Abuse of Dominance and Competition Concerns in Zambia’s Electrical Sector: A Critical Examination of Zesco’s Market Power

Abstract

The liberalization of electricity markets has become an important factor in the energy sector reform across many countries in Africa and is aimed at fostering competition, improving efficiency, as well as attracting private investment. The Competition and Consumer Protection Act prohibits agreements or conduct that can unduly restrain competition, but the Act exempts the energy sector from antitrust enforcement in Zambia. The enactment of the Electricity Act No. 11 of 2019 and the Energy Regulation Act No. 12 of 2019 was supposed to stop the historical dominance of the state-owned ZESCO Limited and was supposed to do this by putting into place licensing frameworks, open access provisions and regulatory mechanisms. This dissertation critically examined whether these legislative reforms have in any way made an actual competitive electricity sector or whether ZESCO’s concrete position will continues to prevent competition or instead, put a strain on competition. The study also investigated the legal as well as structural factors that support ZESCO’s market dominance in generation, transmission, and supply, while also analyzing the roles of competition law and the exemption that is in the Act in regard to shaping market dynamics. Using a doctrinal and comparative methodology, the research will draw on statutory analysis, case law, and the best regional practices to put to light the relationship between sector-specific regulation and general competition law. The scope of the study is Zambia’s electricity sector after the 2019 reforms, with comparative reference to other jurisdictions in the Southern African region like Kenya. This work contributes to the academic discourse on competition law in regulated utilities by shading light on the relationship of energy regulation and antitrust principles in the context of Zambian competition law.