authorities, sector regulators, and other governmental bodies or non-governmental organizations in order to showcase the achievements of competition advocacy when it is done well —each year, at least one theme in the Contest relates to the digital economy. The Contest seeks to raise awareness regarding the potential of advocacy to further procompetition regulation and competition enforcement, particularly in the context of current market trends or challenges. Several themes are selected for each contest, one of which relates to the digital economy. For example, in the 2019-2020 Contest, theme 3 covered advocacy to promote pro-competition data regulation. The winning entry came from Portugal, showcasing the Portuguese Competition Authority’s Issues Paper on Digital Ecosystems, Big Data, and Algorithms. The paper addressed the impact that the digitalization of the economy has on competition enforcement, reminding private firms of their responsibility over the algorithms they use, given how simple rule-based pricing algorithms may foster tacit and explicit collusion. Following this initiative, the Authority announced the creation of a task force for the digital economy in 2020. In the 2018-2019 Contest, theme 4 covered advocacy to promote competitive digital infrastructure, digital platforms, and digital finance. That year, the winning entry came from Russia, involving an advocacy initiative by the Federal Antimonopoly Service of Russia to map and tackle restrictive regulations and anticompetitive behavior regarding roaming services in the country. As a result of the initiative, market players voluntarily changed their national roaming practices and dropped prices dramatically. By participating in and following the Contest, competition authorities can share their experiences, understand the impact of different approaches to competition policy and enforcement, and learn from one another in a collaborative forum. For more information on the Contest, see: https://www.worldbank.org/en/events/2019/11/11/2019- 2020-competition-advocacy-contest 31 Technical Background Paper: Competition Advocacy for Digital Markets in Africa Bibliography African Competition Forum – World Bank II. Forthcoming 2021. Institutional Design for Independent and Efficient Competition Authorities. Ensuring Sound Outcomes for Competition Policy in Africa. African Competition Forum. 2019. Competition challenges in African construction markets – A study across East and Southern Africa, available at: http://www.compcom.co.za/acf-publications/ African Competition Forum – World Bank I. 2016. Breaking Down Barriers : Unlocking Africa's Potential through Vigorous Competition Policy. 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Washington, D.C. : World Bank Group, available at: https://documents.worldbank.org/en/publication/documents- reports/documentdetail/809911557382027900/a-single-digital-market-for-east-africa-presenting- vision-strategic-framework-implementation-roadmap-and-impact-assessment 34 Technical Background Paper: Competition Advocacy for Digital Markets in Africa GOVERNANCE AND THE DIGITAL ECONOMY IN AFRICA MAIN REPORTS VOLUME 1 Digital for Governance: Reaching the Potential for the Digital Economy in Africa—Digital Tools for Better Governance VOLUME 2 Governance of Digital: Regulating the Digital Economy in Africa— Managing Old and New Risks TECHNICAL BACKGROUND PAPERS • ICT Procurement in Africa • Adoption of eGP in Africa • Vulnerabilities of ICT Procurement to Fraud and Corruption • Regulating Digital Data in Africa • Taxes and Parafiscal Fees on Digital Infrastructure Services in Africa • Corporate Governance and Transparency of State-Owned and State-Linked Digital Enterprises in Africa • State-Owned Enterprises in Digital Infrastructure and Downstream Digital Markets in Africa • Competition Advocacy for Digital Markets in Africa • Competition Policy in Digital Markets in Africa 35