CHAPTER 285
FAIR COMPETITION ACT

[PRINCIPAL LEGISLATION]

ARRANGEMENT OF SECTIONS

   Section

Title

PART I
PRELIMINARY PROVISIONS

   1.   Short title.

   2.   Interpretation.

   3.   Establishment of the Fair Competition Commission.

   3A.   President's power to remove a member from office.

   3B.   Conflict of interest.

   3C.   Codes of conduct.

   3D.   Employees and consultant.

   3E.   Meetings of the Competition Commission.

   3F.   Delegation.

   3G.   Confidentiality.

   3H.   Funds of the Commission.

   3I.    Accounts and financial audit.

   3J.   Audit of performance.

   3K.   Annual report.

   3L.   Preparation of a report.

PART II
ESTABLISHMENT OF THE FAIR COMPETITION TRIBUNAL

   4.   Establishment and composition of the Tribunal.

   5.   Judgment of Tribunal and execution of judgment

   6.   Functions and procedure of Tribunal.

   7.   Registrar and other staff of the Tribunal.

   8.   Expenses and allowances.

   9.   Obstruction of Tribunal.

   10.   Rules of the Tribunal.

   11.   Procedure on appeals to the Tribunal.

   12.   Hearing and determination of appeal.

   13.   Tribunal may refer appeals back for reconsideration.

   14.   Provisions pending determination of appeal.

PART III
PROVISIONS RELATING TO RESTRICTIVE TRADE PRACTICES

   15.   Meaning of "restrictive trade practice".

   16.   Categories of trade agreements declared to be restrictive trade practices.

   17.   Application to trade associations.

   18.   Refusal or discrimination in supply as a restrictive trade practice.

   19.   Specific instances of refusal or discrimination in supply as a restrictive trade practice.

   20.   Predatory trade practice to repress competition prohibited.

   21.   Collusive tendering prohibited.

   22.   Collusive bidding at auction sale an offence.

   23.   Complaints regarding restrictive trade practices.

   24.   Power of the Chairman to investigate complaints.

   25.   Powers of the Chairman in respect of restrictive trade practices.

   26.   Order regulating restrictive trade practices.

   27.   Actions following joint trade practices of several persons.

   28.   Appeals from the Chairman's order.

   29.   Offence and penalty.

PART IV
CONTROL OF MONOPOLIES AND CONCENTRATION OF ECONOMIC POWER

   30.   Interpretation.

   31.   Identifying unwarranted concentrations of economic power.

   32.   Orders of the Minister to dispose of interests.

   33.   Appeals from the Minister's order.

   34.   Offence and penalty.

   35.   Minister's approval required for mergers and takeovers.

   36.   Application to the Chairman for merger or takeover.

   37.   Investigation by the Chairman.

   38.   Criteria for evaluating applications for approval.

   39.   Order of the Minister on mergers and takeovers.

   40.   Appeals from orders of the Minister.

PART V
REGULATION AND DISPLAY OF PRICES

   41.   Interpretation of Part V.

   42.   Power to fix maximum prices.

   43.   Power to prescribe percentage fixed goods.

   44.   Determination of cost.

   45.   Orders to be laid before the National Assembly.

   46.   Auction sales.

   47.   Publicity of orders and lists of maximum prices and charges.

   48.   Traders, etc., required to display maximum prices.

   49.   Traders to supply invoice.

   50.   Books of account.

PART VI
CONSUMER PROTECTION

   51.   Interpretation.

   52.   Misleading or deceptive conduct.

   53.   Unconscionable conduct.

   54.   False or misleading representation.

   55.   Cash price to be stated in certain circumstances.

   56.   Misleading conduct.

   57.   Certain misleading conduct in relation to services.

   58.   Bait advertising.

   59.   Accepting payment without intending or being able to supply as ordered.

   60.   Misleading representations about certain business activities.

   61.   Harassment or coercion.

   62.   Application of provisions of this Part to prescribed information.

   63.   Warning notice to public.

   64.   Product safety standards.

   65.   Product information.

   66.   Power of Minister to declare product safety information.

   67.   Compulsory product recall.

   68.   Compliance with product recall order.

   69.   Loss or damage caused by contravention of product recall order.

   70.   Notification of voluntary recall.

   71.   Copies of certain notices to be given to supplier or be published in certain newspapers.

   72.   Conflict of laws

   73.   Application of this Part to contracts not to exclude or modify.

   74.   Limitation of liability for breach of certain conditions or warranties.

   75.   Implied undertaking as to title encumbrances and quiet possession.

   76.   Supply by description.

   77.   Implied undertakings as to quality or fitness.

   78.   Supply by sample.

   79.   Liability for loss or damage from breach of certain contracts.

   80.   Warranties in relation to the supply of services.

