CAK leads the way in modernisation of African competition regimes

On 1 September 2020, the Competition Authority of Kenya (CAK) ceased to accept physical antitrust and merger filings and will exclusively accept submissions through its e-filing portal. The adoption of this paperless system is notable when compared to the burdensome and formalistic requirements of regimes in other African jurisdictions that can, in particular, significantly contribute to the time and cost in obtaining merger clearances across the continent. While many African antitrust authorities have simplified processes and embraced technology during the Covid-19 pandemic, the CAK’s adoption of e-filing processes highlights the need for permanent changes in order to facilitate the ease of doing business across Africa.

The CAK implemented the e-filing portal on 1 July 2019 in relation to all submissions regarding restrictive trade practices, abuse of buyer power and consumer complaints. Until 1 September 2020, the CAK had continued to receive physical filings together with electronic submissions. The portal enables applicants to electronically submit all filing documents as well as being able to check on the progress of a matter. According to the CAK, the introduction of the e-filing portal has reduced the time taken necessary to review to process files by eliminating the handling and moving of physical copies of documents.

The ease of submitting documents via a portal is in sharp contrast to the requirements of other African jurisdictions. In particular, some jurisdictions require original certified copies of an extensive list of documents to be submitted, while other jurisdictions have burdensome apostille requirements. In the context of international transactions, the completion of these formalities as well as couriering original documents across the globe can take significant time.

The Covid-19 pandemic has however lead to some African antitrust authorities modifying processes and embracing technology. A range of authorities now accept filings via email. For example, the COMESA Competition Commission has dispensed for the time being with the requirement to submit a hard copy of the filing.

While web conferencing has replaced conference calls and face-to-face meetings, the use of technology for other purposes has had more profound implications. For example, the use of virtual hearings by the South African Competition Tribunal has provided accessibility to this critical forum to a much greater audience. While these reforms are welcome, they are limited to only some regimes and, even in relation to these jurisdictions, it is not clear whether they will be adopted on a permanent basis.

There is a strong case that competition regimes should be modernised in order to better embrace technology. In this regard, the CAK’s adoption of e-filing processes highlights the need for fundamental changes to antitrust regimes in order to facilitate the ease of doing business across Africa. Even though it is too early to quantify the full impact of the automation of services by the CAK, it nonetheless demonstrates that innovation across the continent must be considered beyond implementing strategies to cope with the immediate social distancing requirements arising from the Covid-19 pandemic.