Introduction
Imagine a pan-African telecommunications company with operations in Nigeria, Kenya, Uganda, Rwanda, and the Democratic Republic of the Congo (DRC) seeking to acquire a regional competitor. The deal involves one buyer, one target, and four overlapping operating territories. The transaction triggers mandatory national merger filings in each of the five jurisdictions. It also meets the thresholds of two regional competition regimes, the COMESA Competition and Consumer Commission and, from 1 November 2025, the newly activated East African Community Competition Authority (EACCA). Both bodies claim to be the exclusive one-stop shop for cross-border mergers in their respective regions. Neither legislative framework provides a binding mechanism for resolving that conflict. And on the continental horizon, a third layer, the African Continental Free Trade Agreement (AfCFTA) Competition Protocol, awaits its twenty-second instrument of ratification before entering into force.
The question this article confronts is: which authority governs, in what sequence, and what happens when they disagree?
As will become clear, the answer under the current framework is that no binding mechanism exists to resolve these questions and that this interdeterminacy is itself the central problem.
Africa's merger control architecture was designed in silos. National regimes emerged first, often with no reference to regional frameworks. Regional economic communities (RECs) then established their own competition authorities, each designed as a one-stop shop, with overlapping membership with at least one other. Now, the AfCFTA Competition Protocol promises a third continental layer, whose relationship with existing REC regimes remains to be resolved in implementing regulations that have not yet been finalised.
Merger control, by virtue of its procedural structure and incentives created for cooperation, should be a low-hanging fruit in competition enforcement, meaning it should be the easiest area in which to establish regional authority [1]. The irony is that it is currently the area generating the most acute jurisdictional complexity. This article maps that complexity across all three layers and advances a principles-based framework for its resolution.
Layer One (The National Tier)
Africa has made extraordinary progress in building national competition regimes over the past three decades. Eleanor Fox and Mor Bakhoum, writing in 2019, documented the rapid spread of competition law across the continent as part of a broader wave of market liberalisation and institutional development [2]. Today, over 30 African states have some form of competition legislation in force. The baseline problem, however, is the profound inconsistency between the existing laws.
Substantive tests diverge sharply. Some jurisdictions adopt a substantial lessening of competition test, drawn from the Anglo-American tradition. Others apply a dominance-based test. South Africa has developed arguably the most sophisticated national regime on the continent, one distinguished by an expansive public interest mandate that empowers the competition authorities to impose conditions addressing employment, ownership transformation, and the interests of historically disadvantaged persons. This mandate was on full display in two landmark transactions approved in 2025: the Canal+/MultiChoice merger, cleared by the Competition Tribunal in July 2025 subject to conditions requiring, among other things, the rollout of a Canal+ University Programme that will identify and implement appropriate training programmes for roll out in South Africa; [3] and the Vodacom/Maziv merger, approved by the Competition Appeal Court in November 2025 after the Tribunal had initially prohibited it, on the basis that the merger would advance equitable access to essential services and economic opportunity [4].
Nigeria's Federal Competition and Consumer Protection Commission (FCCPC) has emerged as a significant West African regime with a broad subject-matter jurisdiction, though its merger control practice is still maturing. In contrast, a number of other jurisdictions have competition laws on the statute book but lack operational competition authorities capable of reviewing mergers in practice. Several have neither.
The critical structural point is this: national regimes were not designed with REC interoperability in mind. Notification thresholds are calculated by reference to domestic turnover or assets, with no mechanism for coordinating with a parallel regional threshold analysis. Review periods vary from 30 days in some jurisdictions to over six months in others. There is no pan-African principle equivalent to Article 21(3) of the EU Merger Regulation, which expressly prevents member states from applying national competition law to concentrations with a Community dimension [5]. The result is that merging parties in multi-country African transactions must, in the absence of a functioning one-stop shop, analyse notification obligations independently in each jurisdiction with no mechanism to consolidate or sequence filings.
