Fair Competition and Consumer Protection Act, No. 5 of 2018

75. Repeal and Savings. IV ACT NO. 5 OF 2018 I ASSENT {DR. ALI MOHAMED SHEIN} PRESIDENT OF ZANZIBAR AND CHAlRMAN OF THE REVOLUT IONARY COUNCIL ~~ ~cL,, ...................................................... , 2018 AN ACT TO REPEAL THE ZANZIBAR FAIR TRADING AND CONS UMER PROTECTION ACT, NO. 2 OF 1995 AND ENACT THE NEW FAIR COMPET ITION AND CONSUMER PROTECTION ACT, TO PROVIDE FOR BETTER PROVISIONS AND OTHER MATTERS RELATED THERETO ENACTED by the House of Representatives of Zanzibar. PART ONE PRELlMJ NARY PROVfSTONS Short title and l. This Act may be cited as the Fair Competition and Consumer Protection Act, Commence- 2018 and shall come into operation upon being assented to by the President and ment. published in the official Gazette. Interprelation. 2. In this Act, unless the context othenvise requires: "acquisition" in relation to shares or assets means acquisition, either alone or jointly with another person, of any legal or equitable interest in such shares or assets but does not include acquisition by way of charge only; "affiliated" means associated with each other, formal ly or in formally, by shareholding or otherwise; "agreement " means any form of agreement, whether or not legally enforceable, between enterprises which is implemented or intended to be implemented in Zanzibar or in a part of Zanzibar, and includes an oral agreement, a decision by an association or enterprises, and any concerted practice; "aid to trade" means all such services such as banks, insurance, transport, warehousing and advertisement utilized in the facilitation or trade; "allocation parceling or sharing of markets or customers" means to express ly or impliedly agree to divide a market between competitors so as lo limit the right of any of the competitors to do business within a defined geogi-aphical teffitory, a defined product category, service or to certain specified customers with result of el iminating or restraining competition between such competitors; "anti-competitive trade practices" includes activities like price fixing, marketing monopolization, collusion, formation of carlels, group boycott, hoarding, product bundling and tying and the likes; "assets " in relation to an enterprise, means: (a) all tangible assets of the enterprise, including its shares, other financial securities and brands; (b) all intangible assets of the enterprise, including its goodwill, intellectual property rights and knowhow; "association" means a body of persons whether incorporated or not, formed fo r the purposes of furthering the interests of its members or of persons represented by its members; "business" includes a professional practice or any other activity which is carried out for gain or reward; "Chairperson of the Commission" means a Chairperson of the Fair Competition Commission appointed under section 7( I)(a) of this Act; "Chairperson of the Tribunal" means a Chai rperson of the Fair Competition TribunaJ appointed under section 26(2)(a) of this Act; 2 "collective boycott by competitors" means: (i) to prevent a party to an agreement from supplying goods or services to particular persons, or acquiring goods or services from particular persons in competition with any other party to the agreement; or (ii) to restrict or control the terms and conditions on whjch, or the circumstances in which, a party to an agreement supplies goods or services to particular persons, or acquires goods or services from particular persons, in competition with any other party to the agreement; "collusive bidding or tendering" means: (i) to fix or control the prices or terms or conditions of any bid or tender by any of the parties to an agreement at an auction or in any tender or other form of bidding, in competition with any other party to the agreement; or (ii) to prevent a party to an agreement from making a bid or tender at an auction or in any tender or other form o f bidding, in competition with any other party to the agreement. "Commission" means the Zanzibar Fair Competition Commission established under section 4(1) of this Act; "company" means a body corporate incorporated, with or without limited liability, in any part of the world and recognized by the laws of Zanzibar; "competition" means competition in a market in Zanzibar and refers to the process whereby two or more persons: (a) supply or intend to supply the same or substitutable goods or services to the persons in the same relevant geographical markets; or (b) acquire or intend to acquire the same or substitutable goods or services to the persons in the same relevant geograpllical markets; "competitor" means a person who is in competition with another person, or would so be for an agreement to which the two persons are parties, be likely to be in competition with each other; "concerted practice" means practices involving contacts or communications between competitors falling short of an actual agreement but which nonetheless restricts competition between them; 3 "conduct" includes doing or refusing to do any act, refraining otherwise than inadvertently from do ing any act, making it known that an act will not be done, making an agreement or giving effect to an agreement; "consumer" means any direct or indirect user of a product or service supplied by an enterprise in the course of business, and includes: (a) another enterprise that uses the product or service that supplied as an input to its own business; (b) a wholesaler, a retailer and a final consumer; (c) any person to whom service is rendered; "consumer contract" means a contract between a supplier and a consumer where the contract is one among : (a) contracts which the proper law is the law of Zanzibar or to whjch Pa11 Seven of this Act applies; and (b) contracts in which, the subject matter of the contract are goods or services, such goods or services are owned by the consumer; "Court" means a court of competent jurisdiction; "Counterfeiti ng" means: (a) without the authority of the owner of any intellectual property right subsisting in Zanzibar in respect of protected goods, the manufacturing, producing or making, whether in Zanzibar or elsewhere, of any goods whereby those protected goods are imitated in such a manner and to such a degree that those other goods are substantially identical copies of the protected goods; (b) without the authority of the owner of any intellectual property right subsisting in Zanzibar in respect of protected goods, the manufacturing, producing or making, whether in Zanzibar or elsewhere, the subject matter of that intellectual property right, or a colourable imitation thereof so that the other goods are calcu lated to the confused with or to be taken as being protected of the said owner or any goods manufactured, produced or made under his license; 4 "Counterfeit goods" mean goods that are the result of counterfeiting, and include any means used for purposes of counterfeiting; "Director General" means the Director General appointed under section 8( 1) of this Act; "document" includes information recorded in Wl·iting, electronic or any other form, together w ith access to the technology enabling information in electronic form to be retrieved; "dominant position in a market" means a situation where by: (a) a person is acting alone, and can profitably and materially restrain or reduce competition in that market for a period of t ime; (b) a person's share of the relevant market exceeds forty per cent; "Enterprise" means any person, profesionaJ fi rm, partnership, corporation, company, association or other juridical person, engaged in commercial activities for gain or reward, and includes their branches, subsidiaries, affiliates or other entities directly or indirectly controlled by them; "False, misleading or deceptive advertisiment" means the use of false, misleading or deceptive statements in advertising an<l in respecl of goods imported into Zanzibar market, includes the use