Kenya: Comments on the Draft Competition Bill

Kenya: Comments on the Draft Competition Bill - Civic Space

ARTICLE 19 led a group of Kenyan civil society organisations in commenting on the draft Competition (Amendment) Bill 2024 at the invitation of the Competition Authority of Kenya. We welcome the Authority’s efforts to build on international best practices of digital markets regulation, and comment on areas where the Draft Bill can still be improved.

Evidenced by recent and proposed legislation in the EU, Brazil, and India, there is increasing global recognition that pro-competitive regulation of digital markets plays a crucial role in protecting not just the economy but also democracy and human rights. We welcome the Competition Authority of Kenya’s initiatives to build on the mechanisms traditionally at the disposal of antitrust authorities to better safeguard competitive processes in the digital age.

The draft Competition (Amendment) Bill 2024 (the Draft Bill) builds on a number of international best practices, with the amendment including a new definition of digital activities. It also identifies factors that typically grant a significant market position to companies below the 40% market share threshold.

We also commend the introduction of a new provision on abuse of superior bargaining position, but if this and other new additions to the Authority’s toolkit are to be effective in practice, the Authority must be equipped with sufficient deterrent force – including higher fines as penalties for abuse. We are also concerned by the Draft Bill’s proposal to change the qualification of consumer bodies relevant to the Competition Act from being ‘recognised’ by the Competition Authority to ‘accredited’, as it might hamper the activities of consumer bodies, increasing the risk of consumer exploitation. Instead, the involvement of civil society organisations and other representatives of consumers should be widened, not restricted.

Finally, to ensure media sustainability, it is crucial to develop and enforce mechanisms – including regulatory frameworks, negotiation platforms, revenue sharing models, and collective bargaining – that ensure fair pricing of news content used by technology and artificial intelligence (AI) companies. The Competition Authority should fully enforce these mechanisms through monitoring compliance, addressing disputes, and imposing penalties on tech companies that fail to meet compensation requirements.

ARTICLE 19 stands ready to assist the Competition Authority as the Draft Bill progresses.

Read the full submission