The Fair Competition Act and Impartiality of the Fair Competition Commission in Mainland Tanzania

Abstract

The Fair Competition Act, (No 8 of 2003) establishes the Fair Competition Commission (FCC) and the Fair Competition Tribunal (FCT) to enforce competition law in Mainland Tanzania. Sections 68, 69 and 71 of the Act give powers to the FCC to initiate a complaint on restrictive trade practices as provided under part II of the Act, investigate, prosecute and adjudicate dispute on it, while section 84 vests appellate powers in the FCT whose decision is final.

This article is a critique on the FCC’s impartiality. It argues that, although powers of the FCC were unsuccessfully challenged in two cases, namely, the Tanzania Cigarette Company case and the Tanzania Breweries case, such concentration of powers to one organ impairs the principles of natural justice (rule against bias) as suggested by the experience from other jurisdictions.

The methodology employed was desk study where cases, statutes and rules were reviewed and the study eventually recommended for amendment of the Competition Act to separate investigative and prosecutorial functions from adjudicative functions of the FCT.

It further recommended that, the FCC remains with its initiation, investigation and prosecution powers while the FCT becomes the tribunal of first instance in competition disputes and an appellate tribunal in mergers issues.