1. A Snapshot of South Africa’s Tech Landscape

South Africa arguably has the most developed digital economy in Africa. It has one of the highest internet penetration rates in Africa at 72.3% (43.48 million internet users) and a mobile penetration rate of 187.4% (112.7 million cellular mobile connections).Footnote ⁹⁷ Like other countries on the continent, most people access the internet through their mobile phones. South Africa also has robust digital infrastructure due to early investments made in fiber-optic cables and international submarine cables. International connectivity is set to increase significantly following the launch of Google’s Equiano sub-sea cable that connects South Africa to Europe.Footnote ⁹⁸ These trends notwithstanding, the digital divide persists in South Africa: the cost and quality of access for poorer, more rural consumers is relatively worse than in comparable countries. Thus, improving the costs, choices, and quality of internet services is a priority of the South African government.

South Africa’s tech ecosystem is thriving with a variety of startups in sectors such as fintech, e-commerce, e-health, ed-tech, agri-tech, logistics, legal tech, and so forth. Fintech and e-commerce are the most prominent sectors accounting for 30% and 10.2% of startup economic activities respectively.Footnote ⁹⁹ However, the ecosystem is also plagued by inequality in investor opportunities, which limits the growth of startups by historically marginalized groups. Black and female entrepreneurs struggle to raise capital compared to their white, male, and middle-class counterparts.

Due to its tech leadership, South Africa serves as a regional hub for global initiatives, including multinationals wishing to set up regional headquarters or to establish regional cloud hosting services and data centers. For instance, Microsoft, IBM, Amazon Web Services, Teraco, and Dimension Data have all made investments to offer these services from South Africa.Footnote ¹⁰⁰ For South Africa, attracting such foreign investment is important, yet it might conflict with other goals such as strategically promoting the local economy, the growth of SMEs, and the participation of historically marginalized groups.Footnote ¹⁰¹

2. South Africa’s Antitrust Regime and Institutions

South Africa’s first competition law, the Regulation of Monopolistic Conditions Act, was passed in 1955. Under this law, the Minister of Trade and Industry could order investigations, which were then carried out by the Board of Trade and Industry. This enforcement structure, combined with a law with a “public interest” standard of analysis, led to a “cautious and permissive” system.Footnote ¹⁰² In 1979, a new law instituted a Competition Board, which was appointed by the Minister of Trade and Industry but could investigate matters on its own initiative. Real change, however, came around with the regime change in 1994, when the first broadly democratic government was elected.

In 1992, the African National Congress (ANC) adopted “policy guidelines for a democratic South Africa.”Footnote ¹⁰³ A section on “antitrust, anti-monopoly, and mergers policy” declared:

The ANC also stressed the “highly concentrated” nature of the domestic market in a white paper, concluding that market forces alone would not be enough to revitalize the economy—more active reforms in favour of SMEs would be needed.Footnote ¹⁰⁵ The South African economy was indeed concentrated: five investment conglomerates accounted for 84% of the stock exchange’s total capitalization.Footnote ¹⁰⁶ There are different reasons for this concentration. The conglomerates have their roots in the mining houses of the 19th century, which were historically the dominant economic force. Moreover, South Africa’s economic policy had been protectionist.

After a four-year process, the new Competition Act was adopted in 1998.Footnote ¹⁰⁷ The goals of the Act were ambitious:

1. (a) to promote and maintain competition;

2. (b) to promote the efficiency, adaptability and development of the economy;

3. (c) to provide consumers with competitive prices and product choices;

4. (d) to promote employment and advance the social and economic welfare of South Africans;

5. (e) to expand opportunities for South African participation in world market and recognize the role of foreign competition;

6. (f) to ensure that SMEs have an equitable opportunity to participate in the economy; and

7. (g) to promote a greater spread of ownership; in particular to increase the ownership stakes of historically disadvantaged persons (HDPs).Footnote ¹⁰⁸

These atypically broad goals distinguish the Act from EU and U.S. competition laws. Goals (d)–(g) in particular are broadly absent from EU and U.S. competition regimes. While the Act has been amended many times, its goals remain largely unchanged to this day.Footnote ¹⁰⁹ The Act also embeds competition law’s three typical prohibitions—agreements, unilateral conduct, and mergers—but with greater detail on their bounds and more idiosyncrasies than their U.S. and EU counterparts.Footnote ¹¹⁰ We focus on the two provisions that relate directly to market power.

The Act prohibits “abuse of dominance,” thus using the EU’s—rather than U.S.’ “monopolization”—terminology.Footnote ¹¹¹ There is a presumption of dominance when a firm holds a market share exceeding 45%, which approximates the EU’s threshold of 50%.Footnote ¹¹² The Act prohibits both exploitative practices—for example, excessive prices—and exclusionary practices—for instance, refusal to supply.Footnote ¹¹³ Through active intervention of the competent minister, SMEs and firms controlled by HDPsFootnote ¹¹⁴ can benefit from extra protections against dominant firms. The law accords special attention to price discrimination. The U.S. also has a specific statute on price discrimination, which shares the goal of protecting SMEs,Footnote ¹¹⁵ but the South African Act is specific in its focus on HDPs. Exemptions from competition rules are possible, inter alia when they contribute to (i) maintenance or promotion of exports; (ii) expansion by SMEs and firms controlled by HDPs; (iii) economic development and growth of an industry; and (iv) the promotion of employment.Footnote ¹¹⁶

Next, the Act institutes an ex ante merger control regime, which prohibits mergers that are likely to “substantially prevent or lessen competition.”Footnote ¹¹⁷ As in the prohibition of abuse of dominance, a concern for efficiency is clear: anticompetitive effects can generally be offset by procompetitive gains. More than in those other prohibitions, however, “substantial public interest grounds” are front and center in merger control.Footnote ¹¹⁸ Such grounds include employment, SMEs and HDPs, competition in international markets, and the promotion of a greater spread of ownership, all of which can justify an otherwise anticompetitive merger.

