This chapter examines the Competition Authority of Kenya’s activities to promote competition. This includes the authority’s participation in regulatory and legislative activities, the outreach events and training run by the authority, and the publications and guidance produced by the authority.
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6. Advocacy
Copy link to 6. AdvocacyAbstract
6.1. Law and practice
Copy link to 6.1. Law and practiceThe Competition Act grants a range of advocacy competences to the CAK, including issuing advocacy opinions, proposing the revocation or amendment of acts that have led or may lead to distorting or preventing competition and organising actions to raise awareness on competition law.
The CAK’s market study competence is discussed separately as Chapter 7 of this Peer Review.
6.1.1. Participation in legislative and regulatory policymaking, including competition assessment
Under the Competition Act, the CAK has a broad set of powers relating to advocacy in relation to legislation and policy. These include powers to:
“Study government policies, procedures and programmes, legislation and proposals for legislation so as to assess their effects on competition and consumer welfare and publicise the results of such studies”.1
“Investigate impediments to competition… and publicise the results of such investigations”.2
“Investigate policies, procedures and programmes of regulatory authorities so as to assess their effects on competition and consumer welfare and publicise the results of such studies”.3
“Participate in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies”.4
“Make representations to government, government commissions, regulatory authorities and other bodies on matters relating to competition and consumer welfare”.5
“Advise the government on matters relating to competition and consumer welfare”.6
These interventions can be undertaken at the request of the government, Parliament, a regulatory agency, or on the CAK’s own initiative.
The CAK reports that it monitors media and the Kenyan Parliament’s legislation tracking tool to identify issues that may warrant an advocacy intervention by the CAK. As mentioned in Chapter 3, the CAK relies on its priorities (set in line with the broad Kenyan Government national priorities) to focus its advocacy efforts. Currently, this includes legislation and policy in the areas of food security and nutrition, healthcare, the digital economy, housing and support for SMEs.
Table 6.1 below notes the number and focus areas of the CAK’s formal advocacy opinions in the last five years.
Table 6.1. CAK’s advocacy opinions
Copy link to Table 6.1. CAK’s advocacy opinions|
Year |
Number of formal advocacy opinions |
Sectors |
|---|---|---|
|
2020 |
26 |
Retail, manufacturing, Banking, Telecommunications, Health, Financial |
|
2021 |
30 |
Retail, Banking, Insurance, Manufacturing, Telecommunications, Legal services, |
|
2022 |
33 |
Retail, Banking, Insurance, Manufacturing, Telecommunications, Legal Services, Accounting/Financial Services |
|
2023 |
26 |
Retail, Banking, Insurance, Manufacturing, Telecommunications, Legal services |
|
2024 |
27 |
Retail, Banking, Manufacturing, Insurance, Telecommunications, Legal services |
Note: List of sectors defined by the CAK.
Source: CAK questionnaire.
The CAK estimates that 90% of their opinions relate to assessing the competitive impact of laws and policies, with 10% covering issues related to competitive neutrality.
In the context of public procurement, the CAK reported that it provided an opinion on designing the tender template during the reform of Kenya’s public procurement law. The CAK also provided advice on the competitive merits of leasing vehicles for government use compared to out-right purchasing, an approach which has now been adopted in the country.
Advocacy opinions of the CAK are not published. The CAK reports that it follows up on its advocacy opinion to gauge whether their opinion has been adopted.
6.1.2. Campaigns, events and training
The Competition Act gives the CAK the mandate to promote, train and liaise with other public bodies.7
There are several key campaigns, events and trainings in the CAK calendar. For over a decade, the largest event is an annual capacity building workshop for public and private sector stakeholders. This event is paired with the CAK annual Symposium on Competition Law and Policy. Previous sessions of the workshops and symposia have covered topics including:
The procedural framework for competition law enforcement
Assessment of vertical agreements
Complementarity or conflict: interaction between competition and industrial policies
Other activities for public bodies have included trainings for the regional County Governments, with a particular focus of promoting pro-competitive County policies and regulations.
The CAK has also provided trainings for industry associations such as the Kenya Association of Manufacturers, Retail Traders Association of Kenya and Kenya Private Sector Alliance. Under the Competition Act, the CAK is also required to promote the creation of and build relationships with duly registered consumer rights organisations.8
Within the CAK, building public awareness of the competition law and the competition authority is viewed as a key focus for the CAK. In addition to its website,9 the CAK operates on a number of digital platforms to spread its message:
A Facebook page with ~8 300 followers10
An X (formerly Twitter) account with ~7 700 followers11
A LinkedIn page with ~5 000 followers12
A YouTube channel13
A biannual email newsletter14
Given their limited resources, the CAK sees digital channels as their key method for outreach and public awareness. The CAK hopes to expand its offering to include a podcast, and a more frequent newsletter for interested stakeholders of the CAK’s activities each week.
The public facing events the CAK organises include activities for World Competition Day and World Consumer Rights Day.
The CAK estimates that roughly 30% of their public advocacy relates to competition, with the remaining 70% focussed on consumer protection.
Table 6.2 below tallies the total number of competition advocacy events ran by the CAK in the last five years.
