Increased Focus on Compliance and Regulation (Competition, data protection, environmental, employment and labour relations)
Due to the dynamic nature of the legal landscape, we anticipate various regulatory changes and shifts in legislation and compliance for various corporate structures for effective delivery of services. Owing to the changes highlighted below, we foresee and anticipate an increased focus on the fulfillment of compliance requirements in various sectors and increased regulation in different sectors of business. This overview highlights three key areas that will significantly impact businesses: climate change, public-private partnerships, and competition.
a. The Climate Change (Amendment) Act, 2023
The Climate Change (Amendment) Act, 2023 (“the Act”) came into force on 1st September 2023 amending certain provisions of the Climate Change Act, 2016. The Act has introduced guidelines and policy directions on carbon market trading to enhance greenhouse gas emissions reductions and removals.
With the enactment of the Act, companies will now be required to register their carbon trading projects under the National Carbon Registry and to undertake Environmental and Social Impact Assessment (EIA) tests before undertaking any carbon trading projects in accordance with the Environmental Management and Coordination Act. Additionally, companies will be required to provide reports on the anticipated environmental, economic, and social benefits of the project.
b. The Public Private Partnership Regulations, 2023
The Public Private Partnerships Regulations, 2023 (“the Regulations”) were approved by the Cabinet as they await to be tabled before the National Assembly for approval. The Regulations are aimed at providing clear guidelines for planning, procurement, management, and monitoring of public-private partnership (PPP) projects and incorporating environmental and climate change principles.
Additionally, the Regulations are expected to fortify the existing legal and institutional framework for PPPs by giving effect to the Public Private Partnerships Act, 2021 and to certain provisions of the Act such as the procedure for approval of project agreements by the County Governments.
We expect to see a more streamlined sector with a harmonious system of laws as the Regulations aim to provide a more concise procedure in line with the PPP Act, 2021 as opposed to the confusion that prevailed in the PPP sector while the PPP Regulations 2013 were in force.
c. The Competition Space
For the year 2024, we expect to see the Competition Authority crank up compliance in the competition space. During the month of January 2024, the Authority has made five determinations on various cases regarding compliance with the Competition laws and regulations. As recent as 22nd January 2024, the Authority made a determination on the proposed acquisitions of One Hundred Percent Shareholding in Rafiki Millers Ltd by Kitui Flour Mills Limited and other cases such as the proposed acquisition of 100% of the issued Share Capital of Nova Academies Tatu City Property Limited by Heri Holdings Limited.
Additionally, with the Privatization Act coming into full effect this year, we expect to see the Authority’s in full force as they try and limit the growth of monopolies with the privatization of State Corporations.