Mergers without borders are emerging, led by changes to African nations' laws and regional bodies

Mail & Guardian

6 days ago

Africa's evolving merger-control ecosystem can serve as a driver for intra-African trade
Africa's merger-control regimes are experiencing a healthy transformation, driven by proactive national and regional regulators and underpinned by the ambitions of the African Continental Free Trade Area's (AfCFTA) Competition Protocol. Together, these developments reflect an emerging commitment to balancing national priorities with the benefits of a harmonised, cross-border competition architecture.
Across the continent, competition authorities are refining their own competition frameworks and laying foundations for deeper integration. The Economic Community of West African States's (Ecowas) Competition Regulatory Authority (ERCA), although still embedding itself, has similar ambitions to the more established Common Market for Eastern and Southern Africa Competition Commission. Both envision operating as streamlined 'one-stop shops' for merger filings within their respective blocs — although ERCA's progress to date has been somewhat uneven among its member states.
Having become fully operational in October 2024, the ERCA has moved quickly. It has already processed several merger notifications and granted clearances, typically reaching a decision within two to three months. Its newly published
Guidelines on Mergers and Acquisitions, 2024
provides both procedural clarity and substantive guidance for evaluating transactions under the Ecowas Community Competition Rules.
This regional momentum is also prompting national legal reforms. Several Ecowas states are updating domestic laws to align more closely with the ERCA. The Gambia has tabled new competition legislation, while Sierra Leone and Liberia are pursuing revisions to their competition laws. For investors, the ERCA's oversight offers welcome certainty, particularly in jurisdictions where domestic regimes are still evolving.
Meanwhile, the East African Community Competition Authority is advancing its merger framework, aiming to start accepting merger filings by October 2025. The authority is also prioritising cross-regional collaboration — in June 2025, it signed a memorandum of understanding with the Common Market for Eastern and Southern Africa Competition Commission to coordinate on mergers and consumer protection matters that straddle both blocs. While this agreement sets a cooperative foundation, additional instruments will be essential to operationalise it fully. Further agreements with Kenya, Rwanda and Tanzania seek to streamline procedures and minimise duplicate filings, a critical step towards making the region more attractive for cross-border transactions.
In East Africa, new national regimes are poised to come fully online. Uganda's Competition Act, enacted in 2021, establishes merger control as a key function, though full implementation is pending the finalisation of supporting regulations. Similarly, in Rwanda, supporting legal instruments are needed before the merger-control regime can become mandatory. Meanwhile, Tanzania recently overhauled its Fair Competition Act, explicitly allowing mergers to proceed on public interest grounds even where they might otherwise substantially lessen competition. The Tanzanian authority has also recently bolstered its staff capacity to enable more rigorous merger scrutiny.
South Africa stands apart in that it is not in a regional merger-control system. Yet its domestic regime is evolving in ways that could influence the broader continental conversation — particularly through its intensified focus on the public interest outcomes of mergers. The Competition Commission's expectation is that merger transactions should advance ownership transformation, including through employee share ownership schemes for historically disadvantaged persons.
Although this approach has been met with investor concern, the commission has shown a measure of flexibility in accepting alternative public interest paradigms where ownership outcomes are impractical.
Encompassing 54 of 55 African Union member states, and with 48 ratifications, actual trade under AfCFTA remains limited to a pilot group under the Guided Trade Initiative, which began with only eight members and now includes 23 (and counting).
Once operational, the AfCFTA Competition Protocol will introduce a new layer of competition law scrutiny across the continent. The protocol incorporates public interest considerations into its merger-control framework.
Although AfCFTA does not create a single market and sovereignty remains intact, the African Competition Authority will have jurisdiction in cases that reach the supranational level
Notably, Article 11 of the Competition Protocol advocates for the identification of digital gatekeepers for core platforms. But most African jurisdictions, whether at domestic or regional level, do not yet have the laws in place to accommodate this. Kenya is a frontrunner and is currently amending its legislation to this effect.
Collectively, these regional and national shifts reveal an African merger-control landscape that is both integrating and diversifying. Regional regulators are building frameworks designed to simplify cross-border compliance while national authorities continue to adapt their laws to support these ambitions.
If successful, Africa's evolving merger-control ecosystem could serve not only as a safeguard against anti-competitive consolidation, but also as a driver for intra-African trade and inclusive growth, fulfilling both the letter and the spirit of the AfCFTA.
Xolani Nyali is a partner, and Nazeera Mia a knowledge and learning lawyer, at Bowmans South Africa.