of any language other than English or Kiswahili on advertisements and labels on such goods; "goods" means all kinds of properties but is not limited to : (a) ships, aircraft or vehicles; (b) ani mals, including fish; (c) minerals, trees or crops, whether on, under, in the sea or attached to land or not; (d) gas or electricity; (e) buildings and other structures; and (t) domestic or imported manufactured products; "Government" means the Revolutionary Government of Zanzibar; 5 "group", in relation to an enterprise, means a company or a11y other company that is holding company or subsidiary and any other company U1at is a subsidiary of the holding company; "horizontal agreement" means an agreement between enterprises which, for the purpose of that agreement, operate in the same market and are actual or potential competitors in that market; "license" means a license, permit or authority that allows the licensee to supply or acquire goods or services or to can-yon any other activity; "market" means a market in Zanzibar or a part of Zanzibar and refers to the range of reasonable possibilities for substitution in supply or demand between particular kinds of goods or services and between suppliers or acquirers, or potential suppliers or acq uirers of those goods or services; "manufacturing" means transforming, on a commercial scale, raw materials into finished or semi- finished products, and includes the assembling of inputs into finished or semi-finished products but does not include mining; "material" includes any information, documents or evidence; "Members of the Fair Competition Tribunal" means the members of the Tribunal specified under section 26(2) of this Act; "merger" means an acquisition of shares, a business or other assets, whether inside or outside Zanzibar, resulting in the change of control of a business, part of a business or an asset of a business in Zanzibar; "Minister" means the Minister responsible for trade; "output restrictions between competitors" means competitors in an agreement of preventing, restricting or controlling the production of goods or services to be supplied in competition with any other party to the agreement; "person" means natural person or any legal entity; "premise" include land, any building, structure, vehicle, vessel , aircraft or container; "President" means the President of Zanz ibar and the ChaiJ-man of the Revolutionary Councit 6 'price fixing between competitors" means to fix, restrict or control the prices, tariffs, surcharges or other charges for, or the terms or cond itions upon which, a party to an agreement supplies or acquires, or offers to supply or acquire, goods or services, in competition with any other party to the agreement; "Product recall" means to return a product to the seller or manufacturer after the discovery of safety issues or product defect that might endanger the consumers or put the maker or seller at risk of legal action ; "publish" includes on-line publication; "sale" includes any agreement to sel l or offer for sale and includes the exposing of goods for sale, the furnishing of a quotation, whether verbally or in writing, and any other act or notification by which willingness to enter into any transaction for sale is expressed; "Registrar" means a person appointed to be a Registrar of the Tribunal under section 28( 1) of this Act; "services" includes the acceptance and performance of any obligation, whether professional or not, for gain or reward, other than the supply of goods, but does not include the rendering of any services under a contract of employment; "supply" in relation to: (a) goods means the supply or re-supply, by way of sale, exchange, lease, hire or hire-purchase; and (b) services means the provision by way of sale, granl or conferment of services; "trade association" means a body of persons which is formed for the purpose of furthering the trade interests of its members or of persons represented by its members; "trade practices" means any practices related to the carrying on of any trade and includes anything done or proposed to be done by any person to which affects or is likely to affect the method of trading of any trader or class of traders or the production, supply or price in the course of trade of any goods, whether real or personal, or of any service~ 7 "Tribunal" means the Fair Competition Tribw1al established under section 26(1) of this Act; "Utility" means electricity, water supply and sanitation, petroleum and any other things as recognised by the Minister; "ZURA" means the Zanzibar Utility Regulatory Authority; "ZMA" means the Zanzibar Maritime Authority; "ZFDA" means the Zanzibar Food and Drugs Agency; "ZBS" means the Zanzibar Bureau of Standards. Application. 3.-( 1) This Act shall apply to enterprises, Government bodies and local governments related lo fair competition and consumer protection. (2) For the purposes of this section, without affecting the meaning in other respects, the word "trade" means the sale or acquisition of a business, part of a business or an asset of a business carried on by tbe Enterprises, a Government body or a local government engaging in trade; (3) The fo llowing do not constitute engaging in trade: (a) the imposition or collection of taxes; (b) the grant or revocation of Iicenses, permits and authorization; (c) the collection of fees for licenses, permits and authorization; or (d) internal transac6ons within the Government, a Government body or a Local Govenunent. (4) Any reference in this Act to the supply of: (a) goods, shall be construed as the supply of goods in or from Zanzibar; or (b) services, shall be construed as the supply of services in or from Zanzibar. 8 PARTTWO THE FAIR COMPETITION COMMISSION Establishment 4.-( 1) There is hereby established a Commission to be known as the Fair Competition of the Commission, to exercise according to jurisdiction, powers and authority conferred by Commission. law or under this Act. (2) The Commission shall be a body corporate with perpetual succession and a common seal and shall, in its name, be capable of: (a) suing and being sued; (b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable and immovable property; (c) entering into contracts; and (d) doing or performing all other acts or things for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate. Functions 5.-( l) The functions of the Commission shall be: of the Commission. (a) to monitor, control and prohibit any acts likely to adversely affect competition and trading in Zanzibar; (b) to carry out investigation, on its own initiative or at the request of any person, in relation to the conduct of business) in order to determine whether a person or enterprise is carrying on anti-competiti ve trade practices; (c) to monitor pricing of contro lled goods and set indicative selling price for such goods in accordance with the Act relating to trade; (d) to conducl surveys and <.:0lltcl dala on costing, supply and distribution of both controlled and non controlled goods and make appropriate recommendations; (e) to carry out investigations on it::; own initiative or at the request of any person who may be adverse ly affected by an existed merger; (f) to take actions or measures as it considers necessary to prevent or redress the creation of a merger or the abuse of a dominant position by any enterpri se; 9 (g) to provide information to any person engaged in business, regarding their rights and duties under the provisions of this Act; (h) to provide information and guidance to consumers regarding their rights and duties under this Act; (i) to undertake studies and make available lo the public, reports regarding the operation of the provisions of this Act; U) to conduct, as required, any hearings with interested persons or parties on implementation of this Act; (k) to determine whether restrictive business practices are occurring or have occurred; (I) to effectively control , manage and perform the functions of the