   81.   Action in respect of unsuitable goods.

   82.   Action in respect of false descriptions.

   83.   Action in respect of goods of unmerchantable quality.

   84.   Action in respect of non-correspondence samples, etc.

   85.   Action in respect of failure to provide facilities for repairs or parts.

   86.   Action in respect of non-compliance with express warranty.

   87.   Right of seller to recover against manufacturer or importer.

   88.   Time for commencing actions.

   89.   Application of division not to be excluded or modified.

   90.   Limitation in certain circumstances of liability of manufacturer to seller.

   91.   Rescission of contracts

   92.   Standard form contract.

   93.   Costs.

PART VII
GENERAL PROVISIONS

   94.   Power to obtain information.

   95.   General powers of the Chairman.

   96.   Delegation of powers.

   97.   Power to revoke or vary permits, etc.

   98.   Certificates.

   99.   Power to enter and search.

   100.   Power of entry and seizure.

   101.   Power to search vehicles and seize goods.

   102.   Procedure on seizure of goods.

   103.   Retention and disposal of seized goods.

   104.   Offence to sell or purchase above maximum price.

   105.   Refusal to sell goods.

   106.   Illegal conditions.

   107.   Offence to obstruct authorities.

   108.   Penalties.

   109.   Burden of proof.

   110.   Actions by consumer organisations.

   111.   What is not a defence.

   112.   Protection against liability in certain cases.

   113.   Chairman to consult other bodies.

   114.   General penalty.

   115.   Regulations.

   116.   [Repeal of Act No. 19 of 1973.]

CHAPTER 285
THE FAIR COMPETITION ACT

An Act to encourage competition in the economy by prohibiting restrictive trade practices, regulating monopolies, concentrations of economic power and prices, to protect the consumer and to provide for other related matters.

[12th July, 1996]

Acts Nos.
4 of 1994
11 of 2001

PART I
PRELIMINARY (ss 1-3L)

1.   Short title Act No. 11 of 2001 s. 51 and 4th Sch.">

   This Act may be cited as the Fair Competition Act.

2.   Interpretation Act No. 11 of 2001 s. 51 and 4th Sch.">

   In this Act, unless the context requires otherwise–

   "Authority" means the Surface and Marine Transport Regulatory Authority Act *, the Energy and Water Utilities Regulatory Authority Act *, or any other Authority on which its functions or appeals will be dealt with by the Commission;

   "business records" include–

   (a)   accounts, balance sheets, vouchers, records, minutes of meetings, contracts, files, instructions to employees, and other persons, and includes a person carrying on business as a broker;

   (b)   any information recorded or stored by means of a computer or other device and any material subsequently derived from information so recorded or stored;

   "Chairman" means the Chairman for Fair Competition appointed under section 3;

   "Commission" means the Fair Competition Commission established under section 3;

   "commission agent" means any person who receives or orders goods on account of others, or who solicits orders for goods on behalf of other person, and includes a person carrying on business as a broker;

   "competitor" means a person who produces, distributes, or supplies substantially similar goods or services, at the same stage of production or distribution of goods or supply of services, in relation to another person;

   "consent agreement" means an agreement concluded pursuant to subsection (3) of section 25;

   "consumer" includes any person who purchases or offers to purchase goods or services otherwise than for the purpose of resale; but does not include a person who purchases any goods or services for the purpose of using them in the production or manufacture of any other goods or articles for sale;

   "customer" means a person who purchases goods or services from another person;

   "distribution" includes any act by which goods or services are sold or supplied by one person to another person;

   "distributor" means a person who engages regularly in distribution or who participates in some act or set of acts of distribution which is the subject of an action under this Act;

   "downstream processor" means a manufacturer who adds value to goods supplied or manufactured by another person;

   "fair competition" means any practice related to the carrying on of any trade and includes anything done or proposed to be done by any person which affects or is likely to affect the method of trading of any trader or class of traders or the production, supply, or price, in the course of trade, or any property whether real or personal, or of any services;

   "fair market price" means a price at which the market for goods or services clears with sufficient competition without the occurrence of shortages or build up excess inventories;

