The gatekeepers’ feast: How Africa’s hybrid regulatory farce feasts on its own digital future

By Jerameel Kevins Owuor Odhiambo

In 2025, Google still commanded more than 90 percent of search traffic across much of Africa, while in Kenya Safaricom controlled 62.7 percent of mobile broadband subscriptions and remained the indispensable partner for digital lenders and payment rails. These are not market shares; they are choke points. The factual reality is brutal: a handful of foreign and quasi-foreign platforms sit astride the arteries of African commerce, data, and attention, extracting value with the quiet efficiency of a tollbooth on a highway built by someone else. The issue is no longer whether regulation is needed. The issue is that Africa’s emerging hybrid of ex-ante prescriptions and ex-post inquiries drawn from the AfCFTA Competition Protocol, the 2025 COMESA Competition and Consumer Protection Regulations, and national market studies has so far produced more paper than power, more aspiration than enforcement, and more deference than disruption.

History does not whisper here; it shouts. Colonial companies once controlled the ports, the rails, and the telegraph. Independence replaced those monopolies with state ones, then liberalisation replaced the state ones with private oligopolies dressed in the language of innovation. Today the digital gatekeeper is the latest iteration: a platform that decides who may reach the customer, whose data may be harvested, and which rival may be starved. The AfCFTA Competition Protocol, with its DMA-inspired list of prohibited practices self-preferencing, anti-steering clauses, data leveraging against business users, parity clauses, and discriminatory treatment of SMEs looks on paper like a continental declaration of independence.

Even so, the Protocol still awaits the regulations that would designate the gatekeepers themselves. COMESA’s 2025 rules go further, introducing digital-transaction value thresholds and explicit gatekeeper obligations, and have even opened a probe into Meta’s exclusion of rival AI services from WhatsApp’s business interface. Kenya’s Competition Authority has conducted inquiries into digital credit, USSD access, and online food delivery, and Parliament is considering a Competition Amendment Bill that would recognise “strategic market position” even below the traditional 40 percent threshold and prohibit abuse of superior bargaining power. On the surface, a hybrid architecture is forming: ex-ante lists of forbidden conduct married to ex-post investigative tools and market inquiries.

Look closer and the hybrid begins to resemble a carefully curated illusion. Ex-post enforcement has always been the tortoise in digital markets. By the time a case is investigated, the network effects have hardened, the data moat has deepened, and the rival has either exited or been acquired. Kenya’s own experience with mobile money partnerships illustrates the pattern: the Competition Authority’s 2021 Digital Credit Market Inquiry documented concentration among lenders tied to the dominant mobile network operator, yet the structural advantage remains largely intact years later. Market inquiries are valuable diagnostic instruments, but diagnosis without surgery is theatre. The COMESA Meta investigation is welcome; it is also a single probe against a company whose continental footprint is measured in hundreds of millions of users. Meanwhile the AfCFTA’s gatekeeper provisions float in legislative limbo, waiting for political will that has so far preferred harmonisation rhetoric to confrontation.

The irony is almost literary. Africa champions continental free trade while its digital markets are anything but free. The Protocol on Digital Trade speaks of mobility for African digital services; the Competition Protocol seeks to restrain the very platforms that make that mobility contingent on their sufferance. The correlation is not accidental. Where regulatory capacity is thin, platform power expands. Where data localisation rules are weak or unenforced, value leaves the continent. Where national authorities lack the technical staff or the political cover to designate a global firm as a gatekeeper, the firm continues to set the terms. Kenya’s proposed amendments are among the more ambitious national efforts, yet they still operate inside a fragmented landscape in which a platform can forum-shop across COMESA, the East African Community, and domestic regimes, or simply outlast the political cycle of any single regulator.

Consider the human texture beneath the statistics. In Kenya, internet penetration hovers around 40 percent of the population, with tens of millions still offline; those who are online conduct commerce, receive credit scores, and form political opinion inside ecosystems controlled by a few firms. Rural orders may now constitute a large share of certain marketplaces, yet the platform’s commission, ranking algorithm, and data advantage remain opaque. The small Kenyan retailer who builds a following on a dominant social platform only to discover that the platform now sells competing goods using the retailer’s own customer insights is living the precise harm the Protocol’s prohibitions were meant to prevent. The fintech entrepreneur who cannot access a critical messaging API because the gatekeeper prefers its own AI offering is living the exclusion that COMESA is only now investigating. These are not abstract competition concerns; they are daily acts of economic dispossession.

The hybrid approach is defended as pragmatic: pure ex-ante risk is over-regulation that might deter investment; pure ex-post is too slow. Nevertheless, pragmatism that refuses to designate, to fine at scale, or to impose structural remedies is not pragmatism it is surrender dressed in technocratic language. The European Union’s Digital Markets Act is imperfect, but it designates, it lists obligations, and it contemplates enforcement. Africa’s version still largely contemplates. The result is a regulatory landscape in which Big Tech can claim compliance with vague principles while continuing the very practices the principles were written to stop.

This cannot continue. The African Union must accelerate the adoption and operationalisation of the designation regulations under the Competition Protocol so that gatekeepers are named, not merely described. COMESA and other regional bodies must treat digital dominance as a standing enforcement priority, not an occasional inquiry. National authorities, starting with Kenya’s Competition Authority and Communications Authority, must be resourced and politically insulated to move from market studies to binding remedies, including data access obligations, interoperability mandates, and, where necessary, structural separation of core platform services from adjacent markets. Civil society and African businesses must stop treating regulatory capture as inevitable and begin treating it as a policy failure that can be reversed. Governments must recognise that digital sovereignty is not achieved by hosting data centres alone; it is achieved by ensuring that the rules of the digital marketplace are written in African capitals rather than Silicon Valley boardrooms.

The alternative is a continent that builds digital infrastructure only to watch the surplus flow outward, a generation of innovators who learn that the platform is both the market and the gatekeeper, and a history that will record this era as the moment Africa traded one form of economic dependence for another, this time wearing the smiling mask of “innovation” and “inclusion.” The words of the Protocol and the Regulations already exist. What is missing is the courage to make them bite. Until that courage appears, the gatekeepers will continue their feast, and Africa will continue to set the table.

The writer is a legal writer and commentator.

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