Corporate Leniency Policy still in the balance

Corporate Leniency Policy still in the balance


Namibians welcomed with a sigh of relief, President Hage Geingob’s announcement – during the State of the Nation Address (SONA), last week that his administration will push for the enactment of the tabled Whistle Blower Bill this year, as a sign of government’s commitment to accountability and a society that is open and democratic.
Be that as it may, government is yet to push through a crucial piece of legislation, which if ratified will prove to be a highly potent weapon in the arsenal of the Namibian Competition Commission (NaCC) – in its quest to clamp down on business cartels.

This writer can reveal that the NaCC proposed Corporate Leniency Policy (CLP) is still hanging in the balance, pending effective interventions from the powers that be – amongst them the Office of the Attorney General.
Leniency policies allow a cartel member to secure immunity from prosecution, or significantly reduced fines, if they come forward and confess their participation in collusive activities to the competition authority. The NaCC announced the drafting of the CLP six years ago inviting businesses to blow the whistle on cartels and in return get spared the full wrath of the competition watchdog.

By significantly incentivizing companies that come forward and report contraventions of the competition law such as price fixing, market division and bid rigging, CLPs improve effectiveness of competition regulation and reduce the cost of enforcement. Namibia is yet to reap these benefits. The NaCC’s Director for Restrictive Business Practices, Nangosora Ashley Tjipitua, is on record maintaining that the Commission has since 2011 tried to implement a CLP but to no avail. Quoted in a NaCC internal mouthpiece, Tjipitua has it that all efforts by the Commission to implement the CLP have been unsuccessful to date and that the matter at present has been halted by an outstanding opinion from the office of the Attorney General.

“In the interim the Commission is exploring the possibility of implementing a whistle blower policy and amending the Competition Act to make provision for explicit immunity powers in terms of the Competition Act,” Tjipitua maintains.

The NaCC adopted the CLP at a Board meeting in 2012 and directed that it be referred to the Minister “with the purpose of seeking consent on prescribing rules for the granting of leniency/immunity.”

It also appears that the Ministry of Trade, Industrialization and SME Development is yet to articulate its stance on the matter – six years later. Comments from the Attorney General Sacky Shanghala could not be obtained by the time of going to press. Meanwhile, it has emerged that the Commission has investigated about four cartel cases to date. These cases, this newspaper has learnt, were mainly in the transport industry, health, road side paving and insurance sector. One of these matters, it has further emerged, resulted in a settlement agreement between the Commission, Sanlam and PPS, were the contravening parties agreed to pay a penalty of N$15 million for contravening conduct.

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