Thank you for downloading this transcript to Nota Bene Podcast Ep. 136: Africa Q3 Check In: Diligent Competition Investigations and the Digitization of the Economy with Andreas Stargard.
Listen to the original podcast released July 28, 2021 here: www.notabenepodcast.global
Despite long-standing challenges to economic growth, the nations of Africa continue to experience incremental progress. With a new Acting Director and Chief Executive Officer at Common Market for Eastern and Southern Africa (COMESA) Competition Commission and the digital revolution making its way across the continent, we’re exploring Africa’s economic and social outlook in Q3 of 2021 with our Africa competition and markets expert, Andreas Stargard.
Guest:
A co-founding senior member of Primerio, a business advisory firm helping companies do business within Africa from a global perspective, Andreas Stargard is legal, strategic, and business advisor to companies and individuals across the globe. He focuses on antitrust and competition advice, white-collar counseling, contract dispute and negotiation, and resolution of global business disputes, including cartel work, corruption allegations and internal investigations, intellectual property, and distribution matters. Andreas also advises clients on corporate compliance programs that conform to local as well as global government standards, and has handled key strategic merger-notification questions, including evaluation of filing requirements, avoidance strategies, cross-jurisdictional cooperation, and the like.
Transcript:
Michael P.A. Cohen:
Welcome to Sheppard Mullin's Nota Bene, a weekly podcast for the C-suite, where we tackle the current national and international legal headlines affecting multinationals, doing business without borders. I'm your host, Michael P.A. Cohen. Let's get started.
Michael P.A. Cohen:
Welcome to episode 136 of the Nota Bene Podcast, and thanks so much to all of our listeners in more than 100 nations around the planet. We so appreciate your continued participation in our ongoing conversations and your feedback. Please keep it coming. It continues to help influence our programming including now.
Michael P.A. Cohen:
We are continuing this week with our quarterly check-ins with the world's large geopolitical economic regions today with Africa, and our regular guest, Andreas Stargard joining us from Primerio. Primerio is a pan-African competition law firm with private lawyers, former regulators and economists, providing multi-disciplinary services to businesses doing business on the African continent. Andreas helped co-found Primerio in 2014 and is currently a senior member of the organization. He is a native of Germany and he speaks fluent German, French and English. Andreas received his education in the United States first at The College of William & Mary, and then obtaining his Juris Doctorate degree from the University of Virginia. So he enjoyed a Commonwealth of Virginia education, Virginia, along with many other states being a hotbed of education in America.
Michael P.A. Cohen:
Prior to co-founding Primerio, Andreas has worked among the top private international competition practices worldwide and continuing to do that now with the Primerio organization. His experience is rich and deep. We will link both his bio and Primerio's website in the show notes.
Michael P.A. Cohen:
Andreas, welcome back to the podcast. It's so wonderful to have you back in our quarterly review to talk about Africa.
Andreas Stargard:
Thanks for having me, Michael. Again, I have to say, at each of our check-ins, it's again, a timely one.
Michael P.A. Cohen:
Well, good. We look forward to hearing about that. The quarter rotation, for some reason, just seems to rhythmically capture important windows, if you will, looking back and forward, which is why we do these things quarterly. But I sent some particular timing behind your comments. So tell us, what do we need to know about the legal and regulatory developments in the African markets over the past quarter, our current moment, present moment, if you will, and looking ahead a bit in Q3?
Andreas Stargard:
Well, as you and I just discussed before you hit the record button, we were talking about tides and the regularity thereof, and how earth is burning a little bit. Currently, South Africa is truly burning. If your listeners have followed the news recently in July, the former president, President Zuma, has been arrested. He presented himself to a local police station after an arrest warrant was issued because he had failed to comply with the edicts of the corruption investigation into the so-called state capture, what the south Africans call state capture, meaning the large scale corruption between the Gupta family and their corporate entities worldwide and in South Africa and the Zuma administration government before President Ramaphosa took over.
Andreas Stargard:
And President Zuma had not been cooperating. He had walked out of the last hearing of the so-called Zondo Commission, in fact, which was investigating his alleged corruption and crimes, and he was never to be seen again after he walked out in the middle of the hearing during a break. And so therefore the constitutional court of South Africa had issued, after several warnings and chances, it had given him to reappear and reengage, it had issued an arrest warrant. And he has now been arrested and he's in jail. He's an elderly man. And his supporters from the ANC, the African National Congress, have literally turned South African society and businesses upside down.