Returning to our hypothetical transaction, the acquiring party with operations in Nigeria, Kenya, Uganda, Rwanda, and the DRC would need to conduct an independent notification analysis in each of these jurisdictions. Kenya's Competition Act, read together with the First Schedule of the Competition (General) Rules, establishes a regime of mandatory pre-merger notification where prescribed thresholds are met, with a statutory review period of up to 60 days (extendable by a further 60 days in complex cases) [6]. Rwanda's law on competition and consumer protection requires notification of mergers exceeding prescribed thresholds to the Rwanda Inspectorate, Competition and Consumer Protection Authority [7]. In the DRC, the competition framework remains nascent, with enforcement capacity a significant constraint. Part XII of Nigeria's Federal Competition and Consumer Protection Act (FCCPA) confers broad merger review jurisdiction on the FCCPC.
A further dimension of complexity arises from sector-specific regulatory oversight, which the hypothetical's telecommunication context makes acute. In Kenya, the Communications Authority of Kenya exercises approval powers over changes in ownership of licensed telecommunications operators under the Kenya Information and Communications Act 1998. In Nigeria, the Nigerian Communications Commission (NCC) has historically asserted jurisdiction over mergers and acquisitions involving telecommunications licenses, creating the potential for parallel review alongside the FCCPC [8]. It should, however, be mentioned that although the NCC and the FCCPC have concurrent powers, the FCCPC directives take precedence in the event of a conflict [9]. In Uganda, the Uganda Communications Commission and the Ministry of Trade, Industry and Cooperatives (the primary competition regulator) exercise concurrent jurisdiction over mergers in the telecommunications sector.
These sector-specific approval requirements operate independently of, and in addition to, both national competition authority review and regional REC-level merger control. For the hypothetical acquiring party, this means that even where national competition authorities respect regional one-stop shop principles, the transaction may still require separate approvals from national telecommunications regulators in each operating territory, a layer of jurisdictional complexity that the one-stop shop aspiration does not address.
Layer Two (The REC Tier)
COMESA
The COMESA Competition and Consumer Commission (CCCC) has been the dominant force in African regional merger control since the adoption of its Merger Assessment Guidelines in 2014. On 4 December 2025, the COMESA Council of Ministers adopted the COMESA Competition and Consumer Protection Regulations, 2025, which entered into force the following day, replacing the 2004 framework in its entirety and constituting the most significant overhaul of the regime since its inception [10].
The centrepiece of the reform is the introduction of a fully suspensory merger control regime. Under the 2004 Regulations, parties were required to notify within 30 days of the decision to merge, but could complete implementation before receiving clearance, as there was no standstill obligation. Under the 2025 Regulations, closing is prohibited until clearance is granted or a derogation is obtained in compelling exceptional circumstances [11]. Failure to comply may attract fines of up to 10% of the annual turnover of the merging parties within COMESA, which have to be paid within 45 calendar days or incur a further penalty of 2% of the fined amount per day, which signals a significant escalation of enforcement [12].
The notification thresholds have been revised upwards: a merger is notifiable if the combined COMESA-area turnover or assets reach at least USD 60 million (up from USD 50 million), and at least two parties individually each exceed USD 10 million [13]. A new, separate USD 250 million transaction-value threshold has been introduced for digital transactions, reflecting the CCCC's recognition that data-rich deals may not trigger traditional asset or turnover thresholds yet can have substantial competitive effects within COMESA markets [14].
Crucially, the 2025 Regulations reinforce and sharpen the one-stop shop principle. The CCCC is expressly designated as the exclusive forum for cross-border merger review within COMESA, and where any conflict exists between national laws and the 2025 Regulations, the Regulations prevail. The new sanction mechanism is notable: member states that fail to respect the one-stop shop principle and purport to exercise parallel jurisdiction will not be entitled to their share of the merger filing fees remitted to the Commission [15]. The cap on those fees has also been increased to USD 300,000 [16].
It is worth noting that the formal legal position described above does not fully capture current practice. Practitioners advising on transactions in the COMESA/EACCA overlap zone have, in the period since the EACCA became operational, been navigating the overlap through early jurisdictional assessments, pre-notification consultations, and emerging informal allocation criteria, with the informal coordination developing faster than the legislative framework.
The EACCA
On 1 July 2025, the EACCA published a notice that it would commence receiving and reviewing merger notifications from 1 November 2025 [17]. This marked the activation of a regime long anticipated under the East African Community Competition Act 2006 but never previously operationalised for mergers. The EACCA is based in Arusha, Tanzania, and has exclusive jurisdiction over competition and consumer protection matters having a cross-border effect within the EAC's eight Partner States: Burundi, the DRC, Kenya, Rwanda, Somalia, South Sudan, Uganda, and Tanzania.
