According to the renowned Namibian academic, Joseph Diescho, in a recent public commentary, he defined a state-owned enterprise (SOE) as a state-owned company, state-owned entity, state enterprise, publicly owned corporation, government business enterprise, government-owned corporation, commercial government agency, public sector undertaking, or parastatal whose form is a legal entity that undertakes commercial, productive, regulatory and service oriented activities on behalf of the government who acts as shareholder, stockholder, regulator and operator to the SOEs.
Some SOEs are service rendering such as the University of Namibia and standard setting such as the Namibia Standards Institute, while others are productive enterprises such as TransNamib, NamWater, NamPort and NamPower.
SOEs in Namibia can perform in their nature and design the role of commercial and service undertakings in Namibia. Such are the natural monopolies which are infrastructure driven in areas of railways, roads, airports, finance, power, energy, industry, and telecommunications while some offer strategic goods and services in areas of post office and defence. SOEs can be fully or partially owned by government.
SOEs started to perform its role way before independence in 1990 and on 25 October 2001, the Cabinet of the Republic of Namibia adopted a Report on a Governance Policy Framework for State Owned Enterprises in Namibia and on the 21st March 2015 His Excellency, Dr Hage G. Geingob, the President of the Republic of Namibia, created a process of a firmly established institutional foundation of an ongoing consideration of attending to the reform of SOEs under the Ministry for Public Enterprises.
The Namibian Competition Commission is part of the regulatory SOEs which perform a mandate on behalf of Government to supervise and act as a supreme regulator on regulating competition between businesses in the Namibian marketplace.
The Competition Act, No 2 of 2003 (“the Act”) does make provision for SOEs to be subjected to its provisions, as the Act binds the State in so far as the State engages in trade or business for the production, supply or distribution of goods or the provision of any service, but the State is not subject to any provision relating to criminal liability. The Competition Act further applies to the activities of statutory bodies, except in so far as those activities are authorised by any law.
Hence the above provisions indicate that the SOEs are subject to the Competition Law in Namibia when it is engaged in productive enterprising and commercial service involvement of the economy. There is however worldwide concerns whether the involvement of the State through SOEs crowd out private businesses in the private sector within a marketplace. This is more so since the Act applies to SOEs as it engages in economic or commercially service-oriented activities.
The Commission has recognized that the Act applies to SOEs and has started to interrogate the essentiality of amending the law to further strengthen the powering legislation of attending to the conduct and behaviour of SOEs, so that there is a level playing field of both the public and private sectors through competitive neutrality.
The revised Competition Act aims to further propose to give wider powers and aims to strengthen certain economic regulatory powers and concurrent powers with sector regulators to enforce the Competition Act 2003 in relation to the private and public sectors in Namibia.
For example, the current Competition Act in its present form does not apply to the agricultural sector of the Namibian economy in respect of agricultural commodities, which have not undergone the process of manufacture. According to Section 1 of the Act, which deals with definition of “goods”, it does not include agricultural commodities that have not undergone a process of manufacture.
The Commission considers it timely to amend the Act, which will give the Commission more power to enforce and regulate all important sectors such as the agricultural sector.
The Commission is aware of the current impact on the way the agriculture sector is organized which could have implications on consumers, hence its decision to broaden its scope and ensure its full applicability into all sectors of the Namibian economy.
The current Act is however specific that all SOEs and statutory bodies are subject to the mandate of the Commission, particularly if there are no enabling or empowering provisions in the laws of the SOEs.
SOEs are subject to the Competition Act that defines the mandate of the Commission, except in so far as SOEs are allowed currently by their own laws (emphasis laws promulgated by parliament not regulation, directives, notices, determinations, or gazettes) on competition issues in terms of their structural and behavioural conduct in the marketplace.
This means that all SOEs or any statutory bodies definitively fall within the ambit of the competition law and is fully subject to the Commission’s mandate on competition regulation in Namibia.
• Mihe Gaomab II is the Chief Executive Officer of the Namibian Competition Commission.