Andreas Stargard:
We have just given advice to one of our longstanding domestic South African clients, not on antitrust, not on corruption, not on business formation and our usual bread and butter, but it was an ad hoc piece of advice that we had to obtain and then provide, regarding whether or not there would be vicarious liability if the armed guards that they had to hire to protect their warehouses and manufacturing facilities were to shoot and kill protesters, whether the company could be held liable. So that is what we are dealing with right now in terms of providing legal advice in South Africa. It is truly a disaster for a lot, of course, of the four people there. They are hardest hit again because the looting and destruction really hits their community is the hardest.
Andreas Stargard:
So, not to start off with too depressing a subject, but it was timely in that sense that it is really a big key economy in my view and our view still in South Africa is being currently decimated because of these acts of violence.
Michael P.A. Cohen:
I'm glad you started off with it though. If I just push the pause button for a second, Andreas, because you and I, I think, started our quarterlies with Africa this year. I think you were gracious enough to start coming on the podcast this year, and we marked in our first episode, if I recall, some of the African markets and the coalitions that were occurring. And we shared at least some exchanges on whether or not there can ever really be real investment in Africa because of its volatility, right? I mean, there seemed to be all these starts that you see, if you will, but at the end of the day, corruption, you can kind of get through. Corruption is a way of doing business in much of the world and much of the world you can do business in corrupt places. It can be hard to do business in corrupt places, but business can get done.
Michael P.A. Cohen:
But when things are unstable, right? When there's volatility, it deters investment, it causes people to think twice about where they put their money. In Africa, here we have the South African economy, traditionally regarded, as you said, is really one of the cornerstones of economic activity in the African continent. And it goes to hell in a hand basket overnight because of the arrest of a guy who was violating the law. It's just kind of hard to get your arms around that.
Michael P.A. Cohen:
And I guess my question for you is, are we going to continue to see Africa hold itself back? It's an amazing place with amazing potential, but it just can't seem to get beyond itself in these ways. And what are your thoughts on this? I mean, every time I think there's learning it seems like it just goes away.
Andreas Stargard:
Yeah, it's a touchy subject and one where any opinion could probably be right or wrong because Africa is so multifaceted if you look at all the different nation states. But as you said, I think the South African example comes as such a shock because it was and is, up until this moment, the one economy that has had the largest influx of foreign direct investment and had the closest ties to Western and Eastern, for that matter, investors and manufacturing entities. Audi vehicles are made outside of Johannesburg. Lots of things that we use and wear and rely on in our daily lives in Europe and the US is actually made in South Africa, not just bespoke Pinotage wines and Biltong cured meat that are specialties and delicious, but actually things such as German car manufacturers make their vehicles there. So, will that go away? That is the million dollar question. And I don't know the answer.
Andreas Stargard:
The one thing that I can say for sure, and which is probably hard to dispute, is it all depends on how this is being handled, this scenario that I just laid out by President Ramaphosa, who has unfortunately been somewhat, based on the input I'm getting on the ground and also just press statements in general and the general sentiment in Johannesburg and Pretoria and everywhere else, he has been essentially pretty absent and the ANC's, what they call the security... Essentially their security apparatus, sort of an intelligence unit, they've been really taken by surprise by this. So that does not bode well of course. So we'll see. If their response becomes better organized and has a quick impact to resolve this issue, hopefully we will not see a massive outflow of investment, but that is anybody's guess at this point.
Michael P.A. Cohen:
Yeah, there's certainly not going to be any inflow during this period, right? So what does it mean for businesses on the ground there? Basically, hold tight, batten down the hatches, let it pass and then see where things are? I mean, what's your kind of thought on that, Andreas?
Andreas Stargard:
That is currently the attitude I think that most businesses are taking. They are, of course, coming up with contingency plans, including moving stock, human capital, and potentially entire facilities out, which is the most difficult element out of the country, and either North of the border into neighboring countries or just out of the continent entirely. But depending on what your business does, that is of course very difficult to do. Especially if it involves immovable real estate or things like mining. That's why South Africa has such a special place because of a lot of the resources on the ground. You can't just take that out of course.
Andreas Stargard:
But another problem that arises is of course price gouging. And from the antitrust competition law perspective, it's an interesting feature, because as you know, as we've discussed in prior Nota Bene episodes on Africa, most African competition laws have a public interest factor built in unlike most Western competition antitrust laws. And so price gouging during crises actually falls under the competition statute and not some other related or unrelated consumer protection edict. And so I am certain that the SACC, the competition commission, is currently very, very busy with allegations and complaints about price gouging, because we have seen evidence of that happening.