   "goods" include–

   (a)   ships, aircraft and vehicles;

   (b)   animals, including fish;

   (c)   minerals, trees and crops, whether on, under, or attached to land or not; and

   (d)   gas or electricity;

   "intermediate goods" means goods used as inputs in manufacturing;

   "manufacture" or manufacturing" includes any artificial process which transforms goods in order to add value to them for the purpose of resale and any operation of packing or repacking not linked to another form of transformation within a single enterprise;

   "member" means a member of the Fair Competition Commission;

   "Minister" means the Minister for the time being responsible for the Fair Competition Commission;

   "monopoly undertaking" means a dominant undertaking, or an undertaking which, together with not more than two other independent undertakings–

   (a)   produces, supplies, distributes or otherwise controls not less than one-third of the total goods of any description that are produced, supplied or distributed in the country or any substantial part thereof; or

   (b)   provides or otherwise controls not less than one-third of the services of any category that is rendered in the country or any substantial part thereof;

   "price" in relation to the sale of goods or to the performance of services, every valuable consideration whether direct or indirect, and includes any consideration which in effect relates to the sale of the goods or services, although ostensibly relating to any other matter or thing;

   "reasonable unit cost" means the average total cost of producing goods or services at the producers normal scale of output, with all productive factors being remunerated at fair market rates;

   "retail trade" means a form of distribution by which goods are customarily sold to consumers rather than for the purpose of resale or manufacturing and includes any act or set of acts of sale to consumers which is the subject of an action under this Act;

   "retailer" means a person regularly engaged in retail trade, or who participates in some act or set of acts of retail trade which is the subject of an action under this Act;

   "sale" includes an agreement to sell or offer for sale, and an "offer for sale" shall be deemed to include the exposing of goods for sale the furnishing of a quotation, whether verbally or in writing,and any other act or notification by which willingness to enter into any transaction for sale is expressed;

   "service" includes the sale of goods, where the goods are sold in conjunction with the rendering of a service;

   "supplier" in relation to a service, includes a person who performs the service and a person who arranges the performance of the service, and in relation to goods or services, it means a person who sells or supplies goods or services to another person;

   "supply" in relation to goods, includes supply or resupply by way of sale, exchange, lease, hire or hire purchase;

   "trade" includes commerce;

   "trade association" means a body of persons, whether incorporated or not, which is formed for the purposes of furthering the trade interests of its members or of persons represented by its members;

   "Tribunal" means the Fair Competition Tribunal established by section 4;

   "wholesale trade" means a form of distribution by which goods are customarily sold for the purpose of resale or as inputs in manufacturing and includes any act or set of acts of sale for either of those purposes which is the subject of an action under this Act.

3.   Establishment of the Fair Competition Commission Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) There is hereby established a Commission to be known as the Fair Competition Commission.

   (2) Subject to the provisions of this Act, the Fair Competition Commission shall be responsible for the control, management and efficient performance of the functions of the Commissions under this Act.

   (3) The Fair Competition Commission shall be a body corporate with perpetual succession and subject to this Act and shall–

   (a)   be capable of suing and being sued in its corporate name;

   (b)   be capable of acquiring, holding and disposing of real and personal property;

   (c)   have power to exercise and perform the powers and functions conferred on it by or under this Act;

   (d)   have power to do and suffer all such other acts and things a body corporate may by law do and suffer.

   (4) The common seal of the Fair Competition Commission shall be judicially noticed and shall be duly affixed if witnessed under the hand of the Chairman or Secretary of the Fair Competition Commission.

   (5) The Fair Competition Commission shall be constituted by five members as follows–

   (a)   a full-time Executive Chairman who shall be appointed by the President;

   (b)   four other members who may be full-time or part-time as determined by the Minister at the time of their respective appointments,

and by such number of associate members as the Minister may from time to time approve.

   (6) The Chairman, any other full-time members and any full-time associate members shall not engage in any other paid employment or remunerated activities during their terms to office.

   (7) A person other than a member or associate member of the Fair Competition Commission shall be appointed as Secretary of the Fair Competition Commission and, unless the context requires otherwise, the provisions of this Act relating to the appointment and removal of members shall also apply to the Secretary.

   (8) The members of the Commission shall be appointed by Minister and, subject to this section, shall be appointed–

   (a)   for fixed terms of between three and five years as specified in the instrument of appointment; and

   (b)   on such other terms and conditions as determined by the Minister at the time of the appointment.

