Towards a Tipping Point: The Botswana Competition Act and the Nemo Judex Rule

Abstract

While the Botswana Competition Act creates a hierarchical relationship between the Competition Commission and the Competition Authority, it also confers on the Competition Commission judicial powers over competition cases involving the Competition Authority and/or third parties. Although the Competition Authority's decisions have not yet been tested before either the Competition Commission or the High Court, this article argues that the institutional structure underpinning the Competition Authority is not sound, as it opens the Competition Commission to potential attacks of bias and other constitutional challenges. This article therefore makes a case for the creation of two separate bodies: one concerned purely with adjudicating competition cases and the other with administrative oversight of the Competition Authority.