Enforcement of competition law is entrusted to the independent Competition Commission of South Africa (CCSA), which has strong investigatory and remedial powers, investigates potential infringements, can impose fines and penalties, and authorizes or prohibits mergers.Footnote ¹¹⁹ The CCSA can also conduct larger market and sector-specific inquiries.Footnote ¹²⁰ Decisions of the CCSA can be appealed to a specialized Competition Tribunal, which can also adjudicate competition law matters without a previous CCSA decision.Footnote ¹²¹ Decisions of the Competition Tribunal can then be appealed before the Competition Appeals Court.Footnote ¹²²

3. South African Competition Law in Tech Markets

The CCSA has been paying close attention to competition in the digital economy. Its focus is set out clearly in a 2021 Digital Markets Paper:

The overall view is that digital economy could benefit the South African economy, but only if it does not further a historical trend towards concentration—and characteristics such as network effects make platform markets especially susceptible to concentration. Countering concentration in tech markets requires proactive competition law enforcement.

Although the pace of enforcement has been picking up, the CCSA’s efforts in digital markets were, until recently, quite limited.Footnote ¹²⁴ In line with EU and U.S. trends, merger control in the digital economy has been hands-off. As the CCSA noted in 2021:

In recent years, the CCSA has become more proactive on merger enforcement. While in 2016 the CCSA approved Microsoft/LinkedIn without conditions, it imposed conditions in Google/Fitbit in 2020. As in the EU,Footnote ¹²⁶ commitments related to access to the Android OS for manufacturers of competing wearables, data separation between Google and Fitbit, and continued access to Fitbit data by third parties such as app developers.Footnote ¹²⁷ At the time of writing, the last major international, digital merger scrutinized by the CCSA is Microsoft/Activision-Blizzard. The CCSA approved the $69 billion acquisition without conditions in 2023,Footnote ¹²⁸ while other major jurisdictions either approved the merger with conditionsFootnote ¹²⁹ or tried unsuccessfully to block it.Footnote ¹³⁰

The CCSA also frequently examines domestic tech mergers. The 2014 Takealot/Kalahari merger involved two of the largest online retailers in South Africa. Nevertheless, the CCSA approved the merger subject to conditions related to employment.Footnote ¹³¹ The most aggressive stance was taken in MIH eCommerce/WeBuyCars in 2018. MIH eCommerce is a holding company fully owned by Naspers Group, South Africa’s premier tech conglomerate. It operated a classified ads platform for new and used vehicles called Autotrader. The transaction would give it a 60% stake in WeBuyCars, which operated an online used car buying service. The merger did not present any actual overlap. However, Naspers had already acquired a stake in Frontier Car Group—an acquisition through which it intended to enter the South African market for online car buying. Based on this potential horizontal competition, combined with conglomerate effects, the CCSA recommended that the Tribunal prohibit the merger,Footnote ¹³² which it did.Footnote ¹³³

When it comes to anticompetitive conduct, there have been two consequential abuse of dominance proceedings.Footnote ¹³⁴ The first one was the Metered Taxi Industry v. Uber, in which the former accused the latter of, inter alia, predatory pricing. The CCSA took the view that Uber’s conduct did not contravene the Competition Act.Footnote ¹³⁵ Given that the complaint was rejected, the record is short on reasons for the decision but is in line with those of other African competition authorities. The second proceeding concerned Meta, and in particular its WhatsApp messaging service. WhatsApp’s Business API, application programming interface, allows for mass messaging, advanced automation, e-commerce integration, and so forth.Footnote ¹³⁶ A South African startup made use of this API to launch the GovChat platform, which enables government–citizen communication on anything from pothole alerts to covid awareness. When Meta off-boarded GovChat from the WhatsApp Business API, halting communication, the CCSA started an investigation. It sought and received interim relief from the Tribunal, which prevented the off-boarding.Footnote ¹³⁷ Subsequently, it referred the full case to the Tribunal for prosecution, asking for the maximum fine, 10% of South African turnover.Footnote ¹³⁸ In terms of abuse, it has identified either a refusal to supply, a refusal of access to an essential facility, or another exclusionary act. The underlying idea is that WhatsApp is the only communication platform with the necessary scale to host an effective government communication service. The Tribunal has yet to decide on the merits.Footnote ¹³⁹

Both cases illustrate the quasi-regulatory role of the CCSA in South Africa that is unlike the role of competition authorities in Europe or the U.S. Indeed, they show that the CCSA acts as a guarantor of public services and of competition between private and public options on South African tech markets. The GovChat case in particular denotes an appetite on the part of South African competition authorities for treating Meta as a quasi-utility: an essential facility or critical infrastructure that must act in the public interest and ensure the smooth provision of government services to South African digital citizens.

4. South African Regulatory Developments in Tech Markets

In spite of their regulatory flavor, the competition law proceedings discussed above have been one-off, conduct-specific and backward-looking. The CCSA has also pursued a more comprehensive and forward-looking approach with its Online Intermediation Platforms Market Inquiry, the final report of which was published in July 2023.Footnote ¹⁴⁰ The CCSA recognized the international context of its enforcement actions:

With its Inquiry, the CCSA was meant to get a good overview of the specific competitive conditions of South Africa’s platform economy. It focused on the “leading” platform(s) in different categories:

• • Search: Google;

• • Travel and accommodation: Booking.com;

• • E-commerce: Takealot;

• • Software application stores: App Store (Apple) and Play Store (Google);

• • Online classifieds: Autotrader and Cars.co.za (automotive), Property24 and Private Property (real estate);

• • Food delivery: UberEats and Mr D Food.