Commission under this Act; (m) to promote and enforce the compliance with this Act; (n) to promote pub Iic knowledge, awareness and understanding ofobligations, rights and remedies under this Act and the duties, functions and activities of the Commission; (o) to make available to consumers, information and guidelines relating to obligations of persons under this Act and the rights and remedies available to consumers under this Act; (p) to carry out enquiries, studies and research into matters relating to competition and the protection of the inten;sts of consumers; (q) to undertake investigations in order to remove impediments to competition. including entry into and exit from markets, in the economy as a whole or in particular sectors and publicize the results. (r) to carry out study on policies, procedures and programmes of regulatory authorities so as to assess their effect s on competition and consumer welfare and publicize the results of such studies; (s) to make consultation with consumer bod ies, regulatory authorities, business organizations and other interested persons on matters relating to fair trading and competition; or 10 (t) to do all necessary acts and things, incidental or conducive to the better carrying out of its functions under the provisions of this Act; Powers of the 6. The Commission shall have the fo llowing powers: Commission. (a) to issue orders and directi ves in accordance with the provisions of this Act; (b) to impose financial penalties or remedies on any enterprise which conducts its business in breach of the provisions of thi s Act; (e) to require any enterprise to provide information to the Commission as it may require in the performance of its functions; (d) to hold enquires and investigation in the performance of the provisions of this Act; (e) to enter premises and conducting inspection when dully authorized by the Commission; (f) to look into documents, copies or abstract of copies and i r appropriate retain them; (g) to appoint specialist or techni cal expert to assist and carry out enquires and investigation in any area or matter that falls under the j urisdiction of this Act; (h) to take sam ples of products for conducting investi gation; (i) to impose such charges or fees as may be required under this Act or Regul alions made under it; U) to seize the counterfeits or defective goods which are not related to standards and dispose in collaboration with relevant authorities. Members 7.-(1) The Commission shall be composed of six Members as follows: of the Commission. (a) a Chairperson who shall be appointed by the President and who shaU hold at least a University Degree in Economics, Business Adm inistration, Public Administration, Finance or Law and with at least ten years of experience; (b) Director General as an Ex-officio who shall be Secretary of the Commission; and 11 (c) Four other members appointed by the Minister based on gender. (2) Other members of the Commission shall qualify to be appointed by the Minister if they have knowledge and experience in l ndustry, Commerce 1 Economics, Law, Public Administration or other related fields. (3) In appointing the members under subsection (l)(c) of this section, the Minister shal l consider private sector participation. Secretariat 8.-(1) There shall be a Secretariat of the Commission which shall be headed by the of the Director General who shall be appointed by the President. Commission. (2) A person shall qualify to be a Director General if: (a) he is a Zanzibari; (b) he is a holderofat least first degree inBusinessAdministration, Economics, Business Management, Law, Public Administration or equivalent from a recognized University by the Government; (c) has a working experience at least ten years in the related field mentioned under this section. Functions 9. The Secretariat shal l have the followi ng functions: of the Secretariat. (a) to coordinate and follow up the implementation of the directives of the Commission; (b) to implement day to day activities of the Commission and all decisions made by the Commission; (c) to prepare and submit to the Commission a comprehensive annual implementation report; (d) to prepare budget and calendar of performance of the Commi:ssion: (e) to design and effectively implement strategic pla□; and (f) to perform any other fun ctions as directed by the Commission. Tenure of the 10. The Chairperson and other four members of the Commission shall hold office Members. for the following fixed terms and may be reappointed: (a) the Chairperson, four years; 12 (b) four other members, three years. Allowances. 11. The Chairperson and other members of the Commission shall be entitled to be paid such al lowances and other benefits as the Minister may determine from time to time in accordance with the provisions of the Public Service Act. Vacancy. 12. The office of a member of Lhe Commission shall become vacant: (a) upon his death; (b) ifhe, without sufficient cause, fai ls to attend three consecutive meetings of the Commission; (c) if he resigns or becomes in any manner disqualified from membership of the Commission; or (d) if he becomes incapacitated by reasons of physical or mental health to perform his duties. Meetings of 13.-( 1) The Commission shall meet ordinarily once in every three months and may the meet at any time when need arises for the discharge of its business. Comm ission. (2) The Director General shall convene meetings of the Commission as directed by the Chairperson. (3) Subject to the provisions of subsections (1) and (2) of this section, the Chairperson may convene meetings of the Commission, after consultation with members, at such times at government recognized place. (4) The Chairperson shall preside at meetings of the Commission and in the absence of tl1e Chairperson, members may appoint one amongst themselves to preside at meeti11gs. (5) A quorum shall be three members including the Chairperson. (6) All questions shall be decided by majority of votes of the members present and voting and, in the event of an equality of votes, the presiding member shall have a deliberative and a casting vote. (7) The Chairperson may decide that particular meetings of the Commission should be held by telephone, closed circuit television or other methods ofcommun ication as he thinks fit. 13 (8) Minutes of resolution shall be signed by all members of the Commission and shall constitute a valid resolution of the Commission as if it were duly passed at a validly constituted meeting of the Commission. Delegation. 14. The Commission may delegate a power to the secretariat for proper discharge of its functions subject lo provisions of this Act. Initiating a 15.-( l ) The Commission may initiate complaint on its own and undertake a legal complaint. action against an alleged prohibited practice. (2) A person may: (a) submit information concern ing an alleged prohibited practice to the Commission, in any manner or form; or (b) submit a complaint against an alleged prohibited business practice to the Commission. (3) The Comrnjssion shall determine consumer complaints and provide deci sion to such complaints. (4) Where a person or complainant is not satisfied with the decision made under subsection (3) of this section, he may appeal to the Tribunal. Consumers' 16.-( 1) Consumers may establish their own associations to provide a forum through Association. which consumers protection issues could be addressed to the Commission. (2) Consumers may consult the Commission in aU trade matters related to fair competition and consumer is protection. Establishment 17. -( 1) The Commission shall establish one or more divisions for better performance of divisions of its functions under the provisions of this Act. of the Commission. (2) The divisions established under subsection (1) of this section shall include divisions responsible for: (a) restrictive trade practices; (b) consumer protection and anti-counterfeit; (c) corporate services; and (d) any other division where the Commission thinks appropriate. 