   (9) Before appointing a person as a member of the Fair Competition Commission, the Minister shall satisfy himself that the person is qualified for the appointment because of his knowledge of, or experience in an industry, commerce, economics, law or public administration or in any other related field.

   (10) With the approval of the Minister, the Chairman may from time to time appoint persons with special expertise relevant to the functions of the Fair Competition Commission as associate members.

   (11) The terms and conditions of appointment of an associate member shall be as determined by the Fair Competition Commission subject to the Minister's approval.

   (12) The members of the Fair Competition Commission may not be removed from office except in accordance with the provisions of section 3A of the Act.

   (13) Members may resign by giving written notice of resignation to the Minister.

   (14) Members shall be eligible for reappointment for one further consecutive term but shall not be eligible for re-appointment thereafter.

   (15) No civil liability will attach to any member, associate member or employee of the Commission in his personal capacity as a result of any act or thing done in good faith in the performance or exercise, or purported performance or exercise, or any function or power of the Commission.

3A.   President's power to remove a member from office Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The President may remove a member (which, for the purposes of this section, includes the Executive Chairman) from office at any time if–

   (a)   the member is declared bankrupt, takes the benefit of any law for the relief of insolvent debtors or assigns the member's remuneration for the benefit of creditors;

   (b)   the member is convicted of a criminal offence;

   (c)   the President decides the member should be removed because of a conflict of interest, whether or not the member is required by section 3B to resign;

   (d)   the President decides the member incapable of carrying out the member's duties because of ill health or physical or mental impairment;

   (e)   the member fails to attend at least two thirds of all meetings of the Authority in any period of twelve consecutive months; or

   (f)   the member has committed a material breach of a code of conduct to which the Commission is subject or a material breach of the provision of this Act.

   (2) Before removing a member from office the President shall inform a member in writing stating the grounds for removal.

3B.   Conflict of interest Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) A member or employee of the Commission has a conflict of interest for the purposes of this Act if that person has or acquires any pecuniary or other interest that could conflict with the proper performance as a member or employee of the Commission.

   (2) If at any time a member of the Commission has a conflict of interest in relation to–

   (a)   any matter before the Commission for consideration or determination; or

   (b)   any matter the Commission could reasonably expect might come before it for consideration or determination,

the member shall immediately disclose the conflict of interest to the other members of the Commission and refrain from taking part, or any further part, in the consideration or determination of the matter.

   (3) Where the Chairman becomes aware that a member has a conflict of interest in relation to any matter before the Commission, the Chairman shall direct the member to refrain from taking part, or taking any further part, in the consideration or determination of the matter.

   (4) If the Chairman has a conflict of interest he shall, in addition to complying with the other provisions of this section, disclose the conflict to the Minister by written notice.

   (5) Upon the Commission becoming aware of any conflict of interest it shall make a determination as to whether in future the conflict is likely to interfere significantly with the proper and effective performance of the functions and duties of the member or the Commission and the member with the conflict of interest must not vote on this determination.

   (6) Where the Commission determines that the conflict is likely to interfere significantly with the member's proper and effective performance as provided in subsection (5), the member shall resign unless the member has eliminated the conflict to the satisfaction of the Commission within 30 days.

   (7) The Commission must report to the Minister any determination by the Commission that a conflict is likely to interfere significantly with performance as above and whether or not the conflict has been eliminated to the satisfaction of the Commission.

   (8) The Annual Report of the Commission must disclose details of all conflicts of interest and determinations arising during the period covered by the Report.

3C.   Codes of conduct Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Commission shall adopt a code of conduct prescribing standards of behaviour to be observed by the members and employees of the Commission in the performance of their duties, within twelve months of the commencement of this Act.

   (2) Subject to subsection (1), before adopting any code of conduct the Competition Commission shall publish it in the Gazette.

   (3) The Fair Competition Commission shall include in its Annual Report a report on compliance with the codes during the period covered by the Annual Report.

   (4) Codes of conduct adopted or prescribed under this section shall be binding on the Fair Competition Commission and its employees.

3D.   Employees and consultant Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Competition Commission shall employ such staff as it considers appropriate to enable it to perform its functions and exercise its powers.

   (2) The Competition Commission may engage consultants and experts, as it considers appropriate, to assist it to perform its functions and exercise its powers.

   (3) The Competition Commission shall establish a competitive selection procedure for the appointment of all employees, consultants and experts.