The CCSA found that these platforms were engaging in anticompetitive conduct, ranging from self-preferencing to high commission fees to exclusive agreements, and ordered remedial actions. The remedial actions were platform-specific and often far-reaching. In the case of Google’s search engine, for example, the CCSA imposed the following:

On certain points, the Inquiry is strongly aligned with the EU’s DMA, to which it explicitly refers. To prevent Google from favoring its own specialized search services in its general search results, for example, “Google is required to implement in SA, measures taken in Europe to comply with similar provisions in the Digital Markets Act to address self-preferencing.”Footnote ¹⁴³ But the above measures, which require Google to actively aid local competitors, go further. Other measures are more traditional: Booking.com, for example, is required to remove parity clauses, which it had previously done in the EU in response to antitrust investigations.Footnote ¹⁴⁴

The CCSA and its remedial actions are effectively changing the market dynamics. This is thanks, in part, to the cooperation by the platforms in question. About half of the dozen platforms immediately started implementing the inquiry’s remedies; the other half filed appeals with the Competition Tribunal, but most of them have now settled.Footnote ¹⁴⁵ Google is singled out as an example of a platform that has been implementing the remedies without contestation.Footnote ¹⁴⁶

Building on the success of the platforms’ inquiry, the CCSA has followed up with an inquiry targeted specifically at platforms–news media relations, issuing a provisional report in 2025.Footnote ¹⁴⁷ The report focuses the unequal bargaining position of publishers vis-à-vis Google (including YouTube) and Meta, and its effects.Footnote ¹⁴⁸ It examines a variety of practices that might adversely affect competition, including imbalanced value extraction from news and the under-representation of local vs foreign media. Suggested remedies center around the representation of South African news, visibility, referrals, and a redistribution of value from platforms to publishers via a bargaining model and/or digital advertising levies.Footnote ¹⁴⁹ The report also tackles Google’s dominant position across the AdTech stack.Footnote ¹⁵⁰ The CCSA notes the strong appeal of a structural solution but considers it unworkable given South Africa’s small market size. However, the CCSA does propose that Google implement globally any structural remedy imposed by EUFootnote ¹⁵¹ and U.S.Footnote ¹⁵² agencies in their ongoing AdTech cases.

1. A Snapshot of Kenya’s Tech Landscape

Kenya has one of the biggest digital economies in Africa. The country’s internet penetration rate is 32.7% representing 17.86 million internet users, while its mobile penetration rate is 117.2% representing 63.94 million cellular mobile connections.Footnote ¹⁵³ Most Kenyans access the internet through their mobile phones, underscoring the role of mobile network operators (MNOs) in expanding internet connectivity. Digital penetration notwithstanding, the digital divide persists and is largely due to high cost of data and limited expansion of digital infrastructure beyond major towns.

Bridging the digital divide is one of the goals of the Kenyan government. It pursues this through national government projects such as the National Optic Fiber Backbone Project and through international submarine cables that are often laid by private sector investments by Big Tech companies from the U.S. and China. Elon Musk’s company SpaceX also launched its satellite internet service Starlink in Kenya, which the government hopes will enhance internet speeds in rural areas, schools, and institutions around the country.Footnote ¹⁵⁴

The digital economy has stimulated innovation in sectors such as education, agriculture, finance, and logistics, which have propelled Kenya forward to the extent of being dubbed “the Silicon Savannah,” a moniker that likens it to Silicon Valley. There are a variety of technology hubs, accelerators and incubators which provide business support to startups. Nevertheless, startups face funding challenges.

Kenya’s most prominent innovation is the M-PESA mobile money platform, which in turn spurred innovations in other digital financial services. While the platform positively transformed the lives of many Kenyans, its dominance, alongside Safaricom’s, the MNO that owns the platform, has created a spate of challenges for the competition and communications authorities of Kenya, which have in turn pushed the development of the competition regime in Kenya.

2. Kenya’s Antitrust Regime and Institutions

Kenya was one of the earliest African countries to adopt a competition law. The first law, the Restrictive Trade Practices Monopolies and Price Control Act (RTPMPCA), was enacted in 1988 and entered into force in 1989. Its adoption was motivated by World Bank structural adjustment policies of the 1980s that were intended to shift the country from a price control regime with significant state intervention towards a market economy.Footnote ¹⁵⁵

Prior to this, Kenya’s economy had a distinctively state-driven nationalistic bent intended to promote the participation of indigenous Kenyans in key sectors. This was largely a reaction to the pre- and post-independence domination by foreign multinationals and an Asian minority class that controlled the country’s middle-range retail commerce. Some of the measures adopted in furtherance of this goal included enactment of the Trade Licensing Act of 1967, which excluded non-citizens from trading in specific commodities/sectors,Footnote ¹⁵⁶ and the creation of large state corporations to drive industrialization. The government also passed a Price Control Act in 1956 to control prices and introduce consumer subsidies as a mechanism for redistribution.Footnote ¹⁵⁷

Following criticism that the 1988 RTPMPCA was outdated and ineffective,Footnote ¹⁵⁸ a new Competition Act of Kenya (the Act) was introduced in 2010. Enforcement of the Act is undertaken by an independent national competition agency, the Competition Authority of Kenya (CAK), and a specialized quasi-judicial tribunal, the Competition Tribunal.