A merger is notifiable to the EACCA where it involves undertakings with operations in two or more EAC Partner States, the combined EAC-area turnover or assets equal or exceed USD 35 million, and at least two parties individually meet USD 20 million. The EACCA is obliged to decide within 120 days, which it interprets as 120 working days, a materially longer review period than the calendar-day equivalent [18].
The EACCA, like the CCCC, describes itself as a one-stop shop: parties that notify the EACCA of a cross-border EAC merger are not required to also notify national competition authorities of EAC Partner States [19].
The problem here is the overlap between the EACCA's membership and COMESA's. Six of the eight EAC Partner States (Burundi, the DRC, Kenya, Rwanda, Uganda, and Tanzania) are also COMESA members [20]. Tanzania, while not a COMESA member, is an EAC Partner State. For a transaction touching any combination of these six overlap states, both the EACCA and the CCCC may have jurisdiction simultaneously. Both assert exclusivity. Both claim the one-stop shop mantle. Neither the 2025 COMESA Regulations nor the EAC Competition Act confer primacy on one regime over the other, and neither provides a referral mechanism.
A Memorandum of Understanding was signed between the CCCC and the EACCA on 10 June 2025. Its terms are encouraging in principle but wholly insufficient in practice. It establishes a framework for information sharing, technical assistance, capacity building, and coordinating enforcement activities. It contains no provision governing how the two authorities will deal with mergers that are notifiable to both [21]. As ENS Africa reported following a webinar with CCCC CEO Dr Willard Mwemba in February 2026, a working paper on a case-allocation mechanism is on Dr Mwemba's desk, and resolution is described as very near [22]. Until that mechanism is agreed and given binding legal effect, merging parties with operations in overlapping states face, in theory, the prospect of parallel filings with both authorities, each with distinct thresholds, distinct review clocks (120 calendar days for the CCCC versus 120 working days for the EACCA), and distinct substantive tests with no statutory mechanism for consolidation.
ECOWAS and WAEMU
West Africa presents a parallel and, in some respects, more structurally complex layering problem. The ECOWAS Regional Competition Authority became fully operational on 1 October 2024, introducing a mandatory suspensory ex-ante merger control regime for transactions involving parties present in at least two ECOWAS member states and meeting prescribed turnover thresholds [23]. The ERCA, like its counterparts, claims in principle exclusive regional jurisdiction for qualifying cross-border transactions [24].
The difficulty is that eight ECOWAS member states (Benin, Burkina Faso, Côte d'Ivoire, Guinea-Bissau, Mali, Niger, Senegal, and Togo) are simultaneously members of the West African Economic and Monetary Union (WAEMU), which has its own competition authority, the WAEMU Commission, whose merger control regime is voluntary and non-suspensory [25]. The structural difference between the regimes is significant: a transaction submitted for voluntary review to the WAEMU Commission that is also notifiable on a mandatory basis to the ERCA creates a fundamental inconsistency in the parties' obligations. Herbert Smith Freehills Kramer has reported that ECOWAS and WAEMU have entered into a cooperation agreement, still being finalised, based on a single control principle intended to avoid dual review of the same transaction [26]. Whether that agreement, once executed, will be sufficient to resolve the structural inconsistency remains to be seen.
SADC
The Southern African Development Community (SADC) does not currently have an operational regional competition authority relying instead on a cooperation framework among national competition authorities under its 2009 Declaration and 2016 MOU. The contrast with COMESA, the EAC, and ECOWAS is instructive as it demonstrates that the layering problem has not uniformly reached all of Africa's RECs, and that the architecture of regional competition enforcement remains fundamentally asymmetric across the continent. South Africa, the dominant economy in the SADC region, operates exclusively under its national regime for intra-SADC transactions, meaning that the one-stop shop aspiration, even where it exists on paper, has no regional counterpart in this geography.