Andreas Stargard:
So that's what some unscrupulous businesses are doing. They're taking advantage of the high demand and low supply and basic antitrust economics terms of product because much has been destroyed. You literally see videos right now, you can publicly find them on the internet, of milk tankers being stopped on the highways and being forced to just let out all their contents into the field, just to essentially artificially reduce supply. It's a well-designed plan to get former President Zuma out of jail. It's basic pressure, essentially.
Michael P.A. Cohen:
Yeah. So that's the end goal. So the end goal is, destroy your country so you can get this guy out. I do wonder how long that kind of thing will last. Perhaps forever in my generation. But if you hearkened back to an early 20th century, late 19th century, there was certainly a developed world view that resources like those in South Africa, Venezuela, Brazil, shouldn't be in the hands of local governments because they don't have the ability and capacity to appropriately govern them, if you will.
Michael P.A. Cohen:
And I'm talking about a rationale that was used for colonialism at the time, but I could see a 21st century rationale that why should Brazil continue to be in charge of the rainforest if it's going to destroy it? Why do you get to govern something that's important for the world's oxygen if you haven't demonstrated the capacity to do that? And developed nations could in fact prevent that governance, particularly if they were unified in some way. I could see that in Venezuela with respect to rare earths, I could see that in South Africa for its natural resources. At some point in time, as those kinds of natural resources become more fundamental to basic needs in developed worlds like energy and basic infrastructure, it doesn't seem to me that the developed world is going to be contingent on local governance. At some point in time that just runs its course. That's pretty radical. What are your thoughts on that?
Andreas Stargard:
It is, of course, the danger of going down that path of the colonialist mindset, but I think your point is well taken though regarding what will happen to the natural resources in Africa. And when you go to a place like Namibia, where a lot of rare earths and other valuable minerals are also still underground, you see that even in a country with almost 0.00, I could add multiple zeros behind that period, behind that digit, people per square kilometer, it is so desolate and empty. But there is such a nonetheless efficient and effective mining sector that is in place. Back in the day, it was a German colony, so they speak Germany. It's shocking when you go to a place like that and people start speaking fluent German with a Northern German accent, and you think you're back in Germany. It is somewhat shocking. But perhaps it has something to do with what you were saying earlier with the sort of a system that was put in place about a century ago.
Michael P.A. Cohen:
Yeah. It's interesting.
Andreas Stargard:
Same in Nigeria, right? I mean, we're talking massive oil production there that is all essentially in the hands of the Western and/or Chinese oil SUNUK and TOTAL ELF and all these entities are pretty much in charge. Not necessarily perhaps from... To close that chapter, not necessarily perhaps from a moral superiority perspective or from a wisdom superiority perspective, but simply from a technological know-how and equipment perspective, right? There's just that element that is required, especially for mining, that is simply otherwise not available unless you go to the European or Chinese or American oil services companies.
Michael P.A. Cohen:
We're not in a world where things happen far away anymore, right? That means that this event in South Africa will impact the world.
Andreas Stargard:
Absolutely. And as you know, I'm on a group chat with COMESA, Common Market for Eastern and Southern Africa business journalists and COMESA officials, and when there's talk about Uganda having committed such and such act towards its neighboring countries and issuing a discriminatory tariff system in violation of the COMESA treaty or other random violations, I used to be able to speak up and comment on it, hopefully intelligently. I have honestly, self-censored myself since the various pitfalls that the Trump administration has gotten itself into. Because when I did speak up, everyone on the COMESA Africa side has been able to point to an exact replica of that conduct that was going on there that they were being reprimanded for, that has been undertaken by the Trump administration.
Andreas Stargard:
So I have learned to essentially zip my mouth and zip my keyboard and not comment, because as you said, we are not in the position of strength. That said, I mean, the Biden administration is making some attempt at mending relations internationally, as we know, and with respect to Africa specifically, to get back to the sort of overall picture there. Secretary Blinken recently appointed Mr. Godec, he's a career diplomat... I think the title is Under Secretary or Acting Assistant Secretary for Africa. So there's one member of the state department now who's in charge essentially and he's Mr. Godec. And he undertook a virtual visits to Kenya and another African nation, I forget which one it was, in the last month and essentially expressed the desire to reestablish and firm up US and various African nations relationships.
Andreas Stargard:
And in an interview that that was conducted afterwards, I think it was a virtual interview over Zoom, he responded to a query, on a topic that you and I had discussed previously as well, which is China. Is the US doing this because of essentially competition with China for Africa as both military and economically strategic continent? And he denied that and said, "No, we would have done this anyway."
