Wednesday, August 17, 2022

Competition commissioners, officers should be immune from prosecution ÔÇô Kaira

The Chief Executive Officer of the Competition Authority, Thula Kaira, says that the Competition Act needs to be amended to make the Authority more effective.

Writing in the latest edition of the Global Competition Review, an international antitrust and competition law journal, Kaira says that while the Act has only been in force for two years, it has become clear that some of its areas require immediate amendment.

“These areas affect the vigour with which we are able to enforce the competition law. If we are to deal effectively with cartel enforcement for instance, one obvious feature ripe for change is that currently individuals involved in the conduct of cartels are not obviously culpable under the Act. Cartel offences, even those in the hard-core category such as bid rigging, only affect enterprises and not individuals, with the fine based on the turnover of the enterprise,” Kaira says.

He quotes a provision in the Act that says that the amount of a penalty imposed on an offender shall not exceed 10 percent of the turnover of the enterprise during the breach of the prohibition up to a maximum of three years. Noting that the fine itself is not mandatory but optional, Kaira argues that “this is not a desirable legal framework for per se offences and especially not for hard-core offences.”

He also looks askance at Section 43 of the Act whose wording he deems to potentially leave room for the Competition Commission to be restrained by business or sentimental considerations that would make it most unlikely that the latter would impose punitive fines on businesses.

In execution of their official duties, heads of state, judges and members of parliament and diplomats are immune from prosecution. Kaira says that it was a “glaring omission” that the Competition Authority attracts neither personal indemnity nor immunity.

“Where officers of the Authority and members of the Commission carry out their statutory functions in good faith and due care, we believe that they should not be subject to lawsuits in their personal capacity,” he writes an article titled “The Competition Authority in Botswana towards 2014.”

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