Abstract

African competition law was largely designed to address anticompetitive practices among formal firms. Yet, informality is one of the defining features of African economies: informal firms employ over 70% of Africa’s workforce and contribute significantly to the GDP of many countries. These firms are not insulated from anticompetitive practices, whether as victims or perpetrators. If competition law fails to account for their competitive effects, its ability to regulate African markets and promote inclusive development remains severely limited. This presentation will interrogate whether African competition law “sees” informal firms by examining exclusionary abuse of dominance interventions in South Africa and Mauritius––two of the most active competition regimes on the continent, with different institutional arrangements for competition enforcement. It identifies five mechanisms through which informal competition is rendered invisible: market definitions exclude informal actors; reliance on econometric evidence disadvantages firms lacking formal data; protected firms are associated with incumbency and formality; remedies focus on punishing past harm rather than fostering competitive environments; and complainants are disproportionately formal firms, reinforcing systemic bias. Building on these findings, the Effective Competitive Constraints (ECC) standard is proposed. The ECC standard, protects firms based on their ability to constrain dominant firms, regardless of their formality. Accordingly, the standard results in an epistemological shift, one that favours surveys and internal documents over econometric evidence. It also prioritises remedies that seek to enhance the competitive process by strengthening competitive constraints, rather than merely sanctioning past conduct. By incorporating informal firms into competition enforcement, the ECC standard offers a pathway toward inclusive market governance, equitable economic development, and a reimagined competition law that aligns with Africa’s economic structure.