The Act is aimed at increasing consumer welfare, promoting and protecting competition and market-oriented objectives such as:

1. (a) increasing efficiency in the production, distribution and supply of goods and services;

2. (b) promoting innovation;

3. (c) maximizing the efficient allocation of resources;

4. (d) protecting consumers;

5. (e) creating an environment conducive to foreign and local investment;

6. (f) capturing national obligations in competition matters with respect to regional integration initiatives;

7. (g) bringing national competition law, policy and practice in line with best international practices; and

8. (h) promoting the competitiveness of national undertakings in world markets.Footnote ¹⁵⁹

While these objectives focus primarily on efficiency and productivity, the Act’s provisions on mergers and restrictive trade practices also reveal a concern for public interest considerations.Footnote ¹⁶⁰ For example, the CAK assesses mergers and acquisitions by looking not only at their effects on competition as traditionally understood in price and output terms, but also at their effects on job losses, the SME landscape, and the competitiveness of national industries in the world.Footnote ¹⁶¹

Abuse of dominance is prohibited and is deemed to include practices such as unfair pricing, limiting production, abusing an intellectual property right, applying dissimilar conditions to equivalent transactions, and imposing irrelevant conditions to the conclusion of contracts.Footnote ¹⁶² In general, a firm is dominant if it controls not less than one-half (50%) of the total goods or services produced/rendered in Kenya or a substantial part of Kenya.Footnote ¹⁶³ Dominance can also be found below this threshold if there is evidence of market power.Footnote ¹⁶⁴ The 2010 Act defines market power as “the power of a firm to control prices, to exclude competition or to behave to an appreciable extent, independently of its competitors, customers or suppliers.”Footnote ¹⁶⁵ This definition of dominance, as well as the 50% market share threshold, is aligned with EU competition law.Footnote ¹⁶⁶

The notion of an abuse of dominance and its application to digital markets is currently subject to potential reform by the Competition (Amendment) Bill.Footnote ¹⁶⁷ The Amendment adds greater specificity to the manifestation of market power and dominance in digital markets and provides strategic tools for CAK to deal with it, as explained further below.

Another specificity of Kenyan competition law is its explicit prohibition of abuse of buyer power. The 2010 Act has a non-exhaustive list of examples of what might constitute abuse of buyer power including: payment delays to suppliers without justification, unjustified unilateral termination or threats of termination of a commercial relationship without notice or on an unreasonably short notice period; buyer’s transfer of commercial risks to suppliers; and anticompetitive price reductions.Footnote ¹⁶⁸

3. Kenyan Antitrust and Regulatory Developments in Tech Markets

So far, the CAK’s enforcement has been less proactive than the CCSA’s. The CAK has not, to date, investigated any global tech mergers. It has, however, considered disruptions to the local economy resulting from the prevalence of (foreign) Big Tech platforms in the sectors of ride hailing services, online food deliveries, and digital financial services.

Like the CCSA, the CAK investigated a complaint on predatory pricing brought by traditional taxi operators against Uber.Footnote ¹⁶⁹ It found that Uber did not have “market power or the ability to behave independently of its competitors and consumers.”Footnote ¹⁷⁰ It noted that Uber faced significant competition from other app-based taxi companies and traditional taxis, and that its price per kilometer was above the average cost charged for taxi services.Footnote ¹⁷¹ For these reasons, the predatory pricing test was not met, and the investigation closed.Footnote ¹⁷² Given the pushback by traditional taxi operators, however, the CAK recommended further inquiry on the taxi transport sector prior to introducing new regulations.Footnote ¹⁷³

In the food retail sector, the CAK investigated allegations of abuse of dominance against food delivery platform Glovo, UberEats, and Jumia Kenya.Footnote ¹⁷⁴ The claim was that these apps imposed exclusivity clauses on third-party vendors, restricting entrants’ ability to develop or market competing applications.Footnote ¹⁷⁵ After investigating the relevant markets, the CAK established that the apps were not dominant by market share because of a wide range of substitutable online instant delivery platforms. Nevertheless, it still recommended removal of any clauses that limited vendors’ access to other competing platforms.Footnote ¹⁷⁶

CAK regularly conducts sector-specific market inquires, often seen as a preliminary means for advocating pro-competitive policies and regulations in given industries. Some of these inquiries offer useful insights into how CAK may handle digital platform markets that present similar challenges in the future. They show that CAK values competition as advanced through transparency and non-discrimination measures, as well as the sustenance of smaller firms.

The CAK conducted an important market inquiry into the pricing and other conditions for accessing unstructured supplementary service data (USSD) platforms owned by MNOs.Footnote ¹⁷⁷ The USSD platform is a communications protocol used to send messages between MNOs and users. It is the predominant infrastructure used by banks and fintech services to offer mobile financial services. The MNOs providing this infrastructure also compete with banks and fintech apps in offering mobile financial services.

The inquiry surveyed whether the MNO-set terms of access restricted competition in financial services and whether Safaricom, the leading MNO, had abused its dominance. The CAK found excessively high prices charged by MNOs, which undermined the ability of smaller firms to offer competitive financial services. It also found that Safaricom had anticompetitively charged even higher prices to its biggest rivals and had denied access to its network outright. As regards remedies, the CAK required Safaricom to publish on its website the standard prices for USSD services for mobile financial services, in the hope of fostering greater transparency and lower overall prices. The CAK also recommended interoperability between the dominant M-PESA mobile wallet and other mobile money providers.Footnote ¹⁷⁸

More recently, the CAK carried out a market study on online food delivery and grocery platforms to understand their business models and recommend appropriate regulation.Footnote ¹⁷⁹ The report identifies several issues spanning the entire value chain, from retailers’ market power over digital platforms, to platform power over labor—for example, couriers—to the restrictiveness of data-related terms and conditions. Its recommendations included continuous monitoring and self-regulation through codes of conduct as well as the setup of physical offices on Kenyan territory.Footnote ¹⁸⁰

The CAK is beginning to make strides towards establishing competition frameworks for digital markets. Although the 2010 Act does not include digital-specific provisions, the recently revised Guidelines on Relevant Market Definition recognize that “multi-sided markets,” “non-price markets,” and “digital markets” warrant special scrutiny, and provide that precedents from other jurisdictions will be followed in such cases.Footnote ¹⁸¹ More significantly, the Competition Amendment Bill of 2026—currently only a draft—would introduce specific provisions on competition in digital markets inspired by competition reforms across the globe.