14 Staff of the 18. -(I) The Commission shall employ such staff as it considers appropriate to Commi~sion. enable it to perform the functions of the Commission in accordance with the provisions of the Public Service Act. (2) The Commission may engage Consultant or Expert, as it considers appropriate, to assist it to perform its functions and exercise its powers. Confidentiality. 19. -(1) A person who gives or discloses any material to the Commission, whether under compu lsion of law or otherwise, may claim confidentiality status in respect of the whole or any part of the material. (2) A claim for confidentiality may be made at any time before the material is disclosed to persons outside the Commission without any breach of the provisions of this section. (3) In the case of oral evidence, the claim may be made orally at the time of giving the evidence and in all other cases it shall be in writing, signed by the person making the claim specifying the material and stating the reason for the claim. (4) lf the Commission is satisfied that the material is of a confidential nature and : (a) its disclosure could adversely affect the competitive position of any person; or (b) is commercially sensitive for some other reason; the Commission shall grant confidentiaLity status for the material. (5) A person who contravenes the provLsions of tl1is section, commits an offence and upon conviction is liable to a fine of not less than one million shillings and not exceeding five million shillings or to imprisonment fo r a tenn of not less than three months and not exceeding six months or both such fine and imprisonment. Conflict of 20.-( I) An employee or member of the Commission shall be considered to have a Interest. conflict of interest for the purposes of this Act, if he acquires any pecunjary, personal relationship or other interest that could conflict with the proper performance of his duties. (2) Wl1ere at any time an employee or members of the Commission have a confl ict of interest in relation to: 15 (a) any matter before the Commission for consideration or determination; or (b) any matter which the Commission could reasonably expect might come before it for consideration or determimttion; shall disclose the conflict of interest to the Commission and refrain from taking part. in the consideration or determination of the matter. (3) Where the Commission becomes aware that an employee or member has a conflict of interest in relation to any matter before the Commission, the Commission shall direct the employee or member to refrain from taking part, in the consideration or determination of such matter. Funds of the 21.-(1) Fw1ds of the Commission shall comprise: Comm ission. (a) funds allocated to the Commission by the House of Representatives; (b) funds allocated to the Comm ission from the funds of ZURA, ZMA, and such other regulatory authorities for work done by the Comm ission or as provided in other relevant legislations or as may be agreed between the Commission and those authorities; (e) grants, donations, or other contributions made to the Commission; (d) fees collected by the Commission; and (e) other payment due to the Commission in respect of any matter incidental to its functions. Application 22. The funds of the Commission shall be used to facilitate the functions of the of the funds of the Commission. Commission. Accounts and 23.-( I) The Commission shall keep proper books of accounts not later than three financial months after the end of the financial year in respective of the following, and submit audit. to the Controller and Auditor General: (a) a statement of the assets and liabilities of the Commission on the last day of the financial year; (b) a statement of income and expenditure during such financial year; and 16 (c) any other financial report as may be required. (2) All incomes collected from services rendered by the Commission shall be deposited to the bank account subject to and in accordance with the Public Finance Management Act. Annual 24. The secretariat of the Commission shall, within three months after the end repo11. of each financial year and subject to the approval of the Commission, submit to the Minister an annual report in respect of that year containing: (a) a copy of the audited accounts of the Commission, together with the auditor 's report on those accounts; (b) a report on performance against key targets and any other related information; (c) report on the operations of the Commission during the financial year; and (d) such other information on the activities of the Commission as the Minister may require. Budget. 25. Before the end of each financial year, the Commission shall prepare or cause to be prepared a budget for the following financial year and shall submit the budget to the Minister. PART THREE FAIR COMPETITION TRIBUNAL Fair 26.-(1) There is established a Tribunal to be known as the Fair Competition Tribunal Competition to exercise the functions conferred upon it by this Act. Tribunal. (2) The Tribunal shall be composed of: (a) the Chairperson who shal l be appointed by the President after consultation with Chief Justice; and (b) four other members who shall be appointed by the Minister based on gender. (3) Tht:: Chairperson specified under subsection 2(a) of this section, shall be a High Court Judge. 17 (4) In the appointment of members under subsection (2)(b) of this section, the Minister shall appoint persons wi th adequate knowledge and experience in law, economics, business, finance, and other related fields from private and public sector. (5) Members of the Tribunal, other than Chairperson, shall hold the office for the period of three years and may be eligible for re-appointment fo r one term only. (6) The quorum for a meeting of the Tribunal shall be the Chairperson of the Tribunal and two other members. Co-opted 27. The T1;bunal may invite to a meeting any person to participate in the del iberation member. of the Tribunal. Registrar of 28.-(1) The Minister shall appoint a Lawyer to be the Registrar of the Tribunal. the Tribuna l. (2) The Registrar shall perform all administrative functions of the Tribunal as provided for under this Act and its Regulations. (3) The Registrar shall, after consultation with the Chairperson of the Tribunal, convene meetings to discuss matters or issues submitted to the Tribunal. Codes of 29.-(1) The Tribunal shall adopt codes of conduct prescribing standards of behavior Conduct. to be observed by the members and employees of the Tribunal in the performance of their duties. (2) The codes of conduct adopted or prescribed under this section shall be binding on the Tribunal, its members and employees. Seal of the 30.-(1) The Tribunal shall have a seal to be kept under the custody of the Registrar. Tribunal. (2) The affixing ofthe seal ofthe Tribunal on any document shall be authenticated by the signature of the Chairperson of the Tribunal or Registrar. Removal 31. The Minister may remove a Member from office at any time if that Member: of Member. (a) misconducts himself; (b) is incapable of carrying out l1i s duties because of ill health, or physical or mental impairment; (c) has committed a material breach of the provisions of thjs Act or Codes of Conduct to which the Tribunal is subject; 18 (d) fails to attend at least three consecutive sessions of the Tribunal without notice; (e) acquires financial or other interest as is likely to affect prejudicially his functions; (f) abuses his position as to render his continuance in office prejud icial to the public interest; or (g) resigns from his membership; (2) The Minister shall remove such member from the office of the Tribunal after conducting investigation. Functions of 32.