African Competition Authorities And The Regulation Of Digital Markets

Digital markets are a priority enforcement area for consumer and competition enforcement in Africa, but questions remain as to how best to regulate them.

Around the world, competition authorities are ramping up enforcement in digital markets through dedicated legislation (eg, the EU Digital Markets Act (DMA)), amended competition laws (eg, Germany), or new enforcement units (eg, India, Japan). But what of Africa? On the continent, there has been much talk and some movement – especially in South Africa – but enforcement remains largely within the confines of traditional competition and consumer law regimes.

Focus on vertical restraints and dominance

Vertical restraints are currently a key focus for enforcement by African competition law authorities. "Most Favoured Nation" (MFN) clauses, for example, are increasingly being viewed as automatically (or at least presumptively) anti-competitive. This was evident during the South African Competition Commission's (SACC) Online Intermediation Platforms Market Inquiry (OIPMI) and more recently in its enforcement guidance for online intermediation platforms. Similarly, in Egypt, MFN clauses are described in the new vertical guidelines among the categories of vertical agreements that are most harmful to competition and potentially per se prohibited. Price or service parity clauses are also among the practices prohibited for gatekeepers under the new COMESA Competition and Consumer Protection Regulations.

The focus on vertical restraints is linked to a broader concern around abuse of dominance. Alongside competition authorities from other emerging economies, African authorities like the SACC have expressed the need to regulate the conduct of large international tech companies, based on a perception that these firms are harming competition in local economies. However, prosecuting these firms under traditional abuse of dominance provisions raises issues of market definition and market power that can be difficult for regulators to overcome. This perhaps explains the lack of enforcement proceedings so far, as well as regulators' efforts to find other, easier paths to achieve the same outcomes.

Adapting existing tools

Significant question marks therefore remain as to the most appropriate and effective way to regulate digital markets in Africa. The most common approach so far has been to apply – and, in many cases, stretch – existing enforcement tools.

• Authorities with a dual competition and consumer mandate have sought to rely on consumer enforcement rather than competition enforcement. This can allow for "easy wins" by a regulator where the conduct is perceived as "unfair" and involves consumer harm. This trend has been observed in practice across a number of African countries
• An alternative approach has been to erode the established legal standards applied in traditional competition law enforcement frameworks. This has been pursued in South Africa through (i) the reliance on market inquiry powers, and (ii) issuing enforcement "guidance" that suggests a dilution of legal thresholds of market power and identifies certain "unfair" business conduct that extends beyond traditional competition law prohibitions.

A number of jurisdictions have taken steps to tweak their existing competition legislation so that they are better suited to address the complexities of digital markets in general, or to address specific conduct that has attracted regulatory scrutiny around the world. Kenya, for example, amended its Competition Act in 2024 to include specific provisions dealing with “digital activities”.

Some authorities have set out on a third, arguably more ambitious pathway with the introduction of new legal frameworks specifically designed to regulate digital markets. Examples include the DMA-style provisions applicable to designated gatekeepers, as introduced by the recent amendments to the COMESA regime and contemplated under the AfCFTA Competition Protocol. The latter is yet to be clearly articulated and appears to have stalled pending further observation of the experiments playing out in Europe and other jurisdictions. But this path risks continental regulation being left behind, as it may be too late for effective intervention by the time the necessary tools have been put in place. It also means continued legal uncertainty for firms operating on the continent. Will they face materially different consumer and competition law challenges in Africa compared to those that they are currently attempting to resolve in other jurisdictions?

African regulators today face a pressing choice in how they go about regulating digital markets. While consumer enforcement may provide an avenue for quick (and often important) interventions to prevent consumer harm in digital markets, broader structural questions will have to be answered through more nuanced enforcement of competition laws (within existing or slightly adapted frameworks) or through purpose-built ex ante regulation. But entirely new frameworks take time to develop and adopt, and their practical effectiveness remains unclear. Reliance on existing and slightly adapted frameworks may therefore be the most effective option – particularly if the objective is for African regulators to play a meaningful role in the shaping and development of digital markets in their respective jurisdictions. The hope is that this can be done without undermining legal certainty and the objective, evidence-based approach to regulation that has historically been a hallmark of traditional competition law enforcement.

Digital markets remain a priority for African regulators

Digital markets continue to be highlighted as a priority area for enforcement by African regulators, perhaps second only to basic food and agriculture. There are a number of ongoing discussions and initiatives among national and regional African authorities, often also in collaboration with United States and European regulators, that are focussed expressly on this topic. In March 2024, the Africa Heads of Competition Authority Dialogue meeting focussed on digital markets and included a presentation by the US Federal Trade Commission (FTC) on its experience and challenges on competition enforcement in digital markets. The SACC also shared its experience on competition enforcement in digital markets. In June 2024, the COMESA Competition Commission (as it then was) held a capacity building conference, during which two of the five days were dedicated to FTC training on digital markets. In early 2025, the ECOWAS Regional Competition Authority published a report on its own cross-country digital market study. This report emphasised the importance of enhancing competition in digital markets but identified inadequacies in competition, consumer protection, the regulatory framework and infrastructure among member states.

The road ahead

It remains to be seen how these efforts translate into concrete enforcement activity, and whether they give rise to further evolution of Africa's competition law regimes – particularly as they relate to digital markets. As mentioned above, there appear to be a number of paths open to African regulators, each of which has been pursued to varying degrees across the continent so far. More decisive action will likely be required if the objective is for African regulators to play a meaningful role in the shaping and development of digital markets in their respective jurisdictions.

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