The Amendment Bill defines “digital activities” to include: (a) online intermediation services, including online marketplaces and app stores; (b) online search engines; (c) online social networking services; (d) video-sharing platform services; (e) independent interpersonal communication services; (f) operating systems; (g) cloud computing services; and (h) online advertising services.Footnote ¹⁸² Save for the exclusion of web browsers and virtual assistants, this definition matches exactly the list of CPSs under the DMA.Footnote ¹⁸³ The Amendment also expands the notion of market power in digital markets, via the concept of “strategic market position.”Footnote ¹⁸⁴ The concept seems inspired by the UK’s Digital Markets, Competition and Consumer Act (DMCCA), which focuses on digital firms with “strategic market status.”Footnote ¹⁸⁵ A strategic market position may be found even below market shares of 40%. The Amendment also directs regulators to consider factors such as direct and indirect network effects; economies of scale and scope, including access to competitively relevant data; switching costs for users and the ability to multi-home; the competitive pressure driven by innovation; and the importance of the intermediary services’ role as bottlenecks or infrastructures for the provision of other goods and services.

More innovatively, the Amendment adapts and extends the idea of abuse of buyer power to digital markets, introducing the notion of abuse of superior bargaining power.Footnote ¹⁸⁶ Here, the CAK must first ascertain whether an undertaking has superior bargaining power, for example, because it is an unavoidable or critical business partner on which many other businesses depend, and whether it abuses or is likely to abuse such power. Examples of abuses of superior bargaining power include the list of abuses of buyer power but also include digital-specific examples such as unreasonable collection and processing of data or making it difficult to leave or terminate a service or digital account. Once a likelihood of abuse is determined, the CAK can then impose certain quasi-regulatory measures on the undertaking, including reporting, prudential requirements, and codes of practice.

The proposed Amendment has faced criticism from Big Tech interest groups, which may resonate more strongly in the midst of a tariff discussions, so it remains to be seen whether it ends up passing.Footnote ¹⁸⁷

1. The EU’s Influence: Fairness and Contestability

The EU has been a source of global inspiration, especially in the digital economy.Footnote ²⁰⁶ The values underlying the European approach to digital markets have evolved over time. Europe has moved from a focus on removing barriers to digital trade and competition in the internal market to an approach that actively promotes the fairness and contestability of digital markets, and positively enables a better exercise of consumer and entrepreneurial choice. Fairness implies equalizing relations in digital markets by imposing obligations on gatekeepers to prevent them from extracting disproportionate rents compared to their business users, and to prohibit discriminating against business users, that is to say, not to engage in self-preferencing.Footnote ²⁰⁷ In digital markets, the notion of fairness, in other words, translates into ideas of balanced and equal access to powerful platforms. Beyond the DMA, fairness can also inform an industrial policy agenda favoring greater market opportunities, which can be promoted for instance by government investments and rules favoring entrepreneurship and innovative small businesses. Contestability, a term coined by William Baumol and others and repurposed by DMA drafters, is about enabling entrants and smaller firms to exert competitive pressure on incumbents.Footnote ²⁰⁸ This is done by lowering barriers to entry, for example, via interoperability and data sharing obligations. These values are being incorporated in African jurisdictions in more or less clear-cut ways and for a variety of different reasons.

The clearest-cut examples of legal borrowing are the pro-competitive regulatory regimes in South Africa, Kenya and under the AfCFTA Protocol that form this Article’s primary object of inquiry. The South African CCSA’s Online Intermediation Platforms Market Inquiry has led to new pro-competitive obligations being imposed on tech companies in search, travel, e-commerce, app stores and food delivery markets.Footnote ²⁰⁹ Many of these obligations address conduct, such as self-preferencing by search engines, in a way similar to the DMA. Yet South Africa is also pushing these obligations further, asking companies like Google to ensure that the interests of local South African businesses are represented and prompting criticism that the DMA model is being taken “to the extreme.”Footnote ²¹⁰ In Kenya, the Competition Amendment Bill would introduce new provisions that impose stricter obligations on digital services that have a strategic market position.Footnote ²¹¹ Here, there seems to be a mix of influences, as the list of services matches the DMA, but the notion of “strategic market position” seems inspired by the UK’s DMCCA. As noted, and further discussed below, the AfCFTA Protocol is also largely inspired by the European approach to pro-competitive digital market regulation.Footnote ²¹²

The convergence of pro-competitive digital market regimes toward the European model indicates that there is an appetite for moving from traditional negative understandings of competition in markets toward a more positive agenda for shaping the competitive conditions digital SMEs operate under. This agenda, as we now show, is not motivated by purely Western goals. Instead, it aligns very well with local development concerns. We now examine how such an agenda can and does align with African goals and priorities for its digital markets, looking at industrial policy considerations in Subsection 2 and inclusive development goals in Subsection 3.

2. Alignment with Africa’s Development and Industrial Policy Goals

Alignment with the European model is not just motivated by an overlap of values in tech markets, but also by industrial policy motivations which align with fighting monopoly power and promoting greater competitiveness and regional diversity in tech markets. Competition law and industrial policy goals straddle between maintaining a market environment that attracts investors especially for digital infrastructure projects on the one hand, and ensuring the emergence and success of SMEs both nationally and regionally on the other.