-( l ) The Tribunal shall have functions to: the Tribunal. (a) hear and determine appeals emanating from orders and decision from Fair Competi tion Commission and other regulatory authorities; (b) issue warrants; (c) provide decisions of the hearings; (d) keep the records of all appeals and decisions of the Tribunal to the Registrar; or (e) exercise such other functions and powers as conferred upon it by this Act. (2) The Tribunal shall, in the exercise of its functions under this Act, be guided by the rules of natural justice. Powers of the 33.-(l) The Tribunal shall , in the discharge of its functions, have the fo llowing Tribunal. powers: (a) enforcing the attendance of witnesses and exami11ing them on oath, affirmation or otherwise; (b) compelling the production of documents; and (c) call a person to attend before the Commission for questioning or requesting to examine witnesses even who are abroad. 19 (2) Any decision shall be deemed to be a decision of the Tribunal if it is supported by a majority of the members. (3) A witness before the Tribw1al shall have the immunities and privileges as if he were a witness before the High Court. Judgment 34.-(l) Judgment and orders of the Tribunal shall be executed and enforced in the and Orders same manner as judgments and orders of the High Court. of the Tribunal. (2) A judgment or order of the Tribunal on any matter before it may, subject to subsection (l) of this section, be appealed to the Court of Appeal by aggrieved party. Remunerations 35. The members and the Registrar shall be paid remunerations and allowances and as the Minister shall determine aner time to time subject to the prnvisions of Public Allowances. Service Act. Obstruction of 36.-( 1) A person who: the Tribunal. (a) when summoned, fails or refuses to attend without reasonable excuse; (b) having attended as a witness, refuses or fails to take an oath or make an affirmation as required by the Tribunal~ (c) makes any statement before the TribunaJ which he knows to be false or which he has no reason to believe to be true; (d) om its or suppresses any information required by the Tribunal in the discharge ofits functions or relevant to the discharge of those functions; or (e) in any manner, misleads, obstructs, insults or disturbs the Tribunal, commits an offence and is liable to a fine of not less than five hundred thousands shilli ngs and not exceeding one mill ion shill ings or imprisonment for a term of not less than three months or both such fine and imprisomnent. Rules of 37. Subject to the provisions of this Act and upon approval of the Minister, the Tribunal. Tribunal shall make rules: (a) prescribing the manner in which an appeal shall be made to the TribunaJ and the fees to be paid in respect of an appeal; 20 (b) prescribing the procedmes to be adopted by the Tribunal in hearing an appeal and the records to be kept by the Tribunal; (c) prescribing the manner in which the Tribunal shall be convened and places where and the time at which the sittings shall be held; (d) generally for the better carrying out of the provisions of this Act relating to the Tribunal and appeals thereto. Funds of the 38.-(1 ) Funds of the Tribunal shall comprise: Tribunal. (a) fund s allocated to the Tribunal by the House of Representatives; (b) funds allocated to the Tribunal from the funds of ZURA, ZMA and such other regulatory authorities for work done by the Tribunal or as provided in other relevant legislations or as may be agreed between the Tribunal and those authorities respectively; (c) grants, donations, or other contribution made to the Tribunal; (d) fees collected by the Tribunal; and (e) other payment due to Tribunal in respect of any matter incidental to its functions. Application of 39. The funds of the Tribunal shaJI be used to fac ilitate the functions of the Tribunal. the funds of the Tribunal. Accounts and 40. The Tribunal shall keep proper books of accounts not later than three months financial audit. after the end of the financial year in respective of the following, and submit to the Controller and Auditor General: (a) a statement of the assets and liabilities of the Tribunal on the financial year; (b) a statement of income and expenditure during such financial year; and (c) any other financial report as may be required. (2) All incomes collected from services rendered by the Tribunal shall be deposited to the bank account subject to and in accordance with the Public Finance Management Act. 21 Annual Report. 41. The Registrar shall, subject to the approval of the Tribunal within three months after the end of each financial year, submit to the Minister an annual report in respect of that year containing: (a) a copy of the audited accounts of the Tribunal, together with the auditor's report on those accounts; (b) a report on performance against key targets and any other related inforn1ation; (c) report on the operations of the Tribunal during the financial year; and (d) such other information on the activities of the Tribunal as the Minister may require. Budget 42. Before the end of each financia l year, the Tribunal shall prepare or cause to be prepared a budget for the following financ ial year and shall submit the budget to the Mi.nister. PART FOUR RESTIUCTIVE BUSINESS PRACTICES Anti- 43.-(1) Any agreement, decisions or practices which have an object of prevention, competitive restriction or distortion of competition are declared as anti-competitive trade practices trade and are hereby prohibited. practices. (2) Subject to the provisions of subsection (l) o f this section, enterprises shall refrain from the following acts or behavior which abuse or create dominant position of market power: (a) the use of cost pricing to eliminate competitors; (b) price discrimination in the supply or purchase of goods or services; (c) imposing restrictions and conditions on the manufacturing, distribution or purchase of goods or services; (d) mergers, takeovers, joint ventures or other acquisitions of control of market; or (e) colluding of two or more manufacturers, wholesalers, retailers, contractors or suppliers of services, in setting a uniform price in order to eliminate competition. 22 (3) A person who contravenes this section commits an offence. Anti- 44.-(1) A person shall not make or give effect to an agreement if the object is to competitive prevent, restrict or distort competition. Trade agreements. (2) An agreement in contravention of subsection (1) of thjs section, 1s unenforceable under this Act. (3) This section does not apply to an agreement to the extent it provides for a merger which is free from monopol y of market. (4) A person who contravenes this section, commits an offence and upon conviction is liable to a fine of not less than one million shillings and not exceeding five million shillings or to imprisonment for a term of not less than three months and not exceeding six months or both such fine and impri somnenl. (5) A person who has suffered loss as a result of any anti-competitive agreement or trade practice may apply to the Commission for compensation and the Director General may, on behalf of the Commission if satisfied that the circumstances of the case so warrant, order the parties whose agreement or trade practice is anti-competitive to pay to the person such compensation as the Commission shall detennine. Prohibition 45.-(1) A person shall not make or give effect to an agreement, if the agreement is: of certain agreements irrespective of (a) price fi xing between competitors; their effects on (b) a collective boycott by competitors; competition. (c) output restrictions between competitors; (d) col lusive bidding or tendering; or (e) allocation, parceling or sharing of markets or customers for any non- competitive purpose. (2) An agreement in contravention of this section is unenforceable w1der this Act. (3) A person who contravenes this section, commits an offence. Hoardi ng and 46. It shall be un lawful for any person whether personally, through agents or other restriction enterprise or in conjunction with others or tlu·ough any arrangement or agreement: of supply of goods. 