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Regulation: Can the FCCPC navigate overreaching provisions of the FCCPA?

By ENYINNAYA UWADI

On January 30, 2019, Nigeria joined the ranks of nations with an all-encompassing Competition Law upon the enactment of the Federal Competition and Consumer Protection Act (FCCPA). This development which was long overdue received several accolades both locally and internationally, as Nigeria being Africa’s biggest economy lagged behind in this important law needed to ensure fair play in the market as well as regulate abuse of dominant and monopoly power by big firms.

Although it is expected that the enactment of the FCCPA and the creation of a new competition regulator known as Federal Competition and Consumer Protection Commission (FCCPC) will herald a new dawn and lead to the efficient competition regulation, there are fears that this may be a wishful thinking owing to the several challenges facing the FCCPC in this complex task, notable among them are some of the overreaching provisions of the FCCPA which shall be discussed hereunder.

 

Natural justice principle

Firstly, the provision of Section 38 appears to subject the right of over the decisions of the FCCPC to the regulations made by the same FCCPC, who will certainly be a respondent on appeal before the Competition and Consumer Protection Tribunal (CCPT). This provision which offends the natural justice principle of nemo judex in causa sua, in my opinion is counter-productive and defeats the overall purpose of justice. The regulations for appeals procedures to the CCPT ought not to be the responsibility of FCCPC whose decision is being appealed against, but that of a neutral body like the CCPT. Retaining this provision may lead to arbitrariness and misuse of power by the FCCPC as it may intentionally adopt complex appeal procedures while drafting of the regulations, which may systematically foreclose aggrieved parties from having recourse to appeal, thereby technically rendering its decision on some matters final, which I believe contravenes the purpose of the FCCPA.

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Secondly, is the provision of Section 2(3)(a) which provides that the FCCPA shall apply extraterritorially to a conduct by a Nigerian citizen or a person ordinarily resident in Nigeria. The literal interpretation of the above section is that the FCCPA applies outside Nigerian borders to any conduct by a Nigerian citizen or someone who resides in Nigeria even if the conduct in question was committed outside Nigerian territory. This means that a Nigerian citizen resident and trading only in the UK for example, could be investigated and prosecuted in Nigeria under this provision irrespective of the fact that his/her business is solely within the UK and has no bearing on Nigeria. Inasmuch as the extraterritorial provision, which is a feature of modern competition legislations globally, as provided under Section 2(3) are commendable, one is left to wonder how Section 2(3)(a) whose basis of application is the mere fact that the conduct in question was committed by a Nigerian citizen, will be successfully implemented.

Furthermore, as much as I commend the strong anti-cartel position of the FCCPA in criminalizing cartel activities, there is a high possibility that if a leniency program is not immediately adopted by the FCCPC, this will be an overambitious target. This is because the FCCPC as of today is not at a vantage position to discover, investigate and prosecute cartels, owing to the challenges of it being a new agency with a shortage of technical skills, while operating in a developing country with a weak competition culture. Indeed, competition authorities from developed countries with their expertise and funding still have some difficulties in detecting cartels. This led to the adoption of the leniency programs by developed countries in the fight against cartels. South Africa followed this example and recorded tremendous success in cartel prosecution following the adoption of the leniency program in 2004, but experienced a downward trend upon the criminalization of cartel in 2016. This should be a lesson for the FCCPC.

Enyinnaya is doctoral student at the University of Abuja. He holds an LLM degree in Energy Law from the Centre for Petroleum, Energy Economics and Law, University of Ibadan. At present he is undertaking an LLM degree in International Commercial Law with Competition Law and Regulation at the University of Reading, England, where his dissertation reviewed the FCCPA 2019.

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