Is the Namibian Competition Commission Becoming a Super Regulator?

The Namibian Competition Commission (NaCC) has been increasingly active in recent years, asserting its authority in regulating mergers, acquisitions and market practices.

With this rise in regulatory assertiveness, questions have surfaced regarding whether the NaCC is evolving into a ‘super regulator’ – one with a level of influence that could potentially deter foreign investors.

As African economies become more integrated and competitive, understanding Namibia’s regulatory landscape is essential for assessing its attractiveness relative to other investment destinations on the continent and worldwide. 
 
CORE ROLES

The NaCC’s primary mandate is to promote and maintain competition in the Namibian market.

This involves regulating anti-competitive practices such as price fixing, monopolistic behaviour, and anti-consumer practices.
In addition, the NaCC has oversight on mergers and acquisitions, scrutinising deals that could reduce competition or harm public interest.

In recent years, the NaCC has been increasingly proactive, reviewing major transactions and blocking deals that don’t align with competition laws or public interest goals.

For instance, it has not hesitated to impose conditions on multinational corporations seeking to merge or acquire local companies, particularly when such deals might harm small and medium enterprises (SMEs), local employment, regional development goals, or reduce local ownership.
 
THE RISE OF PUBLIC SCRUTINY
 
One of the NaCC’s distinguishing features is its dual focus on both market competition and public interest considerations.
This adds an additional layer of complexity for investors.

Public interest concerns such as job creation, local industry support, addressing local ownership and empowering disadvantaged groups are factored into competition rulings.

While this focus aims to promote national economic goals, it can also result in lengthier regulatory processes and an increased scrutiny of deals.

As a result, foreign investors may face more obstacles in getting approval for transactions, especially when the deals are seen as potentially detrimental to the national and public interest.

This expansive approach to regulation may create the impression that the NaCC has the power to significantly shape investment flows in Namibia.
 
IMPLICATIONS FOR INVESTORS
 
The NaCC’s growing regulatory strength has led to concerns that Namibia is becoming less attractive as an investment destination compared to other African countries with more flexible regulatory frameworks.

The added scrutiny from the competition authority, especially when coupled with public interest concerns, can lead to uncertainty and delays in concluding deals.

For investors who prioritise regulatory stability and predictability, the NaCC’s approach might be seen as overly restrictive.

Businesses may face challenges in aligning their investment strategies with requirements set out by the NaCC.

As a result, investors could potentially turn to other African markets with more business and investment-friendly regulatory environments.
 
REGIONAL TRENDS
 
Other African nations, particularly in southern and east Africa, offer alternative investment destinations with competition regimes that may be perceived as less intrusive.

Countries like Botswana, Kenya and Rwanda, while having their own competition authorities, tend to be more focused on fostering a pro-investment climate by limiting regulatory intervention to instances of clear anti-competitive behaviour.

If Namibia’s regulatory framework is seen as overly cumbersome, especially in the context of growing public interest considerations, it could divert investor attention to neighbouring countries or other markets or regions with fewer regulatory barriers.

Moreover, Namibia competes with these nations for foreign direct investment, particularly in sectors like mining, agriculture and energy, where cross-border competition is fierce.

KEY FACTORS
 
The NaCC is undoubtedly becoming more assertive in its regulatory role, blending competition enforcement with public interest mandates.

While this ensures that economic goals such as employment and local enterprise development are considered, it could also make the investment landscape less predictable for foreign investors.

The perception of the NaCC as a ‘super regulator’ may push some investors to seek opportunities elsewhere.

However, the NaCC’s role in promoting fair competition and protecting national interests remains crucial to Namibia’s long-term economic stability.

The key for Namibia moving forward will be balancing regulatory oversight with maintaining an attractive, competitive investment environment.

Investors who understand and can navigate this regulatory complexity would still find significant opportunities in the country.

• • HB Senekal is a partner at the pan-African law firm Bowmans.