23 (a) to make hoarding of goods as to create scarce availability of the goods whether for the purpose of bringing about price increase or not; (b) to make such hoarding of goods for the purpose of bringing about price increase; or (c) to destroy the goods or render them unserviceable or destroy the means of production and distribution whether directly or indirectly for the purpose of bringing shortage of the goods or price increase for the same. Trade 47.-(1) Subject to the provisiosn of this Act, the following trade agreements are agreements. prohibited: (a) fixing prices between persons engaged in the business of sell ing goods or services; (b) limiting or restricting the terms and conditions of sale or supply or purchase or purchased goods or services; (c) collusive tendering for the restrictive competition; (d) collective action to enforce agreement that affect corn petition; (e) refusing to supply goods and services to potential purchasers or customers; or (f) collective denials of access to an arrangement or association which is crucial to competition. (2) A person who contravenes this section, commits an offence. Misuse of 48.-( I) A person with a dominant position in a market shall not use his position of market power. dominance to prevent, restrict or distort competition in market. (2) For the purposes of subsection (1) of this section, a person holding a dominant position in the relevant market shall not: (a) directly or indirectly impose unfairly l1igh or low selling or purchasing prices or other unfair trading conditions; (b) limit production or technical development and innovation to the prejudice of consumers; 24 (c) discriminate between consumers or suppliers; or (<l) conduct any such other related actions that misuse market power. (3) A person holding a dominant position in the market shall not engage in any conduct that excludes, or is intended to exclude its competitors from the market by means of: (a) predatory pricing; (b) price squeezing; (c) cross subsidization; (d) market sharing; or (e) any such other related conducts. (4) A person holding a dominant position in the relevant market shall not engage in any conduct that harms the competitive position of competitors by: (a) a refusal to deal; (b) a refusal of access to an essential facility; (c) tying arrangements; (ct) discriminating among customers or suppliers; or (e) any such other related conducts. (5) A person holding a dominant position in the market shall not engage in any conduct whereby: (a) the resale prices or conditions are directly or indirectly fixed; (b) customers or competitors are fo reclosed from access to sources of supply or from access to outlets; (c) movement of goods or services between different geographical areas are restricted; (d) an intellectual property right is used in any way that goes beyond the limits of its legal protection; or 25 (e) any other such related conducts. (6) A person who contravenes this section, commits an offence. Mergers 49.-( I) Any merger or acquisition that creates or strengthens a position ofdominance and in a market which distorts competition is prohibited. acquisitions. (2) Where a merger creates or strengthens a position of dominance under subsection ( I) of this section, the Conunission shall assess the strength of competition in the relevant market by taking into account the following factors : (a) the actual potential level of import competition in the market; (b) the ease of entry and exit into the market, including tariffand regulatory barriers; (c) the level of concentration in the market; (d) the degree of countervailing power in the market; (e) the merger whjch result in the increase prices or profit margins; (f) the extent to which substitutes are avai lable in the market; (g) efficiencies in the market, including growth, innovation and product difforentiation; (h) where Lhe merger will result in the removal of effective competitor; (i) the nature and extent of vertical integration in the market; and U) the merger results or is likely to result in benefits to the public in one or more of the following ways: (i) by contributing to greater efficiency in production or distribution; (ii) by promoting technical or economic progress; (iii) by contributing to greater efficiency in the allocation of resources; (iv) by protecting the environment and the merger; (v) prevents, restrains or distorts competition no more than is reasonably necessary to attain those benefits; and 26 (vi) the benefits to the public resulting from the merger outweigh the detriments caused by preventing, restrairung or distorting competition; (3) After having examined the merger, the Comm.ission shall allow the merger to proceed its implementation or prohibit implementation, if it affects competition in the market. (4) The Min ister may review the decision of the Commission on merger, if he is satisfied that: (a) the decision was based on incorrect information; (b) the approval was obtained by deceit; or (c) the firm concerned has breached an obli gation or condition attached to the decision; (5) A person who contravenes this section, commits an offence. Notification, 50. Mergers, takeovers, joint ventures or other acquisitions of control, including Investigation, interlocking Directorships, whether of a horizontal, vertical , or conglomerate nature, Prohibition shall be notified to the Commission when: of merger and market tlominant. (a) at least one of the enterprises is established within Zanzibar; and (b) the resultant market share in the country, or any substantial part of it, relating to any product or service, is likely to create market power, especially in industries where there is a high degree of market concentration, where lhere are barriers to entry and where there is a lack of substitutes for a product supplied by firms whose conduct is wider scrutiny. PART FIVE PROVISIONS RELATING TO MISLEADING AND DECEPTIVE CONDUCTS Misleading 51. Any trader or seller or retailer shall not be allowed to engage in a conduct that or deceptive is misleading or deceptive or is likely to mislead or deceive consumers. conduct. False or 52.-(1) A person shall not be allowed to act the following misconducts in the supply misleading of goods or services: Representations. 27 (a) falsely represents that the goods are of a particular standard, quality, grade, composition, style or model, origin or have had a particu lar hjstory or particular previous use; (b) false ly represents that the services are of a particular standard quality or grade; (c) falsely represents that the goods are new or of a specified age; (d) falsely represents that a particular person has agreed to acquire goods or services; (e) falsely represents that the goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have; (f) falsely represents that he has a sponsorship, approval or affiliation he does not have; (g) makes a fa lse or misleading representation with respect to the price of goods or services; (h) makes a false or misleading representation concerning the availability of facilities for the repair of goods or of spare parts for goods; (i) makes a false or misleading representation concerning the place of origin of goods; U) makes a false or misleading representation concerning the need for any goods; or (k) makes a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy. (2) A person who contravenes this section, commits an offence. PART SIX UNFAIR BUSINESS PRACTICES Bait 53.-(l) A person shall not advertise the supply or sell of goods or services at a Adve11ising. specified price that he knowingly will not be able to offer to a customer or consumers. 