By the time it came onto the scene, the arrival of the Competition Authority in Botswana was well overdue.
In fact, when the law establishing it was brought before Parliament, there was universal consensus that the Authority had arrived probably decades later than many had wished.
Everybody involved in business had a story to tell about how things would have been much different, and indeed much better, had the Authority arrived earlier.
The public had, over the years, watched helplessly as businesses connived and colluded amongst themselves to undermine competition, fix prices and, in the process, rob the public and, for a greater part, the government.
Before the Competition Authority came into place, there had occurred many deals, like mergers and acquisitions, which, even to an untrained eye, would not be allowed.
Some such deals created monopolies, which by the time the Authority arrived had become so entrenched such that breaking them down would never be easy.
But as it was, government was helpless as there was no law to regulate such mergers and acquisitions.
We are part of those who subscribe to the notion that since it arrived, the Authority has done all it can to make its presence felt.
We think there is much more to be done.
In carrying out its mandate, which for the greater part is quasi-judicial in as far as it relates to adjudication and coming up with rulings, the Authority will need public trust and confidence.
For now, there is nothing to suggest that the public is not giving the authority such confidence and faith.
What is important is that going forward, the Authority should through its action reassure the public that it is balanced, ethical, fair and indeed above board.
We need not tell the Authority just how important it is for it to maintain the integrity it has thus far exuded.
This is because any slightest doubt from the public will have far reaching and potentially irreparable damage on the Authority’s integrity.
But that is not the purpose of this commentary.
Rather, our intention is to point out that in as much the Authority is an immensely welcome initiative by government, it would in the medium to long terms be deemed counterproductive if, in executing its mandate, which is to enhance competition, found to be stifling and impeding business growth, innovation, and creativity.
To avoid this, the Authority itself needs to always make recommendations to Government for a review of the Law so that Botswana stays well in line with ever changing business trends.
Given the fast changing pace of business environment, what was good at the time when the Competition Law was conceived and passed only a few years ago, may not necessarily be good today.
In fact, the truth is that the business may turn to view such clauses as prohibitive, archaic and not worth upholding.
The upshot of it is in response to such a scenario, businesses may start crafting new ways with which to circumvent the law, which by itself cannot be a good thing.
This, therefore, calls for constant review of the Law to make it business friendly but more crucially up-to-date and appropriate, especially in the face of ever increasing global competition for international capital.
Investors are often very shy to settle in jurisdictions where there are perceptions that there are laws that stand in the way of business growth.
One thing that immediately comes into relating to this Law is a requirement that any deal with a threshold of P10 million should be reported to the Authority.
We have no idea what informed the figure.
Our suspicion is that while the threshold could possibly have been relevant at a certain point in history, it no longer is given today’s business dynamics.
P10 million threshold is too low and may, with time, deter businesses wishing to access Botswana by way of acquisitions and, possibly, mergers.
From our investigations, the threshold in South Africa is 500 million Rands.
But even if an argument may be adduced that South Africa is a much bigger economy and market, we are of the view that the disparity is indefensible and has the potential to work against the very ideals for which Competition authority was established in the first instance.