Andreas Stargard:
We recognize that the Chinese are there and that they've built a strong base, and that The People's Republic of China has pulled hundreds of millions of its people out of poverty and into a middle-class. And that right there is a feat that a lot of African leaders admire and they see it, right? And it's not necessarily a feat that the US or Europe can claim title to because they haven't had hundreds of millions of four people raise up and get middle-class status like China has, so that is one of the reasons why so many African nations have turned to China, other than, of course, the friendly, supposedly at least at first glance, friendly and beneficial terms of various infrastructure and other deals that China is offering, and simply the interest that China has shown and the early fast mover advantage when compared to sleepy European and North American nations that have simply slept on Africa for too long.
Michael P.A. Cohen:
That was well put, it's fascinating. I think almost anything that any US administration will try to do from here forward is just always going to be bet with reservation. I mean, presidencies are four years. Almost all conduct in America is now governed by executive order. You're literally dealing now with the governments because Congress can't pass anything, right? I mean, Congress can't even pass an infrastructure bill in a nation that used to be the model. And now it looks like the 1960s compared to rivals in China. I mean Tokyo looks like the 1980s compared to China.
Michael P.A. Cohen:
Somebody used that analogy on one of my shows and I thought it was adapt. I still think Tokyo looks a little bit more than the 1980s, but now when you can just come to the basic infrastructure and the ability to move around and power, those enterprises, America is lagging so far behind the rest of the developed world right now. And Asia, I mean, it's not even comparable. And the American Congress can't even pass an infrastructure bill because they're too busy fighting over which one of them is the best and what they think is the best nation in the world, and then that best nation in the world, it just continues to slip another wrong.
Michael P.A. Cohen:
I think everybody's going to politely nod and smile to Americans wherever they try to assert themselves and then shake hands with the Chinese. And that's what's happening around the world. And it's happening in Africa. Let's talk a little bit more about that. Talk a little bit more about that in Africa, if you could.
Andreas Stargard:
I think the risk of that happening is certainly there and it has happened. Let's hope that the United States can catch that curve. But as you said, I'm not an expert in American politics by far, but if it is indeed a four year by four year kind of come and go in spurts situation, how can any reliable long-term policy be founded, or relationships such as a trade treaty? Right? I mean, how about a trade treaty where you have to rely on that lasting more than a few years? It is simply untenable where the imposition that we saw during the Trump era of absolutely random tariffs on Italian Focaccia or cheese, and Chinese chips, is just thrown around willy nilly.
Andreas Stargard:
Similarly, if we get back to the antitrust sphere, to the competition law sphere, that latest Biden package for the Biden administration's update to the antitrust laws, the legislative proposal, it is when we compare that to African competition law schemes. And I touched on it a little bit earlier where I mentioned the concept of public interest and protecting other elements besides what we in the Western antitrust world think of as pure antitrust, right? It's antitrust plus.
Andreas Stargard:
The new Biden package certainly seems to emulate, interestingly, these African more novel approaches to antitrust and incorporates protectionism. If we call a spade a spade, right? It incorporates provisions that essentially protect American or North American businesses, US businesses, against competition from, largely, China. So, is the US now following in the footsteps of a country like South Africa in that regard? Interesting discussion topic. We could have a whole segment solely about that, but that's what I'm seeing. And when I compare US with various African jurisdictions, that's what comes to my mind.
Michael P.A. Cohen:
I might like to hear what else we ought to know?
Andreas Stargard:
One of our recurring discussion points that you and I have touched on has been the AFCFTA, the Free Trade Agreement and zone that will cover pretty much all of Africa if and when the full extent of its mandate is realized, which is certainly not in the near future but will take a little while. Its Secretary General recently predicted that there would eventually be a single African currency along the lines of the Euro. That, of course, is... I don't want to call it a pipe dream, but when you see how long the Euro was in the making, it didn't just start in the 80s or the 90s, it came into being in 1999. It was talked about in 1929 by a German politician named Schleisman. He was worried about the rise and the creation of new nation states in central Europe at the time and that there would be too much essentially economic loss based on all these different currencies.
Andreas Stargard:
And of course currency conversion is a real net loss to economic activity when you think about it. It's essentially absolutely zero-sum game. But when you think about a single African currency being achieved in anything less than what it has taken Europe, which was at least 70 years, you are certainly an optimist in my book. I don't see that happening anytime soon. So I do disagree with the Secretary General of the AFCFTA there.
Andreas Stargard:
In other news, my home country of Germany has officially apologized to the government of Namibia and the people of Namibia, and has, for the first time in its history, the Federal Republic of Germany has called what its predecessor, now has done in now Namibia, called it a genocide. So that's on the somewhat happy historical news front. That is I think, a step in the right direction to acknowledge past transgressions and past actions by Western governments on the continent.