28 (2) A person who advertised the price for the supply of goods or services shall offer such price for period that is reasonable having regard to the nature of the market in which he carries on business and the nature of the advertisement. (3) If a person stipulated under subsection (2) of this section, fails to offer goods or services at the price advertised, he may: (a) procure another person to supply goods or services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and at the advertised price~or (b) offer to supply immediately, or to procure another person to supply within a reasonable time, equivalent goods or services to the customer in a reasonable quantity and at the price of goods or services that were advenised. Accepting 54. A person shall not be required to accept payment or other consideration of payment goods or services where, at the time of the acceptance he is aware that: without intending or being not (a) he is not able to supply the goods or services; able to supply goods or (b) he will supply materially different from the goods or services in respect services. to wl1ich the payment or other consideration is accepted; or (c) there are reasonable grounds of which he is aware might not be able to supply the goods or services within the period specified by him, if no period is specified, within a reasonable time. Unfair trading. 55.-( l) A person shall not conduct unfair trade practice consisting of using various deceplive, fraudulent, or unethical methods to obtain or engage in business. (2) Subject to subsection (1) of this section, unfair trading includes misrepresentation, false adve11ising, tied selling, and other acts that are declared unlawful by this Act. Safety 56. A person shall not supply any product which: standards. (a) is likely to cause injury to health or physical harm to consumers, when properly used; or (b) does not comply with the consumer safety standards which has been prescribed under any law. 29 Harassment or 57. A person shall not use physical force or undue harassment or coercion in coercion. connection with the supply or possible supply of goods or services to a consumer or the payment fo r goods or services by a consumer. PART SEVEN PROVISIONS RELATING TO CONSU MER PROTECTION Sales of 58. A person is allowed to supply or sell only the goods which are certified goods. accord ing to the requi red standard and J eclared to be fit for human consumption under any written laws. Price display. 59.-( l ) A seller, trader, or retailer shall be required to display the price of goods or service lo be sold to the consumers. (2) A person who contravenes this section, commits an offence and upon conviction is liable to a fine of not less than five hundred thousands shi llings and not exceeding three mill ion shillings or to imprisonment for a term of not less than three months and not exceeding six months or both such line and imprisonment. Product 60.-( I)/\ seller of electronic, electrical or hardware is required to issue a guarantee guarantee. certificate to consumer at the time of sale. (2) The seller specified under subsection (1) of this section is required to replace, repair or refund the price of the goods sold in case of any defect detected within the specified time of the guarantee. (3) A seller of cosmetics, drugs, soap and detergent d ectronic and electrical equipmt:nt shall provide the directions of usage of such products. (4) A service provider is requi red to assure the consumer that he shall provide extended services in case of any damage or loss arising out of his services and he shall refun d the price said or compensate within a specified time. (5) The terms of guarantee or services extended by a seller or service proviuer to a consumer sha11 be clearly sel out at the time of sale. Price 61.-(1) The Mi nister sball prepare and publish in the Zanzibar Government Gazette structure. the price structure of controlled goods speci fied under the Zanzibar Trading Act and its regulations. 30 (2) The price structure shall be prepared after taking into consideration: (a) the f:luctuation of domestic price; (b) international market price; (c) variation in exchange rate; and (d) any other factor associated with price fluctuations in tbe market. (3) A seller or supplier may, at any time when market price of such controlled goods changes, apply to the Minister for the review of the price structure. (4) The seller or supplier shall sell such goods at price not exceeding the price as prescribed in the price structure. (5) Without prejudice to the policy of free market economy and trade liberalization, the Minister may regulate the price of any product whenever there is high fluctuation of price in market and such high price affects consumers. (6) The procedures for the preparation of price structme of controlled goods, and regulation of high price of other goods, shall be determined in the Regulations. Manufacturers' 62.-(l) The Manufacturers or Agents shall be obl iged to consider the followin g or Agents' while supplying goods to another person: obi igations. (a) the description of the product related to the order; (b) the product corresponds to the sample; (c) the characteristics of the goods are proper; (d) the goods are suitable to meet the requirements of the suppliers or consumers; and (e) the goods are of merchantable quality. (2) A Manufacturer or Agent who fails to comply with subsection (1) of this section, commits an offence and upon conviction shall be liable to compensate the supplier or consumer for the loss or damage that occured during the time of supplying. 31 Product 63.-( l )Where the product or goods are found to be defective, cause injury, endanger recall. the consumers, do not comply with standards or have dangerous characteristics, shall be declared to be unfit for human consumption. (2) The Minister shall order the supplier or manufacturer to rc:call the product from tbe market at the expense of supplier or manufacturer. (3) Any goods or products recalled from tbe market shall be disposed according to procedures specified under the regulations. Prohibition of 64.-( I) A person shall not be allowed to supply or sell any goods to a consumer if: unsafe goods .. (a) the goods do not comply with the required standards; (b) the goods are unfit for buman consumption; (c) the importation or supply of such goods are banned in Zanzibar; or (cl) the date of such goods has expired. (2) For better implementation of subsection ( 1) of this section, laws governing the standards and safety of the products, shall apply accordingly. Prohibition of 65.-(1) It is prohibited for any person to engage in the importation, supplying or Counterfeit selling counterfeit goods in the market place. goods. (2) A person shall be purported to engage in counterfeit action if he: (a) forges any trademark; (b) falsely applies to goods to any trade mark or any mark so nearly resembling a trademark for the purpose deceiving; (c) makes any die, block, machines, or other instrument for the purpose of forging, or for being used for forging a trademark; (d) applies any false trade description to goods; or (e) disposes of or has in his possession, any die, block, machine, or other instrument for the purpose of forging a trademark. 32 (3) A person who contravenes the provisions of this section, commits an offence. Seizure of 66. It will be the duty of the Commission to seize any goods found to be Lmsafe or unsa'fe and counterfeit. counterfeit. products. Disposal of 67.-( 1) Any goods found to be W1safe or counterfeit shall be disposed by the unsafe and Commission through the procedures as stipulated in the Regulations. counterfeit goods. (2) The Commission shall determine the cost of seizing or disposing of such goods at the expense of manufacturer, seller or supplier. (3) The Com1nission shall issue the certificate of disposal after disposing unsafe or counterfeit products. PART EIGHT MISCELLANEOUS PROVISIONS Direcrives of 68. The Minister may give to the Commission, directives of a general or specific the Minister. nature as to the performance of its functions and the Commission shall give effect to such directives according to th is Act. Compl iance 69.