Table 6.2. Advocacy events organised by the CAK
Copy link to Table 6.2. Advocacy events organised by the CAK|
Year |
Total number of advocacy events organised |
|---|---|
|
2020 |
21 |
|
2021 |
21 |
|
2022 |
25 |
|
2023 |
26 |
|
2024 |
28 |
Source: CAK questionnaire.
6.1.3. Publications and guidance issued by the CAK
Competition authorities use guidelines as a soft law tool to clarify and increase transparency on their activities and procedures. The CAK is able to make information and guidelines available relating to the application and enforcement of the Competition Act.15 The CAK has adopted guidelines on:
Restrictive Trade Practices under the Competition Act
Informant Reward Scheme Policy
Leniency Programme
Search and Seizure
Market Definition
Mergers
Joint Ventures
Assessment of Regulatory Impact on Competition (for Policy Makers)
Competition Compliance for Trade Associations (as part of a 2016 special compliance programme looking into conduct among trade associations)
Other publications from the CAK include its annual report and its five‑year strategic plan, as mentioned in Chapters 2 and 3. The CAK has also developed a Law Digest, which highlights summaries of major CAK decisions issued between the CAK’s establishment in 2011 through to June 2022.16
6.2. Analysis
Copy link to 6.2. AnalysisThe OECD Recommendation on Competition Assessment [OECD/LEGAL/0455] encourages countries to identify existing or proposed public policies that unduly restrict competition and consider adopting more pro-competitive alternatives. The Recommendation calls on jurisdictions to integrate competition assessment in the policymaking process in the most efficient and effective manner consistent with institutional and resource constraints.
Internally, the CAK explained that they believe increased co‑operation with other government bodies and more requests for advisory opinions is a strong indicator that the CAK has improved awareness of the authority and the importance of competition in the economy. Domestic co‑operation is discussed in detail in Chapter 10.
External stakeholders were broadly complementary of the CAK’s efforts to make advocacy and awareness a cornerstone of their work. Many noted that they had participated in CAK advocacy activities and observed that the CAK in comparison to its peer competition authorities had done a good job at raising awareness.
When engaging in legislative and regulatory policymaking, the CAK could also assess whether the government intervention in question, for instance through regulation or state support, does not tilt the level playing field in favour of certain market participants (e.g. SOEs or incumbents), in line with the OECD Recommendation on Competitive Neutrality [OECD/LEGAL/0462]. The OECD Competitive Neutrality Toolkit, developed to support the implementation of competitive neutrality principles, could be particularly useful in this regard (OECD, 2024[1]). The CAK has also participated in a World Bank review of the Kenyan procurement system in 2018/19 and is now part of the World Bank and Kenyan National Treasury programme on Development Policy Objectives.
The CAK’s current practice of not publishing its advocacy opinions may somewhat limit their effectiveness. By making advocacy opinions publicly available, the CAK may enable more stakeholders to understand the impacts a policy or law may have or be having on competition and build more support for any pro-competitive reforms the CAK is advocating for. Of course, advocacy opinions should only be published when appropriate, respecting Kenyan norms on the sensitivity and confidentiality of the policymaking and legislative process.
However, one aspect of advocacy raised by a number of stakeholders echoes the concerns discussed in Chapter 4 this review regarding low levels of enforcement. Stakeholders repeatedly noted that there is need for a culture shift in the CAK. After 14 years of operations, stakeholders observed it was time for the CAK to focus on bringing more enforcement cases, not advocacy work. High profile enforcement cases also create opportunities for high impact advocacy. For example, bid rigging cases can be used to highlight the opportunity cost of public money being misused and not available for schools, hospitals and roads etc.
While research into best practices by bodies such as the OECD and International Competition Network (ICN) have recognised there may be benefits to prioritising advocacy for newly founded competition authorities in low and middle‑income countries, this cannot act as a substitute for enforcement in the longer term. At a certain point, competition advocacy is “usually more convincing when expressed by someone with a stick in his hand” (International Competition Network, 2002[2]), requiring authorities to show that there are consequences for wrongdoing. External stakeholders argued that the CAK working to publicise the major enforcement decisions and imposing sanctions would be the most powerful form of advocacy available to it.
References
[2] International Competition Network (2002), Advocacy and Competition Policy – Report prepared by the ICN Advocacy Working Group, https://www.internationalcompetitionnetwork.org/wp-content/uploads/2018/09/AWG_AdvocacyReport2002.pdf (accessed on 12 November 2025).
[1] OECD (2024), Competitive Neutrality Toolkit: Promoting a Level Playing Field, OECD Publishing, Paris, https://doi.org/10.1787/3247ba44-en.
Notes
Copy link to Notes← 1. Competition Act s 9(1)(h).
← 2. Competition Act s 9(1)(i).
← 3. Competition Act s 9(1)(j).
← 4. Competition Act s 9(1)(k).
← 5. Competition Act s 9(1)(l).
← 6. Competition Act s 9(1)(m).
← 7. Competition Act s 9(1).
← 8. Competition Act s 9(1)(d)-(e).
← 9. See https://cak.go.ke/.
← 15. Competition Act s 9(1).
← 16. CAK (2024), “Competition and Consumer Protection Law Digest”, https://cak.go.ke/sites/default/files/2024-02/CAK_COMPETITION_AND_CONSUMER_PROTECTION_LAW_DIGEST.pdf.