Andreas Stargard:
And another recurring theme that you and I have talked about just because it is important, is of course the digitization of the economy, how Africa has sort of leapfrogs many other countries and continents really in the world because of its interestingly broad adoption of mobile telephony, because of the lack of landline infrastructure, right? We talked about this in a previous episode. The lack of historical infrastructure in terms of communications has precipitated the adoption of mobile telephony, even if it's just a basic SMS based text message, Nokia handset, doesn't have to be the latest and greatest smartphone. So because there's such widespread adoption, we've seen a massively high adoption of E-currency and essentially electronic mobile money transfers, party to party, business to business, et cetera.
Andreas Stargard:
And the government of Ghana has now announced that they are going to launch the e-Cedi. The Cedi, C-E-D-I, is the currency there, and the e-Cedi will be the electronic version of that currency. Not quite clear what that exactly means. It's certainly not anything like Bitcoin or other cryptocurrency, you don't have to mine it, but it will be... I think what it is, and it's a little bit unclear to me, but I think what it is the government essentially owning and declaring that it owns the monopoly on mobile money transfers, and that anyone who wants to participate, such as mobile telephony operators, banks, et cetera, have to accede to the terms and perhaps even pay a licensing fee or some sort of transaction fee, who knows? To the central bank or to the government. So I think that's of interest.
Andreas Stargard:
On the other side of the continent in Ethiopia, the Ethiopian government has recently announced that it was retreating from a similar proposal where it had required any new entrant in the mobile telephony market. It had required them to use the incumbent government telephony operators, antennas, and other infrastructure for an indefinite period, and it did not automatically allow operators to create or use mobile money transfers and offer that to their customers. They have retreated from that and now allow new entrance to both use their own facilities, own equipment, own towers, as well as enter into mobile money transfer transactions. So I think that is, from a competition perspective, probably a better way to handle things, but it certainly shows that, again, mobile money is a very, very important area on the continent. We've handled several cases relating to it and it's only going to take a more prominent role as our future episodes continue. I promise there'll be more discussions about that.
Michael P.A. Cohen:
I love the topic and I love that it's occurring in Africa in this sort of wild west frontier where there is a massive need and demand. So it's not purely academic. And the reason I love it is because it's a constant laboratory, right? You yourself, I think, framed that so well, Andreas, just now between the Ethiopian model and the retractions and some of the other models of assertion.
Michael P.A. Cohen:
I think that, I don't know, my own personal feeling is that laboratories have the kind of the best potential for efficient economic and policy success. It's hard to sit at the top of a pyramid and know what's right for everybody, right? I mean, and that's what always, I think, troubled China, frankly, about its own communist model. And it may be why China allowed all of the economic free trade zones it did so that it could have its own laboratories and then step in when it wanted to, which it now seems to be doing, right? Because a lot of those laboratories have produced some very wealthy individuals and very huge tech companies and China seems to be stepping right in and taking control over them.
Michael P.A. Cohen:
But the African laboratory in digital currency and e-currencies and digitization through its demand and necessity, I think stands to really be accelerated and continue to be accelerated. And what you're describing certainly is consistent with the theme we started back in January, I believe, and we're seeing evolve. So I hope we do keep a close eye on this particular area and see what develops, because what develops is probably going to be a wonderful model that works. And we're going to see some failures and we're going to see some things that get around those failures and ultimately some successes. And there's just a lot more experimentation going on the African continent right now than there is in any other part of the world. I think in America, it's either a regulated or unregulated issue, but it's not really a state experimental issue where the American continent has benefited from state experimentation and state laboratory so often. There's really no potential for that here. It's going to really take place in a regulatory or a regulated industry I think from here forward.
Michael P.A. Cohen:
And I'm not saying that's not happening in Africa, just that there's a lot of different forms of that regulatory hand, and that, I just think is fascinating. So let's please do keep a great eye on that. I'm so glad you flagged it. Andreas, thank you so much as always for your generous time and all of your insights. It's so wonderful to be putting Africa into the quarterly reviews. And I'm so grateful again for your continued participation in our show. We'll also link the African antitrust blog in the show notes for listeners as well.
Andreas Stargard:
Thank you for having me, Michael, as always look forward to the next one in the Fall.
Michael P.A. Cohen:
Yeah, see you in October. That's it for this week folks. Next week we'll continue our quarterly check-ins with our last regularly scheduled quarterly check-in and regular guest, Paul Kim in Korea, looking in on the Asia markets north to south, which collectively constitute the overwhelming majority of human trade and commerce on earth. So you may want to stay tuned for that episode. And as always, thanks so much for listening.
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