-( I) Where the Commission is satisfied that a person has committed or is likely orders and to commit an offence against this Act other than Part Four or Five, it may make a agreements. compliance orders under this section against that person and any person involved in the offence. (2) A person who fails to comply with the orders made against him, comm its an offence. (3) A compliance order may require a person to refrain from conduct in contravention of this Act or to take actions to comply with this Act, and shall specify the time for compliance with the order and the duration of the order. (4) The Commission may make an interim compliance order pending a proper consideration of a matter if the Commission is of the opinion that there is an imminent danger of substantial damage to a person if a threatened or like ly offence is com mitted or there are other good reasons for making such order. 33 (5) Without limiting the generali ty of subsection (3) of this section, where the Commission is satisfied that person in this subsection referred to as the "acquirer" has acquired shares or other assets in breach ofsubsection ( 1) of section 49, the Commission may make an order at any time within three years after the acquisition: (a) requiring the acquirer to dispose of some or all of the shares or assets within such time as the Commission specifies in the order, or (b) declaring the acquisition lo be void, requiring the acquirer to transfer some or all of the shares or assets back to the person from whom the acquirer acquired the shares or assets in this subsection referred to as the "vendor" and requiring the vendor to refund to the acquirer some or all of the amounts received by the vendor in respect of the acquisition. as the Conunission specifies in the order. (6) Without limiting the generality of the provisions of subsection (3) of this section, where the Commission is satisfied that a person has committed an offence against this Act other than under Part Four and Five, the Commission may order that person to publish, in such manner and within such time as the Commission deems fit, such information as it considers appropriate relating to the offence. (7) A compliance order shall be made in 'vvriting specifying the grounds for making the order. (8) The Commission may enter into an agreement in writing, referred to in this section as a "compliance of agreement", whereby a person undertakes to the Commission to refrai.n from conducts in contravention of this Act from a date, and for a period of time, specified in the compliance agreement or fo r the disposal of shares or assets and other matters referred to in subsection (3) of this section on such terms and conditions as the Commission deems appropriate. (9) A Compliance order shall be enforceable as an order of the High Court. ( I copy of compliance order complianct: agreement 0 ) A a o r on s h al l b e p l a c e d the Public Register and , in the case of a compliance order, a copy shall be served on the person againsl whom it is made. ( 11 ) Notwithstanding any law to the contrary, a copy of compliance order or compliance agreement duly certified by the Commission shall be conclusive evidence in any court of the making of the order and the grounds for making it or the making of the compliance agreement. 34 (12) The Commission shall not have jurisdiction to make compliance orders or enter into compliance agreements in relation lo breaches of conditions or warranties implied under Part Four and Five or manufacturer 's obligations under Part Seven. Incons istency 70.-( 1) Subject to this section, this Act applies to all persons in all sectors of the with other economy and shall not be read down, excluded or modified: Laws. (a) by any other Act except to the extent that the Act is passed after the commencement of this Act and expressly excludes or modifies this Act; or (b) by any subsidiary legislation whether or not such subsidiary legislation purports to exclude or modify this Act. (2) A person shall not be deemed to contravene this Act by reason only of engaging in a conduct, unless a provision of enforcement specified in subsection (3) of this section: (a) requires the person to engage in the conduct or conduct of that kind; or (b) authorizes or approves the person engaging or refraining from engaging in conduct of that kind. (3) The enactments referred to under subsection (2) of thjs section are the Act of ZURA, ZMA, ZFDA, the Zanzibar Trading Act, ZBS and Sectors Legislations, enactments for the protection of the Environment and the subsidiary legislations or instrument under any of the aforementioned Acts. (4) Where the Commission is of the opinion that, any conduct required, authorised or approved by a regulatory authority under an enactment referred to in subsection (3) of this section would be in breach of this Act if subsection (l) of this section does not apply to the conduct the Commission, shall report the matter to the Minister. (5) Where the Minister receives a report from the Commission under subsection (4) of this section, he may direct the relevant regulatory authority to take the necessary steps to ensure that the conduct described by the Commission is not required, authorised or approved by the regulatory authority. Appeal. 71. A person aggrieved by the decision made by Commission under this Act and decision by other Regulatory Authorities may appeal to the Tribunal. 35 General 72.-(1) A person who contravenes the provisions of this Act or fails to comply with Offence and order to the Comm.ission, or the Mini ster, or the Tribunal commits an offence under this Penalty. Act, and where no specific penalty is provided, shall be liable to a fine of not less than one million Tanzania shillings and not more than five million Tanzania shillings or one year imprisonment or both fine and imprisonment. (2) Where the Commission is satisfied that a monetary value can reasonably be placed on the damage including loss of income suffered by a person as a result of an o1Ience against this Act, the convicted person shall, in addition to any other penalty which may be imposed, be liable to a fine of two times such monetary value, which the DiJector General shall order to be paid to the person suffering the damage. (3) A person who contravenes section 43, 45 and 61 are not liable to fines under this section but may be subject to compliance orders and compensatory orders to person who suffers loss or damage. Compounding 73. The Commi ssion may compound an offence committed by a persons under this ofan offences. Act or its regulations by requiring him to pay the fine prescribed for such an offence, provided that the persons: (a) admits in writing that he has committed an offence and shall take due care not to repeat the same; and (b) pay other sums payable under thi s Act or its regulations. Regulations. 74. The Minister shall make the fo llowing regulations for better implementation of this Act: (a) consumer protection; (b) fair competition; (c) prescribed forms to be used under this Act; (d) procedures relating to Consumer Association; (e) procedures for seizing and disposing of goods; (f) procedures for preparation of price structure; (g) procedures for product recall; (h) procedures for inspection; 36 (i) procedures relating to counterfeiting; and U) any other matters that are necessary fo r giving effect to this Act. Repeal and 75.-( 1) The Zanzibar Fair Trading and Consumer Protection /\ct No. 2 of 1995 is Savings. hereby repealed. (2) Notwithstanding the repealed Law made under subsection ( 1) of this section, all regulations, or rul es made and any things done under the repealed Laws prior to the commencement of this Act shall be deemed to have been made under the provisions of this Act until such time the subsidiary legislation in question is revoked and replaced. PASSED by the House of Representatives of Zanzibar on 7 111 February.2018. (RAYA ISSAMS ELLEM) Clerk oftlte House of Represe11tatives of Zanzibar. 37

Fair Competition and Consumer Protection Act, No. 5 of 2018

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