This week we explore the current status and the potential role of competition law in South Sudan and how it relates to the telecoms sector. While taking note of the absence of a national competition law and agency, we demonstrate the role of Regional Competition Regimes (RCR) such as the East African Community Competition Authority (EACCA) in addressing the vacuum at national level. We further identify the potential of similar RCRs and such continental institutions as the Africa Union (AU) and African Continental Free Trade Area (AfCFTA). While recognising the roles of regional and continental competition laws, the report emphasizes the need for a homegrown competition law for South Sudan modeled on the Kenya competition regime. The Kenya model is selected due to its relative maturity within Africa having been one of the first three to enact national-level competition legislation.
South Sudan does not have a national competition law. Competition is regulated using industry-specific guidelines such as the National Communications Competition Regulation 2016 that prescribes remedies for anticompetitive practices and the Communication Competition Regulation of 2016 to guide dispute resolution of cases of abuse of dominance. The case may therefore be made for continued application of ex-ante regulation for the telecommunications sector as it is still in the formative stages with limited regulatory capacity, an ineffective market to justify adopting an ex-post approach or subject it only to general principles of competition law.
That notwithstanding, according to [T. Buthe and V.K. Kigwiru, 2020], competition law seeks to encourage and safeguard competition in markets by making anti- competitive agreements and conduct illegal and to constrain economic power by punishing its abuse and by regulating mergers and acquisitions to reduce the risk of monopoly and oligopoly. There have been many reports of cartels and anti-competitive practices by both indigenous and foreign companies across various sectors in South Sudan that justify enactment of a national competition law and resultant competition agency for enforcement.
To its credit, as a member of the East Africa Community (EAC), South Sudan has adopted the provisions of the 2006 EAC Competition Act that covers abuse of market dominance, mergers, restrictive trade practices and subsidies, as well as public procurement and consumer welfare. This, according to (Karanja-Ng’ang’a 2017), would enable South Sudan to address the EAC-level competition practices though the EACCA and “its decisions are legally binding upon the member state NCAs and national courts”. Further, as a signatory to the African Continental Free Trade Area (AfCFTA) Agreement, the Government of South Sudan, with assistance from the UNDP started a process to develop a Competition Bill in 2022 in conformity with relevant WTO provisions, EAC 2006 Competition Act and competition provisions in the AfCFTA competition protocol. This was initiated with the objective of achieving the commitments under the South Sudan National Development Strategy (NDS) 2021 - 2024 that also prioritizes development of telecommunications for digital transformation.
While the application and adoption of regional, continental and international competition would result in gains for South Sudan, a study by [Fox, Eleanor; 2013] in A Competition Law for Africa calls for harmonization and strengthening of competition laws across the continent for benefits to accrue effectively. The same position is taken on the AU institutions and law in harmonizing competition principles across overlapping memberships such as in the case of Kenya’s membership in two RCRs (COMESA and EAC) that South Sudan is expected to adopt. The two RCRs have different models of cooperation and enforcement across leniency programmes, dawn raids and informant rewards schemes.
Further, there is a need for homegrown legislation for South Sudan addressing its specific competition issues because obstacles to “competition faced by each country differ with their stage of economic development”. This would require multidisciplinary analysis of the post-conflict context of the nation’s economy, politics and laws.
The process can be modeled on the case of Kenya’s application of national and supranational competition law. This model has been explored by a delegation from South Sudan’s Ministry of Trade, Industry to the Competition Authority of Kenya (CAK) which is supporting South Sudan to identify legal gaps and prepare for the challenges of implementing a new national competition agency. The same was stated in Kenya’s Country Statement on International Cooperation of Competition Authorities in the Fight Against Cross-Border Anti-Competitive Practices and Mergers at UNCTAD Session in Geneva. Of interest to the Telecommunications sector in South Sudan would be the exchange of information that aids investigations between bi-lateral or regional competition authorities. CA of Kenya highlighted the cooperation with the Competition Commission of South Africa.
South Sudan would therefore need to strike a balance between homegrown national legislation, regional competition obligations and continental commitments.