   (4) The Competition Commission shall comply with the competitive selection procedure established under subsection (3) whenever it appoints employees, consultants or experts unless, because of the urgency of the appointment or other special circumstances, the procedure is not reasonably practical in any particular case.

   (5) The terms and conditions on which the Competition Commission employs staff and engages consultants and experts shall be as determined by the Commission but must include the following–

   (a)   an employee, consultant or expert must, without delay, notify the Competition Commission in writing of any conflict of interest as soon as it arises and failure to comply with this requirement, whether wilfully or inadvertently, will be a ground for immediate dismissal;

   (b)   where the Competition Commission becomes aware of a conflict of interest, whether as a result of a notification under paragraph (a) or by an other means, the Competition Commission may, in its absolute discretion–

      (i)   direct the person not to participate in the consideration of any matter in relation to which the person has the conflict of interest and, in that case, the person must comply with the direction; or

      (ii)   dismiss the person.

   (6) Before employing or engaging any person, the Commission must obtain from the person a written declaration of any existing conflict of interest.

   (7) Persons employed by the Fair Competition Commission as full-time employees shall not undertake any other paid employment or remunerated activities.

   (8) The Fair Competition Commission may enter into agreements with government departments and other government authorities and agencies to share the services of particular employees, as the Chairman considers appropriate.

   (9) The Fair Competition Commission will include in its Annual Report a report of its competitive selection procedure and its employment practices.

3E.   Meetings of the Competition Commission Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Fair Competition Commission shall hold meetings not less than six times in any period of twelve months and the interval between successive meetings shall not on any occasion exceed two months.

   (2) The Secretary shall convene meetings of the Commission as directed by the Chairman or if requested in writing by at least half of the members.

   (3) Subject to subsection (1) and (2), the Chairman may convene meetings of the Competition Commission, after consultation with the members, at such times and places as he or she sees fit.

   (4) The Chairman shall preside at meetings of the Fair Competition Commission and the members may appoint from amongst themselves a Deputy Chairman to preside meetings in his absence.

   (5) A quorum will be three members including the Chairman or a Deputy Chairman.

   (6) All questions shall be decided by a majority of votes of the members present and voting and, in the event of an equality of votes, the presiding member shall have a deliberative and a casting vote.

   (7) The Chairman may decide that particular meetings of the Commission should be held by telephone, closed circuit television or other method of communication as the Chairman thinks fit.

   (8) A minute of a resolution signed by all members of the Competition Commission shall constitute a valid resolution of the Commission as if it were duly passed at a validly constituted meeting of the Commission.

3F.   Delegation Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Chairman may delegate to a member of the Commission, to preside a meeting either generally or otherwise as provided by the instrument of delegation, any of its powers other than this power of delegation and its powers to revoke or vary a delegation.

   (2) A delegated power must be exercised in accordance with the instrument of delegation.

   (3) A delegation may be revoked or varied at will and does not prevent the exercise of a power by the Fair Competition Commission.

3G.   Confidentiality Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) For the purposes of this section "material" includes any information, document or evidence.

   (2) A claim for confidentiality may be made at any time before the material is disclosed to persons outside the Commission other than on the condition that it be kept confidential without any breach of the provisions of this section.

   (3) In the case of oral evidence, the claim may be made orally at the time of giving the evidence and in all other cases it shall be in writing, signed by the person making the claim specifying the material and stating the reason for the claim.

   (4) If the Chairman is satisfied that the material is of a confidential nature and–

   (a)   its disclosure could adversely affect the competitive position of any person; or

   (b)   is commercially sensitive for some other reason.

   (5) The Chairman must notify the person making a claim for confidentiality of the Commission's decision under subsection (4).

   (6) If the Authority decides not to grant confidentiality in respect of the material or any party of it, the claimant may appeal against the decision to the Fair Competition Tribunal by filing a notice of appeal within twenty-one days and in that event the material must be treated as confidential–

   (a)   during the twenty-one day appeal period; and

   (b)   if the claimant files an appeal, until the Fair Competition Tribunal determines the appeal.

   (7) The Fair Competition Tribunal may grant the claim for confidentiality in whole or in part.

   (8) If a claim for confidentiality–

   (a)   is made in relation to material supplied to the Commission voluntarily; and

   (b)   the Commission decides not to grant confidentiality in whole or in part for the material,

the person who supplied the material may withdraw it together with other material supplied with it.

   (9) A person performing a function under this Act, shall be guilty of an offence if he discloses confidential information otherwise than as authorised under this section.

