African competition authorities are importing the wrong model of competition enforcement—and doing so without the institutional capacity to make even the right model work.
Across the continent, regulators are reaching for Europe’s most ambitious digital frameworks. The Common Market for Eastern and Southern Africa (COMESA) Competition and Consumer Commission (CCC) recently overhauled its regime to introduce gatekeeper regulation modeled on the European Union’s Digital Markets Act (DMA). Nigeria’s Federal Competition and Consumer Protection Commission (FCCPC) fined Meta million for what it framed as a privacy and competition violation grounded in European-style reasoning—albeit flawed. South Africa’s Competition Commission (SACC) has moved from market inquiry to enforcement on digital platforms.
These moves may signal sophistication—and, at first glance, progress. The reality is less encouraging. African institutions are investing heavily in rulemaking while systematically underinvesting in the capacity to administer those rules with competence. The result is not rigorous enforcement, but mimicry. Stripped of the analytical discipline that gives it value, regulation becomes a set of empty forms.
Following Europe Down the Wrong Path
The model being copied is itself contested. When the so-called “Draghi Report” was released in 2024, it gave official imprimatur to a longstanding critique: Europe is in relative decline, and its appetite for overregulation is part of the problem. Eurozone labor productivity has grown just 0.7% annually since 2020—less than half the U.S. rate. A slow digital transition and a fragmented tech sector explain part of the gap. Overregulation does the rest, steering Europe away from high-growth sectors and widening the divide.
The innovation numbers tell a similar story. According to the Stanford AI Index Report, U.S.-based institutions produced 40 large AI foundation models in 2024. China produced 15. The EU produced just three. At the same time, Europe’s tech-startup ecosystem remains volatile. Founders are leaving for more hospitable regulatory environments at rates that concern even European policymakers.
Survey data reinforce the point. A European Investment Bank study found that founders of startups and scale-ups view the European regulatory environment as overly restrictive in key sectors, particularly deep-tech, digital technologies, biotech, and clean tech. Recent frameworks like the Artificial Intelligence Act (AI Act) and the General Data Protection Regulation (GDPR) impose heavy compliance burdens and often misalign with the realities of building breakthrough technologies. Innovation ecosystems depend on speed and flexibility. Europe offers neither.
Yet regulatory ambition travels well. When the European Commission rolls out digital competition rules—or when national authorities open high-profile investigations into Big Tech—other regulators take notice. They often respond in kind. African competition authorities are no exception.
The problem is not regulatory ambition as such. Digital markets warrant oversight, and African authorities are right to focus on them. Nor is the specific choice of rules dispositive. Capable administrators—agencies and courts—can work around imperfect frameworks. They can interpret narrowly, enforce selectively, and build doctrine incrementally. They can course-correct. What they cannot do is manufacture institutional competence from thin air. An understaffed administration armed with a flawless framework will still struggle. The reverse does not hold.
Power Without Capacity Is Just Paper
History bears this out. Daniel Carpenter’s comparative study of American federal agencies during the Progressive Era shows that formal authority, untethered from institutional capacity, produces ineffectiveness. The Interior Department wielded more discretionary power than any agency of its time, yet remained institutionally weak—unable to plan, resist political pressure, or execute the sophisticated mandates Congress assigned it. By contrast, agencies that succeeded built capacity first. As Carpenter shows, that capacity cannot be imported or engineered into existence. It must be built.
The problem, then, is one of sequencing. Authorities are adopting the architecture of advanced regulation without first constructing the institutions needed to make it work. A recent Lagos State High Court decision shows why that matters.
If You Can’t Find the Speaker, Sue the Stage
The facts of Femi Falana v. Meta Platforms., decided by Justice Olalekan Oresanya of the Lagos State High Court, are striking.
In January 2025, an AI-generated deepfake video appeared on Facebook under a page called “AfriCare Health Centre.” It used the image and fabricated voice of Femi Falana—one of Nigeria’s most prominent human-rights lawyers—to claim falsely that he had suffered from prostatitis for 16 years. Falana’s counsel, Olumide Babalola, tried to identify the page operator and came up empty. As he put it: “We searched everywhere, on Facebook, outside Facebook, globally. There was no such entity.” With no identifiable third-party defendant, Falana filed a fundamental-rights application directly against Meta.
The application invoked Section 37 of the 1999 Constitution, which guarantees the privacy of citizens, their homes, correspondence, and communications, as well as Sections 24 of the Nigeria Data Protection Act 2023 (NDPA). The court awarded $25,000 in damages and found that Meta: (i) could not rely on an intermediary defense because it monetizes content; (ii) acted as an agent of the anonymous page operator and was therefore vicariously liable; (iii) owed a duty to ensure the accuracy of third-party content; (iv) qualified as a joint data controller under the NDPA alongside the anonymous operator; and (v) violated Falana’s constitutional right to privacy under Section 37 by placing him in a false light.
