Merger control trends across Africa and managing regulatory complexities

A consistent message at the recent Africa Competition Law conference was the growing importance of a clear and credible deal rationale, with regulators expecting alignment between competitive benefits, efficiencies, and public interest outcomes. 

Flowing from this, public interest considerations should be considered and integrated from the outset of a transaction, particularly in multi-jurisdictional deals.

As cross-border transactions increase, merger review is becoming more complex and less predictable. Coordinated regulatory engagement and early strategy development are therefore essential in ensuring smoother approval processes.

Strategic narrative and deal rationale matter more than ever

A clear and credible deal rationale is central to how transactions are viewed by regulators and stakeholders alike. Beyond the mechanics of a deal, businesses must situate their rationale within the broader story they have been telling the market, investors, and internal teams, ensuring consistency across all communications.

Regulators increasingly expect more than a list of efficiencies or public interest outcomes; they want a coherent, compelling narrative that can withstand scrutiny. This involves highlighting competitive benefits, consumer advantages, and operational efficiencies, while being ready to substantiate these claims when challenged. A strong deal rationale demonstrates that the anticipated benefits are tangible and accountable, reinforcing trust with both regulators and the market.

Businesses should therefore focus on building a well-tested, credible strategic narrative—one that extends beyond the transaction to reflect the company’s broader purpose and direction.

Public interest consideration from the get-go

Incorporating public interest considerations should be central from the earliest stages of a deal, particularly in large, multi-jurisdictional transactions. 

Three elements are key — planning, stakeholder engagement, and capacity — are critical to success: 

• Planning involves mapping potential public interest issues, including employment, supply chains, sustainability, localisation efforts, and local citizenship empowerment, and anticipating regulatory expectations well in advance.

• Stakeholder engagement must begin early and should extend beyond regulators to strategically include trade unions, sector authorities, and the market itself, as appropriate. Importantly, this engagement is not only about communicating the deal’s benefits, but actively listening to identify concerns that could otherwise derail the transaction or introduce unplanned commitments, delays, and costs.

• Capacity refers not only to internal preparedness but also to external support from experienced legal advisers, economists, and regulatory experts. Careful preparation across these three dimensions ensures that public interest considerations are addressed proactively, enabling smoother regulatory review, preserving planned synergies, and avoiding integration challenges that can arise when commitments are identified only after closing.

Complexity of merger reviews in multi-jurisdictional transactions

Regulators must carefully consider context when reviewing mergers, as the approach differs between purely domestic transactions and cross-border deals affecting regional or global markets. Domestic mergers are typically assessed against national competition and public interest standards, whereas cross-border transactions require coordination across multiple jurisdictions with varying levels of competition law developments.

Some countries have well-established competition legal frameworks, others are only starting out, while some are still designing their regulations. Regional regulators aim to streamline review through a one-stop notification process: transactions meeting national thresholds are reviewed at the national level, while those meeting regional thresholds are handled regionally. This ensures consistent outcomes, reduces duplication, and addresses competition and public interest concerns in each member state. Close cooperation with national authorities is key to building confidence that regional enforcement will account for local impacts while supporting efficient and predictable cross-border merger review.

The increasing prevalence of cross-border transactions in Africa has significantly heightened the complexity of merger reviews. Deals structured abroad often trigger notifications across multiple jurisdictions, raising challenges around information consistency, timing, and divergent substantive assessments.

Complexity is further layered by overlapping obligations across national, regional, and emerging continental frameworks, creating additional coordination challenges. Certain sectors (particularly digital markets, financial services, and infrastructure) introduce non-traditional theories of harm, requiring regulators to analyse technically sophisticated transactions that often surpass their expertise. Addressing these challenges demands innovative approaches, technical expertise, and close collaboration across authorities to ensure consistent, effective, and timely merger assessments.

The added complexity of sector regulation in deals

Deals in regulated sectors bring additional layers of complexity, and there are three key considerations for navigating them effectively:

• Start with a holistic view: Planning must begin at the outset. Anticipating the concerns of all relevant sector regulators avoids conflicts or contradictions down the line. Reactive problem-solving can inadvertently create new challenges and undermine coordination across authorities.

• Understand hard rules versus discretionary rules: Not all regulatory requirements are the same. Some are hard and fast, allowing no exceptions, while others provide discretion if a compelling case is made. Knowing which rules are flexible and which are non-negotiable is essential, as even the strongest evidence cannot override statutory ‘bright lines’.

• Assemble the right expertise: Complex deals demand a team with industry expertise.

Investment vs enforcement tension

Merger review sits at the intersection of safeguarding competitive markets and promoting investment-led economic development, and regulators emphasise that these objectives are not mutually exclusive. In Nigeria, for example, the review process begins with jurisdictional thresholds and focuses on whether a transaction may substantially prevent or lessen competition. When risks are identified, regulators seek proportionate, targeted remedies rather than defaulting to outright prohibition, recognising the importance of capital inflows for the economy.

Predictable, transparent, and effect-based merger review supports both market protection and investor confidence, helping prevent long-term concentration that could entrench market power, limit consumer choice, and stifle innovation. Clear thresholds, defined timelines, and ongoing engagement with parties are central to maintaining this balance, ensuring that investment can thrive while competition and consumer welfare remain protected.

Predictability in merger review

Predictability in merger review is shaped by a combination of clear rules, transparent processes, and consistent case management. First, clear jurisdictional triggers are essential: defining what constitutes a merger (whether through acquisition of control, minority shareholdings, voting rights, or material influence) provides certainty for businesses. Quantitative thresholds, such as turnover or transaction value, should be unambiguous, and one-stop shop arrangements help avoid parallel filings and overlapping jurisdiction.

Second, a clear framework for substantive analysis is critical. Authorities should provide structured guidelines, regularly updated, that outline methodology, case prioritisation, and the distinction between routine matters and complex cases requiring deeper review.

Third, practical procedural clarity matters: filing deadlines should be reasonable, filing fees transparent, and the use of tools such as ‘stop the clock’ used judiciously. Transparency of process (including statements of objections, response rights, and hearing procedures) together with minimal political interference, reinforces confidence in the system. 

Finally, an effective appeal mechanism underpins all of these elements; when businesses can rely on a fair and robust avenue for review, predictability is greatly enhanced.

Xolani Nyali is a partner in the Cape Town office who specialises in domestic and cross-border competition law, and has advised clients in respect of merger control and behavioural matters across jurisdictions including Angola, Botswana, CEMAC, COMESA, Kenya, Mozambique, Namibia, Nigeria, South Africa, Tanzania, WAEMU, and Zambia. Sivuyise Lutshiti is a Senior Associate who specialises in various aspects of competition law including mergers and behavioural matters. Victoria Anthony is an Associate who has been involved in several cross-border transactions.