The recent wave of pro-competitive regulation has been motivated by industrial policy goals aimed at improving the playing field for smaller market players, African firms, and platforms specifically, in a market dominated by large foreign players, and can extend toward development goals in two directions. First, these laws can help promote fairer outcomes in the context of global digital trade and investment, where foreign platforms possess significant structural and technological advantages relative to national players. Second, these laws can intensify and deepen regional integration under the AfCFTA, which in turn could promote cross-border trade in the region. Enforcing pro-competitive obligations on foreign and local platforms could be a crucial industrial policy tool for African countries—provided there is sufficient political and administrative capacity to enforce them.

The limitations of regulatory and enforcement power of African national competition institutions via-à-vis more powerful players are acknowledged. However, the alignment we observe between African competition regimes with those of a more influential power like the EU could provide the impetus for bolder enforcement in the African context. For instance, enforcement of the AfCFTA Digital Trade Protocol’s provisions on promoting African firms and platforms could invite claims of discrimination under the WTO’s national treatment principle, which requires states to treat foreign companies and products no less favorably than their domestic counterparts. The United States has already accused the EU of protectionism in connection with its enforcement of the DMA.Footnote ²¹³ Smaller jurisdictions that would not otherwise be able to enact or enforce such laws acquire some limited political power in light of EU’s efforts, though the future of trade negotiations in this space remains in flux.

Although we are concerned here with pro-competitive regulation, the context of merger control efforts in Kenya and South Africa is illustrative on how these synergies come into play.Footnote ²¹⁴ From our analysis, it appears that South African and Kenyan competition authorities are more willing to impose remedies on foreign merging parties when this is in line with EU or other global antitrust enforcement trends. In Google/Fitbit, for example, the South African CCSA imposed conditions very similar to an earlier European Commission decision. Other cases seem to indicate a reluctance on local authorities’ part to be proactive where the outcomes of these same cases abroad have been mixed or contested as, for example, in Microsoft/Activision-Blizzard. These decisions to enforce competition law locally —or not—depending on foreign trends suggests that global firms will more readily comply with regulatory changes in Africa if and when they have had to adapt to the regulatory requirements of other, perhaps more globally influential, jurisdictions such as the EU.

For local mergers, enforcement considerations are different. African authorities still take inspiration from other jurisdictions on technical matters, as the CAK made clear in its market definition guidelines, which explicitly refer to foreign precedents in digital markets. However, authorities have more freedom when it comes to addressing compliance with competition laws at a local level. In some cases, industry or government interests may put pressure on competition authorities in the context of these proceedings. However, to the extent authorities are interested in safeguarding their nation’s interests in the world, authorities should deem it unwise to give in to political pressures to the detriment of cross-border considerations.

Pro-competitive regimes in South Africa, Kenya, and under the Protocol seem largely designed to balance respect for healthy foreign tech investment with support for local innovation. While enforcement may be limited by the structural power of foreign corporations or political interference, imposing obligations on foreign tech firms is possible because similar obligations are already being imposed in other leading jurisdictions. At the same time, these obligations help promote the interests of SMEs on the ground. Therefore, one may conclude that alignment with EU’s pro-competitive legislation provides weaker jurisdictions with credible backing to enforce obligations that would otherwise be controversial or lead to retaliatory action. However, with rising geopolitical tensions fueled by the United States’ unilateral approach to global engagement, these favorable conditions are shifting, making it even more difficult for weaker jurisdictions to enforce pro-competitive regulation against U.S. tech giants that dominate the global digital economy, especially when such action is targeted at promoting domestic firms and products.

3. Promoting Local Fairness Considerations

The question of fairness and contestability in tech markets acquires a local flavor in African competition law regimes that is missing from EU efforts. African jurisdictions have supplemented Western competition frameworks with a unique bent for protecting local SMEs, balancing foreign and national business interests. Indeed, fairness in the African digital context seems to go far beyond imposing duties on gatekeepers to provide access to their facilities, duties to interoperate, and duties not to discriminate. It instead means the active promotion of market access and opportunity for small businesses and indigenous populations through a removal of barriers to access and market entry as well as positive investment in small businesses. As noted, the South African Competition Act explicitly states among its goals to promote employment, social and economic welfare, to expand opportunities for South African SMEs, and to promote a greater spread of ownership in favor of HDPs. An EU or U.S. antitrust regulator would consider these “fairness” considerations to be extrinsic to competition, yet authorities such as CCSA treat them as an integral part of their domain of expertise.

This greater interest in fairness, more equal market access, and opportunity for small businesses and populations is reflected across competition law domains in Africa. One domain of particular salience is unilateral conduct proceedings, where investigations tend to reach beyond Western paradigms and show the existence of a close synergy between competition goals and other regulatory concerns.

Unilateral conduct investigations in the jurisdictions we examined do not mirror enforcement actions in the EU. The main target of such investigations, not only in South Africa and Kenya but also outside of it,Footnote ²¹⁵ has been Uber. In the EU, the European Court of Justice qualified Uber not as an “information society service” but as a “transport service,” which allowed Member States to regulate ride-hailing as they wished.Footnote ²¹⁶ In Kenya and South Africa, but also IndiaFootnote ²¹⁷ and Brazil,Footnote ²¹⁸ competition authorities did investigate Uber from a competition law perspective. The main allegations were predatory pricing and unfair competition due to the circumvention of regulation of taxis and employment. However, these investigations were peripheral to competition law and primarily raised questions on how competition authorities could use their powers to ensure the accountability of a private service of public importance. All authorities came to the same conclusion: Uber’s entry and subsequent conduct did not infringe competition law. The underlying idea, voiced to some extent in each of the decisions, is that Uber is a market-liberating rather than market-foreclosing force. But that was not the end of the story. In Kenya, for example, the decision was followed by broader collaboration between government institutions to deal with contested issues that fell outside the ambit of competition and paved the way for important restrictions on Uber’s pricing model.Footnote ²¹⁹

Another illustrative case is the CCSA’s investigation of Meta. While European authorities have focused on Meta’s data collection practices,Footnote ²²⁰ the CCSA accused Meta of refusing to host the government–citizen communication platform GovChat. This case quite clearly goes beyond what a European or U.S. antitrust agency would impose on a foreign company based on competition rules and enlists a company like Meta to work with a government-recognized service in seeking to expand digital access and close the digital divide.