   (10) Confidential information may be disclosed if–

   (a)   the disclosure is made to another person who is also performing a function under this Act;

   (b)   the disclosure is made with the consent of the person who gave the material;

   (c)   the disclosure is authorised or required under any other Act or law;

   (d)   the disclosure is authorised or required by a court or tribunal constituted by law;

   (e)   the Chairman is of the opinion that the disclosure of the material would not cause detriment to the person supplying it or the person to whom it relates;

   (f)   the Chairman is of the opinion that although the disclosure of the material would cause detriment to the person supplying it or the person to whom it relates, the public benefit in disclosing it outweighs the detriment.

   (11) If the Chairman is of the opinion required by paragraphs (e) or (f), he shall give the person who supplied the material and the person to whom it relates a written notice–

   (a)   stating that the Commission wishes to disclose the material, specifying the nature of the intended disclosure and setting out detailed reasons why the Commission wishes to make the disclosure; and

   (b)   stating that the Commission is of the opinion required by paragraph (e) or (f) and setting out detailed reasons why it is of that opinion.

   (12) The Chairman must not disclose the information for 21 days during which the person who supplied the information or the person to whom it relates may appeal to the Tribunal.

3H.   Funds of the Commission Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) Funds of the Commission will comprise–

   (a)   fees collected by the Commission;

   (b)   all other payment or property due to the Commission in respect of any matter incidental to its functions;

   (c)   any grants, donations, bequests or other contribution made to the Commission; and

   (d)   funds allocated to the Commission from the funds of the Authority for the work done.

   (2) The Commission may make rules prescribing filing fees, setting fees, licence fees and other fees to be paid by persons in connection with the procedures of the Commission.

   (3) The Commission shall disclose details of the sources of its funds in the Annual Report.

3I.    Accounts and financial audit Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Commission shall keep books of accounts and maintain proper records of its operations in accordance with accounting standards.

   (2) The accounts of the Commission may at any time and shall, at the end of each financial year, be audited by a person registered as an auditor under the Accountants and Auditors (Registration) Act * appointed by the Commission on such terms and conditions as the Commission may determine.

3J.   Audit of performance Acts Nos. 33 of 1972; 11 of 2001 s. 51 and 4th Sch.">

   (1) The Controller and Auditor General shall at the request of the Minister conduct an audit of the performance by the Commission of its functions including its performance in relation to key performance indicators, on such terms and conditions as the Minister may determine.

   (2) The key performance indicators under subsection (1) shall be as directed by the Minister or, in the absence of such direction, as determined by the Auditor General.

3K.   Annual report Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) Before 30th September each year, the Chairman shall prepare an Annual Report in respect of the year up to the immediately preceding 30th June and submit it to the Minister.

   (2) The Annual Report shall provide detailed information regarding the exercise of the functions and powers of the Commission during the year to which it relates and shall include:

   (a)   A copy of the audited accounts of the Commission;

   (b)   a copy of any report of the Controller and Auditor-General on any performance audit carried out by Controller and Auditor-General during the year to which the Annual Report relates;

   (c)   such information and other material as the Commission may be required by this Act or the regulations to include in the annual report;

   (d)   such additional information or other material as the Minister may request in writing.

   (3) The Minister shall cause a copy of the Annual Report to be laid before the National Assembly within two months after receiving it from the Chairman or at the next meeting of the National Assembly.

3L.   Preparation of a report Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Chairman shall cause to be prepared a budget and submit to the Minister for information and approval before the end of each financial year a budget for the following financial year showing estimates of its receipts and expenditures for the following financial year.

   (2) At the Minister's request, the Chairman shall commission the Commission's auditor to assess and report on the extent to which the budget represents a fair and reasonable projection of the income and expenditure of the Commission for the relevant year.

PART II
ESTABLISHMENT OF THE FAIR COMPETITION TRIBUNAL (ss 4-14) Act No. 11 of 2001 s. 51 and 4th Sch.">

4.   Establishment and composition of the Tribunal Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) There shall be established a tribunal which shall be known as the Fair Competition Tribunal to exercise the functions conferred upon it by this Act.

   (2) The Tribunal shall consist of–

   (a)   a Chairman who shall be a person holding or is qualified to hold high judicial office, and appointed by the President after consultation with the Chief Justice, and shall serve on a full time basis; and

   (b)   not less than two and not more than four other members appointed by the President after consultation with the Attorney General.

