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Towards a Tipping Point: The Botswana Competition Act and the Nemo Judex Rule
Published online by Cambridge University Press: 29 December 2014
Abstract
While the Botswana Competition Act creates a hierarchical relationship between the Competition Commission and the Competition Authority, it also confers on the Competition Commission judicial powers over competition cases involving the Competition Authority and/or third parties. Although the Competition Authority's decisions have not yet been tested before either the Competition Commission or the High Court, this article argues that the institutional structure underpinning the Competition Authority is not sound, as it opens the Competition Commission to potential attacks of bias and other constitutional challenges. This article therefore makes a case for the creation of two separate bodies: one concerned purely with adjudicating competition cases and the other with administrative oversight of the Competition Authority.
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- Research Article
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- Copyright © SOAS, University of London 2014
References
1 See the Botswana Competition Act no 17 of 2009, sec 4.
2 See id, sec 9.
3 In Re Pinochet [2000] 1 AC 61.
4 Khei v Botswana Meat Commission 2010 (3) BLR 649.
5 Keganne v Maunge and Another [2005] 2 BLR 480.
6 O'Brien, F “Nemo judex in causa sua: Aspects of the no-bias rule of constitutional justice in courts and administrative bodies” (2011) 2/2Irish Journal of Legal Studies 26Google Scholar.
7 See Botswana Competition Act, sec 5.
8 Ibid.
9 Id, sec 6.1.
10 Id, sec 10.1.
11 Id, sec 6.1.
12 Id, sec 6.2.
13 Id, sec 8.1.
14 Id, sec 7.2.
15 Id, sec 9.2.a.
16 Id, sec 19.2.
17 EM Fox and MJ Trebilcock “The design of competition law institutions and the global convergence of process norms: The GAL competition project” (New York University Law And Economics Working Papers, 2012) at 8.
18 Ibid.
19 Ibid.
20 See note 15 above.
21 The Act, sec 5.2.n.
22 Id, sec 5.2.o.
23 Id, sec 5.2.q.
24 See note 16 above.
25 Zambian Competition and Consumer Protection Act of 2010, sec 75.
26 See id, first sched, part 1.
27 Id, sec 6.1–4.
28 South African Competition Act of 1998, sec 19.
29 Id, sec 26.
30 Id, sec 36.
31 Id, sec 21.c.
32 Id, sec 27.c.
33 Id, sec 26.
34 Id, sec 22.1.
35 Id, sec 22.3.
36 Id, sec 23 provides that the minister “must appoint at least one person and may appoint other persons with suitable qualifications and experience in economics, law, commerce, industry or public affairs as Deputy Commissioner to assist the Commissioner in carrying out the functions of the Competition Commission”.
37 Id, sec 25.
38 See the Act, secs 6.1 and 10.3.
39 South African Competition Act, sec 26.2.
40 Id, sec 35.a and b.
41 The Act, sec 21.
42 R v Bingham Justices ex parte Jowitt 1974 QBD 193 at 197.
43 See the Act, sec 67.
44 See Fox and Trebilcock “The design of competition law institutions”, above at note 17 at 10.
45 Wils, WPJ “The combination of the investigative and prosecutorial function and the adjudicative function in EC antitrust enforcement: A legal and economic analysis” (2004) 27/2World Competition Journal 201Google Scholar at 216.
46 Ibid.
47 Ibid.
48 See Fox and Trebilcock “The design of competition law institutions”, above at note 17 at 7.
49 Id at 16.
50 Ibid.
51 See note 31 above.
52 See note 3 above.
53 [2006] 1 WLR 781 at 788.
54 South African Competition Act, sec 20.1.a.
55 Id, sec 20.1.b.
56 Minister of Economic Development and Others v Competition Tribunal and Others, South African Commercial, Catering and Allied Workers Union (SACCAWU) v Wal-Mart Stores Inc CAC case no 110/CAC/Jul 11.
57 [1991] 2 SCR 114 at 117.
58 CAP 52.01 Laws of Botswana.
59 Established under sec 6 of the Botswana Unified Revenue Service Act, CAP 53.03 Laws of Botswana.
60 Established under sec 90 of the Botswana Income Tax Act.
61 See Fox and Trebilcock “The design of competition law institutions”, above at note 17 at 9.
62 [1969] 1 QB 577 at 599.
63 See for instance R v Sussex Justices ex parte McCarthy [1924] 1 KB 256.
64 (1968) BLR 4.
65 R v Sussex Justices, above at note 63 at 259.
66 Ali Khan, above at note 64 at 7.
67 2010 (1) BLR 179.
68 1993 AC 646 at 670.
69 Art 6.1 of the European Convention on Human Rights provides that “in the determination of his civil rights and obligations or of a criminal charge against him, everyone is entitled to a fair hearing and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
70 (1894) 2 QB 667.
71 Above at note 65.
72 Porter v Magill [2002] 2 AC 357 at 367.
73 (2000) 174 ALR 655 at 669.
74 Supreme Court civil appeal no 92/97, Jamaica.
75 Id at 35.
76 Act no 9 of 1993.