Judgment Without Justification
The High Court’s judgment is remarkable not for flawed reasoning, but for the near absence of reasoning at all. In common-law systems, adjudication functions as a kind of “reasonable custom,” emerging from a public exchange of arguments between counsel and the court. As Martin Golding observed, judicial reasoning aims to produce conclusions that independent observers—judges, lawyers, scholars—can find intelligible and defensible.
That justificatory function is largely missing here. The court dispenses with tradition but keeps its hauteur, issuing conclusions from on high without attempting to persuade.
Start with the constitutional privacy claim. The court quoted Section 37 verbatim, noted that health information is private, observed that the deepfake placed Falana in a false light, and declared a constitutional violation actionable per se. According to the court:
It is my well-considered view that a [s]tatement or publication in a video made without the consent of the party concerned, irrespective of whether the statement be true or false, which contains an imputation that the person has a terminal or contagious disease, has the tendency to put that person in a false light and amounts to a violation of the right to privacy of that person and is actionable per se i.e., even without proof of actual damage or injury, and also created a potential case of strict scrutiny on the part of the person who made the statement or publication.
The court reached this conclusion without analyzing Section 37’s scope or the elements of the false-light tort.
Assume arguendo that Section 37 applies horizontally and, read expansively under the Fundamental Rights Enforcement Rules (2009), could encompass multiple torts. False light is not one of them. Section 37 protects against intrusion into a private sphere—the state reading your correspondence, entering your home, surveilling your communications. False light addresses something else entirely: misrepresentation in the public sphere. It sits closer to defamation, guarding against distortion of public image, rather than invasion of private life.
That raises a threshold question: should Nigeria recognize the false-light tort at all? Even in the United States, where the tort originated, several states have rejected it as incompatible with free expression or as a source of excessive liability. English courts have taken a similar view (see John McCamus for a comprehensive analysis)
The High Court, in short, grafted a contested—and in Nigeria largely nonexistent—tort onto a constitutional provision that serves a different function. It elevated false light to constitutional status without grappling with the tension between privacy and freedom of expression.
The agency and vicarious-liability findings fare no better. The court held that Meta, as a platform hosting third-party content, was “presumed to be acting on behalf of an unnamed or undisclosed principal,” such that the agent’s acts bound the principal. But agency requires consent and control—specifically, that the principal authorizes the agent to act on its behalf and subjects the agent to its direction. Neither element appears here.
The platform-user relationship is contractual and arm’s-length. Users receive reach and distribution; platforms receive a broad license over content and data. Neither party owes fiduciary duties, loyalty obligations, or a duty to act in the other’s best interest. Agency doctrine does not fit this arrangement.
When a user posts on Facebook, they do not direct Meta. Meta provides a service under terms that disclaim the very obligations agency would impose. If courts begin reading agency into standard platform agreements, the implications are sweeping: digital-services contracts could become agency relationships, with attendant fiduciary duties, disclosure obligations, conflict-of-interest rules, and indemnity exposure.
The court seems to recognize the analytical strain, yet proceeds anyway. It concludes—without explanation—that Meta is vicariously liable. Accepting Meta’s lack-of-control argument, the court suggests, would be “unjust,” leaving Falana without recourse against an unknown tortfeasor. In the court’s words:
[T]o my mind, this cannot be a just, fair, and reasonable interpretation of the Law as a tool of balancing the competing and often conflicting interests of members of civilized society.
But as U.S. Supreme Court Justice Antonin Scalia observed, fidelity to the law sometimes produces outcomes a judge may find unappealing.
Balancing interests has consequences. Here, the court inverts the basic logic of platform liability, collapsing the distinction between platform and publisher and exposing intermediaries to potentially boundless liability. The implications extend well beyond Meta—to YouTube, X, TikTok, local marketplaces like Jumia or Konga, gig-economy platforms like Bolt, and even software-as-a-service providers whose tools users might misuse.
The investment consequences could be significant. Platforms depend on predictable liability to operate and attract capital. The agency theory advanced here is neither insurable nor readily quantifiable. Any investor conducting due diligence on a Nigerian tech company must now factor in the possibility of open-ended liability for user-generated content—simply because the platform generates revenue.
Ignore those implications, and both the credibility of the Nigerian judiciary and the country’s emerging innovation economy come under strain.