Layer Three (The Continental Horizon)
The AfCFTA Protocol on Competition Policy was adopted by the African Union Assembly at its 36th Ordinary Session in February 2023 [27]. It will enter into force 30 days after the 22nd instrument of ratification has been deposited with the African Union Commission. As of January 2026, 49 State Parties had deposited instruments of ratification with the AUC, a figure that relates to ratification of the AfCFTA Agreement itself and its Phase I instruments [28]. The Competition Protocol, as a Phase II instrument, requires its own separate ratification process, and the AU Assembly's February 2025 session directed the Council of Ministers to conclude the implementing regulations for the Protocol and submit them for adoption at the next session [29]. The implementing regulations are accordingly not yet in force.
What the Protocol says on mergers is important, but what it does not say may prove more consequential. The Protocol establishes general principles for competition policy across the AfCFTA area, including non-discrimination, transparency, and the protection of consumer welfare, and contemplates the creation of a continental competition authority. It does not, however, presently specify how a future continental authority would interact with the CCCC, the EACCA, the ERCA, or national authorities on merger jurisdiction. The critical question, whether a transaction meeting continental thresholds would be reviewed exclusively at the continental level, or whether REC and national authorities would retain concurrent jurisdiction, is a question for the implementing regulations, not yet answered.
The European Union offers a partial precedent. The EU Merger Regulation establishes a clear one-stop shop principle: concentrations with a Community dimension are reviewed exclusively by the European Commission, and member states are prohibited from applying their national competition laws to such transactions [30]. The Commission can refer a case back to a national authority where the transaction principally affects competition in a distinct national market, and national authorities can request referral of transactions that, while not meeting EU thresholds, affect competition in their territory. This architecture took decades to construct and was built on the foundation of a single regulatory institution with directly applicable law and a well-functioning internal market.
A critical design question that the implementing regulations must resolve is whether a future continental competition authority would exercise original jurisdiction over qualifying mergers, reviewing them as a first-instance decision-maker, or appellate or referral jurisdiction, reviewing decisions already taken by REC-level authorities. The distinction is fundamental. If the continental authority has original jurisdiction, transactions meeting continental thresholds would be reviewed exclusively at the AfCFTA level, and REC authorities would be excluded from the assessment. This model mirrors the EU Merger Regulation's one-stop shop, but requires a level of institutional capacity, analytical resource, and political legitimacy that a newly created continental body may not possess at the outset. If, on the other hand, the continental authority exercises appellate or referral jurisdiction, REC authorities would remain the primary decision-makers, and the continental body would function as a second-tier review mechanism for contested or cross-REC transactions. This model is less disruptive to the existing REC architecture but raises its own difficulties: it would add time and cost to the review process, create a further layer of uncertainty for merging parties, and require the development of procedural rules governing the relationship between the first-instance REC decision and the continental review. Neither model resolves the underlying problem unless the implementing regulations also establish a binding allocation rule determining when a transaction is of 'continental dimension' sufficient to engage the continental authority's jurisdiction [31].
The Practitioners' Problem: Real Costs of Jurisdictional Overlap
The analysis above has a direct application in commercial reality. For a deal team advising on a pan-African transaction today, the CCCC/EACCA overlap alone creates the following practical exposures.
- Filing costs and fees. The CCCC's new fee cap of USD 300,000 applies under the 2025 Regulations [32]. The EACCA's fees range from USD 45,000 for transactions between USD 35 million and USD 50 million, to USD 100,000 for transactions exceeding USD 100 million [33]. In the absence of a binding case-allocation mechanism, both sets of fees may be payable on the same transaction.
- Extended deal timelines. The CCCC review period under the 2025 Regulations is 120 calendar days from the date of receipt of a complete notification, with the possibility of a potential extension (including through a stop-the-clock mechanism for outstanding information requests) [34]. The EACCA review period is 120 working days, materially longer on any realistic calendar, and potentially over six months [35]. Parallel reviews running concurrently on different clocks create long-stop date management challenges that materially affect deal certainty.