   (3) No person shall be appointed as a member of the Tribunal other than the Chairman, unless he qualifies for appointment by virtue of his knowledge of, or experience in industry, commerce, economics, law or public administration.

   (4) For the purposes of this section the expression "high judicial office" means the office of a Judge of the Court of Appeal or the High Court of the United Republic.

   (5) A member of the Tribunal shall hold office for the period not exceeding three years and he is eligible for re-appointment for another term of three years only, prior to the expiration of that period as specified in the instrument of his appointment unless–

   (a)   he resigns his office by written notification under his hand addressed to the President; or

   (b)   the President, being satisfied that the member is unfit by reason of mental or physical infirmity to perform the duties of his office, or that the member has failed to attend at least three consecutive meetings of the Tribunal, revokes his appointment.

   (6) The quorum for a meeting of the Tribunal shall be the Chairman and two other members.

5.   Judgment of Tribunal and execution of judgment

   (1) A judgment or order of the Tribunal on any matter before it shall, subject to subsection (2), be final.

   (2) Judgment and orders of the Tribunal shall be executed and enforced in the same manner as judgments and orders of the High Court.

6.   Functions and procedure of Tribunal Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The Tribunal shall have jurisdiction–

   (a)   to hear and determine any complaint on a fair competition referred to it under the provisions of this Act;

   (b)   to carry out functions conferred on it by or under the EWURA Act *;

   (c)   to carry out functions conferred on it by or under the SUMATRA Act *;

   (d)   to hear and determine appeals on any complaints referred to under the EWURA Act *, the SUMATRA Act * and any other written laws enacted for the purpose of regulating competition on trade and to exercise such other jurisdiction as may be conferred upon this Act;

   (e)   to inquire into any matter referred to it and to give orders in accordance with the provisions of this Act;

   (f)   to exercise such other functions and powers as are conferred upon it by this Act.

   (2) The Tribunal shall in the exercise of its functions under this Act be guided by the rules of natural justice.

   (3) Without prejudice to the general effect of subsection (2) of section 5 the Tribunal shall in the discharge of its functions under this Act have all the powers of the High Court in respect of—

   (a)   enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;

   (b)   compelling the production of documents; and

   (c)   the issue of a commission or request to examine witnesses abroad.

   (4) The Tribunal shall at any time be deemed to be duly constituted if the Chairman and two other members are present.

   (5) Any decision shall be deemed to be a decision of the Tribunal if it is supported by a majority of the members.

   (6) A witness before the Tribunal shall have the immunities and privileges as if he were a witness before the High Court.

7.   Registrar and other staff of the Tribunal

   The Minister shall after consultation with the Chief Justice appoint an officer to be known as the Registrar of the Tribunal, and shall provide to the Tribunal the services of such other officers as the Tribunal may reasonably require for the carrying out of its functions under this Act.

8.   Expenses and allowances

   The members of the Tribunal, the Registrar and staff of the Tribunal shall be paid such remunerations and allowances as the Minister shall determine.

9.   Obstruction of Tribunal

   (1) Any person who–

   (a)   when summoned, fails or refuses to attend without reasonable excuse;

   (b)   having attended as a witness refuses or fails to take an oath or make an affirmation as required by the Tribunal;

   (c)   makes any statement before the Tribunal which he knows to be false or which he has no reason to believe to be true;

   (d)   omits or suppresses any information required by the Tribunal in the discharge of its functions or relevant to the discharge of those functions; or

   (e)   in any manner misleads, obstructs insults or disturbs the Tribunal,

commits an offence, and is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months or to both that fine and imprisonment.

10.   Rules of the Tribunal

   The Minister may make rules–

   (a)   prescribing the manner in which an appeal shall be made to the Tribunal and the fees to be paid in respect of an appeal;

   (b)   prescribing the procedure to be adopted by the Tribunal in hearing an appeal and the records to be kept by the Tribunal;

   (c)   prescribing the manner in which the Tribunal shall be convened and places where and the time at which the sitting shall be held;

   (d)   generally for the better carrying out of the provisions of this Act relating to the Tribunal and appeals thereto.

11.   Procedure on appeals to the Tribunal

   Without prejudice to section 10 in an appeal under this Act–

   (a)   the appellant shall appear before the Tribunal either in person or by an advocate on the day and at the time fixed for the hearing of the appeal but if it is proved to the satisfaction of the Tribunal that owing to absence of the appellant from the country, sickness, or other reasonable cause, he is prevented from attending at the hearing of the appeal on the day and at the time fixed for that purpose, the Tribunal may postpone the hearing of the appeal for such reasonable time as it thinks necessary;

   (b)   the costs of the appeal shall be at the discretion of the Tribunal.