Our analysis shows that the ethos of fairness underlying African procompetitive reform efforts differs from that of European countries. The EU regime construes fairness quite narrowly. For example, the DMA states a concern for fairness as regards “the commercial relationship between undertakings providing [core platform] services and their business users and end users.”Footnote ²²¹ It specifies that fairness in this context requires providing safeguards against the unfair practices of platform gatekeepers such as self-preferencing and access denials. This notion of fairness focuses on the binary and symmetric relationship between gatekeepers and their users and is quite narrowly tied to questions of access to and non-discrimination by platforms. Instead, regulators in Africa could push fairness considerations further by integrating concerns about expanding the market opportunities of local populations and local business entrepreneurs even when these opportunities conflict with the interests of Western multinationals.

This reflects the possibility of pushing pro-competitive digital reform efforts such as AfCFTA in directions that have remained unexplored in Europe and elsewhere.

1. Scope: Targeting What Matters for the African Economy

The AfCFTA tasks the Council of Ministers with developing a regulation designating firms as gatekeepers.Footnote ²²⁹ Most gatekeeper regulation defines its scope through a two-step process: (i) a closed list of defined digital services; and (ii) a combination of financial and user size thresholds that correspond to gatekeeper criteria.Footnote ²³⁰ The AfCFTA Protocol’s gatekeeper concept refers to CPSs but does not list them. It sets three qualitative gatekeeper criteria—significant impact on market, important gateway for business users to reach end-users, entrenched and durable position—but does not operationalize them with quantitative thresholds.

When it comes to CPSs, the list should contain those services that fulfill an essential intermediary function in the African digital economy. To future-proof the regulation, it may also be worthwhile to include those CPSs that are expected to fulfill such a function in the future, for example, AI agents, though this becomes less important if the list can be amended. Even if there can be overlap in key global services, like search and app stores, the Protocol’s list should look different than the DMA’s.

Certain services not listed in the DMA deserve attention in the Protocol. In particular, MNOs play an important role in Africa, not only because mobile is a more important internet access point, but also because they provide the infrastructure for various financial and other services, as described in Section D.II. on Safaricom. Fintech services in themselves are worthy of inclusion, though their variety make it difficult to capture them in one simple definition. Payment and money transfer platforms from, M-PESA to Flutterwave, would be a place to start.

Other services deserve extra attention in the Protocol, given their relatively greater importance in Africa. Policymakers for example, may want to single out a sector like tourism, even if the main platforms like Booking.com and Airbnb can be captured under the general definition of “intermediation services.” Messaging services like WhatsApp are another example of a service that is of greater importance in Africa, because it is an essential tool not only for public communication, as shown in Section D.I. on GovChat, but also for business communications.Footnote ²³¹

Finally, there may be “typical” CPSs that do not require designation in the African context. E-commerce, for example, has seen limited penetration and can thus hardly be a key gateway for commerce.Footnote ²³² Still, the sector is growing fast.Footnote ²³³ A middle-ground solution is to add e-commerce to the list of CPSs, also under the heading of “intermediation services,” but letting these businesses initially escape obligations because they don’t yet meet the designation thresholds.

In addition to a list of CPSs, the implementing regulation should define quantitative gatekeeper thresholds to facilitate the designation exercise. The qualitative criterion of “significant impact on the market” can be measured in revenue or market capitalization, and the status of “important gateway for business users to reach end-users” is logically measured in the number of business and end-users. But a first question is at which level to set the thresholds. In Europe, there is a more homogenous dominance of U.S. platforms, which facilitates EU-wide designation. But digital diversity across the African continent means that this is likely too high a level to set thresholds, which would then not capture platforms that are locally important but only active in certain regions or countries, and thus do not meet continental revenue/user number thresholds. The tendency to have a more local presence, and therefore the risk to escape continental thresholds, is especially great for platforms that rely on physical infrastructure, such as MNOs, e-commerce, food delivery, and so forth. Take e-commerce: in South Africa, Takealot is the largest platform; in Kenya, it is Jumia. Thus, setting thresholds at the national level seems preferable, at least for those platforms. But going through country-by-country designation requires significantly more resources, even if the burden to report revenue and user numbers is put on the platforms.

An entirely different option, which fits less with the text of the Protocol but more with the enforcement tradition in African countries like South Africa and Kenya, is not to work with quantitative thresholds at all, but to adopt a market power-like analysis at the national level. A similar approach has been taken in the EU telecommunications space, where national regulators must designate operators with “significant market power.”Footnote ²³⁴ This approach fits well with the market inquiries that have been undertaken by the CCSA and the CAK. The CCSA’s list of “leading” platforms and the CAK’s to-be-determined list of platforms with “strategic market position” could inform or even determine the scope of the Protocol. However, this approach requires a devolution of power to national authorities that the Protocol does not foresee.

