Examining the efficacy of Kenya’s corporate leniency programme in the context of competition law

Abstract

The Corporate Leniency Programme is a fairly new concept in Kenya. It was introduced in 2017 under section 89A of the Competition Act of Kenya. Cartel activities are becoming very dominant and the Competition Authority of Kenya needed to come up with other methods of curtailing cartel activities. In the leniency programme, once an entity comes to the Authority on a first-come-first-serve basis to confess its involvement in cartel activities, it is either pardoned partially or in full. This allows the Authority to conduct its investigations and punish the other entities involved. The corporate leniency programme concept was borrowed from other jurisdictions such as the UK, USA and South Africa. They have always had this system of granting leniency to entities that are the first to approach and confess their in cartel activities. The study seeks to look at whether the implementation of the leniency programme has been effective since its introduction in 2017. The study also examines the challenges that Kenya faces and might face in the implementation of the programme. From my research (although the programme is still fairly new in Kenya) it is still not yet effective given that amongst other challenges, not many people are aware of its existence yet or the steps to take to apply for leniency. Due to this, implementation of the programme will be a challenge. In Kenya so far there are no reported cases regarding entities that have approached the Competition Authority and have been granted leniency. Kenya should first introduce an awareness programme that would enable all entities and authorities to be on the same page. It will enable everyone to be aware of the programme and put it to good use. This is because the knowledge of the existence of the programme may help reduce cartel activities as entities may suspect that other entities will approach the Competition Authority and come clean on their cartel activities.