- Inconsistency risk. The two authorities apply different substantive tests, have different staffing levels and analytical capacities, and may reach different conclusions on the same transaction. Where they disagree, for example, where the CCCC approves with conditions and the EACCA objects, or vice versa, there is no appellate mechanism, no hierarchy of authority, and no precedent for resolution. The risk of inconsistency becomes most acute where the two authorities not only reach different conclusions but impose different remedies on the same transaction. Consider a scenario in which the CCCC clears the hypothetical telecommunications merger subject to a structural remedy, divestiture of spectrum assets in Kenya, while the EACCA, reviewing the same transaction, imposes a behavioural remedy requiring the merged entity to maintain open access to network infrastructure for a defined period. The two remedies may be individually coherent but collectively contradictory: the divestiture may deprive the merged entity of the assets necessary to comply with the access obligation. In the absence of any hierarchy of authority between the two regimes, any appellate mechanism capable of resolving such a conflict, or any precedent for resolution, the merging parties would face a legally irreconcilable position. In other multi-jurisdictional merger control regimes, notably the early years of the EU/member state interface, conflicts of this nature arose and were resolved only through the progressive development of referral mechanisms and the establishment of clear legislative primacy [36]. Africa's regional merger control architecture lacks both.
- Gun-jumping uncertainty. Both regimes prohibit implementation before clearance, but neither addresses which authority's gun-jumping rules govern the pre-clearance period for a transaction notifiable to both. Early integration steps, particularly in fast-moving sectors such as digital and telecommunications, may inadvertently trigger liability under one or both regimes. A further dimension of the practitioners' problem, less comfortable to articulate but essential to an honest assessment of the landscape, is the enforcement gap. The CCCC, with over a decade of operational merger review experience and a newly enhanced sanctions regime under the 2025 Regulations, presents a credible enforcement risk: failure to notify a qualifying transaction exposes the parties to fines of up to 10% of annual COMESA-area turnover [37]. The EACCA, by contrast, commenced receiving merger notifications only on 1 November 2025 and has not yet published any merger decisions. Its investigative and enforcement capacity is, at this stage, necessarily limited. Rational deal teams may accordingly assess the risk of non-notification with the EACCA as lower than the risk of non-notification with the CCCC. The danger of this asymmetry is that it undermines the EACCA's authority precisely at the moment when it most needs to establish credibility, and risks entrenching a de facto hierarchy in which the CCCC is treated as the primary regional authority for the overlap states, not because of any principled allocation rule but because of a disparity in enforcement capacity. A binding case-allocation mechanism would address this problem by removing the incentive for parties to engage in selective notification.
- Chilling effect on investment. The aggregate cost of this uncertainty is not merely administrative. At precisely the moment that the AfCFTA is designed to encourage cross-border investment and economic integration across the continent, the jurisdictional complexity of African merger control creates a disincentive to consolidation that falls disproportionately on parties to genuinely pan-African transactions, the very transactions the AfCFTA is designed to facilitate. As Dr Mwemba himself has observed, the proliferation of authorities without coordination risks fragmentation of enforcement, duplication, and uncertainty for business [38].
Towards a Coordination Framework
The argument advanced here is not that regional competition authorities are undesirable; on the contrary, they represent remarkable regulatory ambition and play a vital role in markets too small individually to generate effective national enforcement. The argument is that ambition without coordination is itself a competitive harm.
Three concrete proposals follow.
Proposal 1: Binding referral protocols between the CCCC and the EACCA.
The June 2025 MOU is non-binding and silent on case allocation. A binding protocol modelled on the framework of bilateral competition cooperation agreements, such as the 1991 EU-US Competition Cooperation Agreement and its 1998 successor, should specify clear allocation principles based on the geographic centre of gravity of the transaction: where the primary competitive effects and majority of affected revenues are located within the COMESA or EAC area, respectively, that authority takes primacy [39]. For transactions where effects are genuinely divided between the two regions, the protocol should designate a lead authority and oblige the other to cooperate and defer, subject to a right to be consulted on conditions. Such a protocol would eliminate dual filings for the majority of EAC/COMESA overlap cases and could be given legal force under both the 2025 COMESA Regulations and the EAC Competition Act through supplementary rules adopted by the respective governing bodies.
Proposal 2: AfCFTA-mandated threshold harmonisation across RECs.
Rather than immediately establishing a new continental merger authority, which raises significant sovereignty concerns and requires institutional infrastructure that does not yet exist, the AfCFTA Competition Protocol's implementing regulations should mandate common minimum threshold standards across RECs. Harmonised thresholds would materially reduce the number of transactions triggering simultaneous filings at multiple REC levels, by ensuring that transactions with a predominantly sub-regional footprint are assessed at the appropriate level rather than triggering both a COMESA and an EAC notification. This proposal operates within the existing REC architecture and is consistent with the Protocol's building-block approach to continental integration.