A final, difficult question is whether or not to (partially) exempt local platforms from the regulation, for example, by including a nationality criterion.Footnote ²³⁵ While the Protocol does not foresee this, a preferential treatment of local platforms would be in line with Africa’s industrial policy goals, described in Section E.II.2, yet potentially violate core trade law principles on non-discrimination between local and foreign firms. Additionally, letting dominant local platforms go unregulated would run counter to the goal of promoting opportunities for SMEs depending on those platforms. As noted above, local intermediaries such as MNOs can also inflict harm on the local economy if left unchecked.Footnote ²³⁶ In addition, it would diminish the legitimacy of regulation and invite trade retaliation. A solution might instead be to account, in enforcement, for the way in which those platforms promote local fairness considerations, for example, whether they enhance or rather undermine the market opportunities of local SMEs. If local platforms help advance the interests of small businesses more than foreign platforms, a case could be made for differential enforcement.

2. Obligations: Well-Selected but Nevertheless Tricky to Implement

The obligations imposed on gatekeepers are already listed, in some detail, in the Protocol. Unlike the regulation’s scope, statutory specification may be unnecessary. In the table below, we outline the Protocol’s obligations along with the corresponding DMA provisions.

As the table makes clear, each of the Protocol’s obligations except for two can be found in the DMA. The first difference of the Protocol is that that gatekeepers cannot discriminate against SMEs through prices or otherwise (Article 11(4)(h)).Footnote ²³⁷ This reflects the notion of fairness as increasing SMEs’ market opportunities discussed above, and seems aimed at a known competitive problem whereby digital platforms, for example, in food delivery, charge low fees to large multinational chains, such as McDonald’s, and much higher fees to small local businesses.Footnote ²³⁸ The difference is the obligation to identify paid ranking in search results as advertising (Article 11(4)(g)). Again, this intervention may benefit local businesses, which tend to have lower advertising budgets than multinationals. The EU already regulated such transparency pre-DMA with the Platform-to-Business Regulation.Footnote ²³⁹ Apart from these two additions, the Protocol formulates some of the obligations more boldly than the DMA. For example, it prohibits self-preferencing generally, while the DMA only prohibits self-preferencing in search ranking. Zooming in on the modest yet meaningful ways in which the Protocol charts its own course, a greater concern for local fairness and development thus becomes apparent.

The list of obligations is prescriptive. This is typical of ex ante regulation, but it also aligns well with that of African competition laws. As described above in Section D, competition laws in Africa tend to be much more elaborate than their EU counterpart, and include details on market definition, thresholds of dominance, and legal tests for abuse. In the EU, such specification did not happen through statute but through jurisprudential developments. Newer regimes can immediately include those “lessons learned.” The same can be seen in the Protocol, which includes the obligations of the DMA that are most firmly grounded in previous practice.

Having equivalent obligations in the DMA can support the Protocol. Remember, for example, how the CCSA imposed similar remedies as the European Commission in Google/Fitbit, and how it defined Google’s self-preferencing prohibition in line with the DMA’s.Footnote ²⁴⁰ However, the Protocol’s obligation can only benefit from alignment with the DMA to a limited extent. The problem is that the DMA’s obligations tend to be divisible, meaning platforms can only implement them in a certain geographic area. While this is more difficult with regard to physical products, the malleable nature of digital services allows for geographic differentiation. This means that platforms will see the Protocol’s obligations as a separate compliance cost. And with such a cost comes the risk of exit: if a platform considers the cost to be too high, it may choose to simply leave certain African markets. The continued reality of this regrettable fact was confirmed recently in Nigeria, where Meta considered withdrawing its WhatsApp service after a decision by the country’s consumer and competition authority.Footnote ²⁴¹

The Protocol is more insulated from exit threats than national competition laws. First, it covers a larger territory, namely, the AfCFTA. Platforms will be more hesitant to exit the complete AfCFTA than a specific country. Second, the Protocol appears to be drafted with this risk in mind. Notably, it imposes on gatekeepers only negative obligations, that is prohibitions—not positive obligations, as the DMA does, for example, with its obligation on search engines to share query data.Footnote ²⁴² Negative obligations tend to come with a lower compliance cost: firms do not need to radically redesign their platforms or business models, or take significant steps to accommodate rivals; they simply need to abstain from engaging in specific types of conduct.

Table 1.

AfCFTA Protocol obligations and DMA equivalents

Beyond the lower compliance cost and thus risk of exit, negative obligations tend to be more administrable, meaning they are relatively easier to enforce for competition authorities. While changes to a product or business model require continuous oversight, a negative obligation, for example, the removal of MFN clauses, requires only a one-off action. As such, the negative obligations come with a lower enforcement cost, which is welcome given the constrained resources of African authorities. It must be recognized, however, that the line between negative and positive obligations is not always neat. A ban on self-preferencing is negative but may nevertheless require a search engine to make significant product and business model changes, as the European Google Shopping saga shows.Footnote ²⁴³ In other countries, a platform like Google may not want to go through such a process. Indeed, when the Turkish competition authority banned Google from self-preferencing its comparison-shopping engine, it withdrew the product altogether instead of redesigning its search engine.Footnote ²⁴⁴ A similar situation involving a more crucial platform service, say WhatsApp, would be highly problematic.

Some inevitable difficulties notwithstanding, the Protocol’s obligations can be an important driver of digital competition enforcement. In their essence, they provide a focal point for enforcement and facilitate it by lowering the burden of proof (authorities have to prove that the platform engages in the prohibited conduct, not that said conduct is anticompetitive). Authorities would still have to cleverly prioritize enforcement, both to make good use of limited resources and to prevent prohibiting pro-competitive conduct that may be captured but problematic to overregulate. In choosing how to enforce the Protocol’s obligations, the values discussed above, in particular the value of fairness interpreted as providing greater market opportunities for local populations and small businesses, can provide useful guidance.