12.   Hearing and determination of appeal

   (1) The Tribunal may in any case if it considers it in the interests of the parties or of any of them and it is not contrary to the interest of other persons concerned or the public interest, order that the hearing or any part of it shall be held in camera.

   (2) The Tribunal may make an order prohibiting the publication of any report or description of the proceedings or of any part of the proceedings in any appeal before it, whether heard in public or in camera; but no such order shall be made prohibiting the publication of the names and descriptions of the parties to the appeal or of any decision of the Tribunal.

   (3) In its determination of any appeal, the Tribunal may confirm, modify, or reverse the order appealed against, or any part of that order.

13.   Tribunal may refer appeals back for reconsideration Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) Notwithstanding anything contained in section 12, the Tribunal may in any case, instead of determining any appeal under that section, direct the Chairman to reconsider, either generally or in respect of any specified matter the whole or any specified part of the matter to which the appeal relates.

   (2) In giving any direction under this section, the Tribunal shall–

   (a)   advise the Chairman of its reasons for so doing; and

   (b)   give to the Chairman such directions as it thinks just concerning the rehearing or reconsideration or otherwise of the whole or any part of the matter that is referred back for reconsideration.

   (3) In reconsidering the matter so referred back, the Chairman shall have regard to the Tribunal's reasons for giving a direction under subsection (1) and to the Tribunal's directions under subsection (2).

14.   Provisions pending determination of appeal Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) Where an appeal is brought under section 28 against any order of the Chairman under section 26 the order to which the appeal relates shall, unless the Tribunal otherwise orders, be held in abeyance pending the determination of the appeal.

   (2) Where an appeal is brought under section 33 against any order, of the Minister under section 32 the merger or takeover to which the appeal relates may not be consummated pending the determination of the appeal.

PART III
PROVISIONS RELATING TO RESTRICTIVE TRADE PRACTICES (ss 15-29) Act No. 11 of 2001 s. 51 and 4th Sch.">

15.   Meaning of "restrictive trade practice" Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) For the purposes of this Act, "restrictive trade practice" refers to an act performed by one or more persons engaged in production or distribution of goods or services which–

   (a)   in respect of other persons offering the skills, motivation and minimum seed capital required in order to compete at fair market prices in any field or production or distribution, reduces or eliminates their opportunities so to participate; or

   (b)   in respect of other persons able and willing to pay fair market prices for goods or services either for production, for resale or final consumption, reduces or eliminates their opportunities to acquire those goods or services.

   (2) For the purposes of subsection (1) reduction or elimination of opportunities is to be measured with reference to the situation that would pertain in the absence of the practices in question.

16.   Categories of trade agreements declared to be restrictive trade practices Act No. 11 of 2001 s. 51 and 4th Sch.">

   (1) The following categories of agreements are declared to be restrictive trade practices–

   (a)   an agreement or arrangement between persons engaged in the business of selling goods or services to engage in conduct–

      (i)   hindering or preventing the sale or supply or purchase of goods or services between persons engaged in the selling and buying of goods or services; or

      (ii)   limiting or restricting the terms and conditions of sale or purchase between persons engaged in the selling or buying of goods or services;

   (b)   an agreement or arrangement between manufacturers, wholesalers, retailers, or contractors to buy, or offer to buy goods at prices or on terms agreed upon between themselves;

   (c)   an agreement or arrangement between manufacturers, wholesalers, retailers or contractors or any combination of persons other than a partnership, engaged in the selling of goods or the performance of services, to sell goods, or perform services, at prices or on terms agreed upon between the parties to any such agreement or arrangement;

   (d)   an agreement or arrangement between manufacturers or between wholesalers, to sell goods on the condition that prices charged by or conditions of sale applicable to retailers shall be the prices or conditions of sale stipulated by those manufacturers or wholesalers;

   (e)   a discriminatory agreement or arrangement between sellers or between sellers and buyers to grant rebates to buyers of goods calculated with reference to the quantity or value of the total purchases by those buyers from those sellers;

   (f)   an agreement or arrangement between sellers not to sell goods in any particular form or of any particular kind to buyers or to any class of buyers; or an agreement or arrangement between resellers not to buy goods in any particular form or of any particular kind from sellers or any class of sellers;

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