It should be acknowledged that threshold harmonisation addresses a real but secondary problem. The jurisdictional overlap between COMESA and the EAC is not primarily caused by different thresholds: it is caused by overlapping membership. Even if the CCCC and the EACCA applied identical turnover and asset thresholds, a transaction meeting those thresholds in an overlap state such as Kenya or Uganda would still trigger notification obligations to both authorities. What harmonisation does achieve is a reduction in the number of transactions that trigger simultaneous filings at multiple REC levels, by ensuring that transactions with a predominantly sub-regional footprint, for instance, a merger affecting only Burundi and Rwanda, are captured at the appropriate level rather than triggering both a COMESA and an EAC notification. This is a worthwhile objective, but it is not a substitute for the binding case-allocation mechanism proposed above, which is necessary to resolve the overlap for transactions that are squarely within the dual-jurisdiction zone, regardless of how thresholds are set.
Proposal 3: A Pan-African Merger Notification Portal.
A single electronic portal through which parties file once and the system routes notifications to the relevant authority or authorities, modelled on the International Competition Network's Multi-Jurisdictional Merger Notification Guide and inspired by the ICN's broader work on procedural convergence, would reduce administrative duplication without requiring legislative reform to the primary regimes [40]. The portal would require merging parties to input turnover and asset data by jurisdiction and automatically generate an assessment of applicable thresholds across all relevant REC and national regimes. The AU Commission, working through the AfCFTA Secretariat, is well-positioned to host such a portal as part of the AfCFTA digital infrastructure, and its creation does not require ratification of the Competition Protocol's implementing regulations to proceed.
It should be noted that the portal proposal is, however, subject to an important sequencing dependency. A portal that routes notifications to the relevant authority or authorities presupposes agreement on the routing rules, which is precisely the problem that Proposal 1 is designed to solve. Without binding allocation principles, the portal becomes an administrative convenience that tells parties which authorities have jurisdiction, but cannot resolve the conflict where multiple authorities assert exclusive competence over the same transaction. The portal is accordingly best understood as an implementation tool that becomes fully effective only after Proposals 1 and 2 have been given binding legal effect.
Conclusion
Return to the hypothetical transaction with which this article opened. The acquiring party with operations in Kenya, Uganda, and the DRC faces, under the framework as it stands in March 2026, the following cumulative obligations. First, it must analyse notification requirements independently in each of the four national jurisdictions, each with its own substantive test, review period, and filing fee structure, and, in at least one jurisdiction, an operational competition authority that may lack the capacity to review the filing within the statutory timeframe. Second, it must file with the CCCC, whose 2025 Regulations impose a fully suspensory regime with a fee cap of USD 300,000, a 120-calendar-day review period, and fines of up to 10% of COMESA-area turnover for non-compliance. Third, it must file with the EACCA, whose separate thresholds, separate fee schedule (USD 45,000 to USD 100,000), and 120-working-day review period run concurrently with, but independently of, the CCCC process. Fourth, in the telecommunications sector, it must obtain separate approvals from national communications regulators in each operating territory, whose jurisdictional mandates are unaffected by any regional one-stop shop principle. It faces these obligations in the absence of any statutory mechanism for consolidating the filings, any binding allocation principle between the two regional authorities, any precedent for resolving a conflict between two one-stop shops that are legally incompatible with each other, and any sector-specific coordination framework. When the AfCFTA Competition Protocol's implementing regulations eventually enter into force, they risk adding a further layer unless the regulations proactively address both the relationship between the continental authority and the existing REC architecture and the design choice between original and appellate jurisdiction.
Africa's merger control story is, in the broadest sense, one of remarkable success. More regional competition authorities have been established on this continent than anywhere else in the world, a testament to the political will of African governments to build institutions that serve markets and consumers. But the gap between ambition and coordination is now widening faster than the authorities are closing it. The cost of that gap is borne not by the regulators but by the businesses, investors, and ultimately the consumers whose interests the regimes are designed to protect.
The solution is not to choose between the CCCC and the EACCA, or between regional and continental authority. It is to build urgently, practically, and with binding legal effect, the coordination architecture that Africa's merger control ambition has always required.