A System Set Up to Struggle
The errors in Falana are not just the product of a bad judge. They reflect a system asked to do more than it is equipped to handle. Worse decisions have emerged from Nigerian High Courts—unsurprising, given that many High Court judgments never make it into law reports and therefore escape scrutiny and criticism.
Delay compounds the problem. Litigation routinely takes years to resolve. In one arbitration matter—where speed should be the point—it took 12 years for the Supreme Court of Nigeria to uphold the award. After spending five to 10 years in the High Courts, many litigants simply give up on appeal.
That Falana concluded within a year likely reflects the use of the Fundamental Rights Enforcement Procedure (FREP) Rules. But speed is the exception, not the norm.
Capacity constraints are severe. Nigerian judges are among the most overburdened in any common-law system. As of 2019, the Supreme Court reportedly had more than 10,000 pending appeals. At the trial level, judges lack the institutional support U.S. courts take for granted—no law clerks conducting independent research, no robust administrative infrastructure. In many courtrooms, judges still record proceedings longhand.
The cognitive load is immense. A generalist judge, operating under those conditions, must navigate technically complex questions at the intersection of constitutional law, data protection, and platform architecture. Even a diligent judge will struggle to produce careful, coherent doctrine.
The structural deficits are well documented: underfunded court libraries, limited access to comparative-law databases, and minimal exposure to specialized expertise. In that environment, doctrinal errors—confusing constitutional privacy with false light, or agency with platform liability—are not aberrations. They are predictable. They will recur. And as regulatory frameworks grow more complex, they will compound.
This is the mimicry problem. Nigeria, like many African jurisdictions, is adopting the analytical vocabulary of the EU’s DMA, the GDPR, and the German Bundeskartellamt’s data-practices jurisprudence. But that vocabulary emerged in institutions with deep, specialized capacity—staff economists, data scientists, expert tribunals, and courts with decades of precedent. Transplant the vocabulary without the underlying capacity, and you get something that looks like sophisticated regulation, but cannot deliver it.
Overreach Beats Underthinking
The mimicry critique does not apply with equal force across the continent. South Africa offers a useful counterexample. The Competition Commission of South Africa (SACC)’s Media and Digital Platforms Market Inquiry, finalized in November 2025, and its Online Intermediation Platforms Guidance Note, gazetted in February 2026, reflect a more credible approach. These are the products of multi-year inquiries staffed by economists, grounded in extensive public participation, and shaped through provisional reports and public responses. The remedies remain tethered to the existing Competition Act framework.
South Africa’s Competition Tribunal (SACT) also brings something many peers lack: institutional memory built over decades of antitrust enforcement, along with a demonstrated capacity for serious economic analysis.
That does not make the South African model immune from criticism. Competition policy there often leans toward overreach. In part, that tendency reflects the text and structure of the Competition Act of 1998, which directs authorities not only to promote and maintain competition, but also to “ensure that small- and medium-sized enterprises have an equitable opportunity to participate in the economy” and to “promote a greater spread of ownership, in particular to increase the ownership stakes of historically disadvantaged persons.” That mandate reflects the country’s apartheid history, and similar commitments appear in Sections 9(2) and 217 of the Constitution of the Republic of South Africa, 1996 (see also).
But overreach is a different problem from the one identified here. An institution that overreaches can be checked—by courts, and sometimes by sustained criticism. An institution that lacks the capacity to reason through the doctrine it applies cannot be corrected so easily.
Mind the Capacity Gap
To be clear, everyone starts somewhere. This is not an argument for indefinite regulatory delay. It is an argument about priorities: capacity before mimicry.
That means investing in the basics. Judicial research clerks for technically demanding cases. Continuing education for judges and agency staff on digital markets and platform economics. Transcription technology to replace longhand note-taking. Legal databases that give courts and regulators access to the comparative jurisprudence they are already trying to apply.
The gap between mandate and capacity remains the central problem. Until it closes, new frameworks will yield enforcement theater, rather than real market governance. Decisions like Falana will continue to pile up, each one chipping away at the credibility that effective enforcement depends on.
As authorities reach for their pens, a threshold question should come first: are we institutionally equipped to do this? The gap between regulatory vocabulary and regulatory competence is not static. It widens with each new framework, each technically demanding case before an underprepared court, each judgment that substitutes decisiveness for analysis. The costs are asymmetric. A poorly reasoned decision is easy to issue and hard to unwind. Its effects—on investment, doctrine, and institutional credibility—linger long after the case is forgotten.
The continent does not need less ambition. It needs institutions that can carry it. Until then, digital competition frameworks will keep promising more than they can deliver.
