A society can tolerate the failure of most companies. It cannot function without some systems.
That distinction has acquired new urgency. Modern economies depend on payment networks, cloud infrastructure, digital platforms and communications systems that are privately owned but underpin public life. Institutions are therefore forced to answer a question they were never designed for: what happens when systems that shape everyday public life remain private?
Every era produces organisations that become woven into its economic order. Medieval trading leagues once controlled the commercial arteries of Europe. Chartered companies later moved goods, capital and imperial influence across continents.
One of them, the East India Company, exercised military, fiscal and administrative authority across vast territories before many of those functions were absorbed by the British state.
Industrial economies later produced railroad networks, banking houses and telephone systems powerful enough to shape entire markets.
Concentrated power is not new. The systems through which it now travels are. When Amazon Web Services, the world’s largest cloud-computing platform, suffered a major outage in October 2025, the disruption rippled through more than 1,000 companies.
Banks, airlines, payment systems and major digital platforms including Reddit and Snapchat experienced service interruptions. The infrastructure sat in northern Virginia. The consequences did not. The outage ended within hours. The dependency remained.
The modern economy runs through infrastructure that few citizens see and even fewer governments fully control. A retailer in Nairobi depends on digital payments to settle transactions quickly.
A hotel’s visibility can rise or collapse because an algorithm changed somewhere beyond its reach. A bank may look local while depending on cloud infrastructure sitting outside the country where its customers live. A public agency may deploy digital systems more complex than the legal and institutional frameworks designed to oversee them.
The economy still looks national from the outside. Underneath, payments, communications, logistics and data move through privately governed digital infrastructure. Markets are rarely neutral. They are shaped by law, code, ownership and the institutions controlling access to them
In Kenya, market shifts stopped being theoretical long ago. When mobile money first emerged in 2007, the story seemed straightforward: technology solving a practical problem in a heavily cash-based economy. Transactions became faster. Distance mattered less. Informality became more legible. Entire categories of commerce expanded.
But something deeper was happening at the same time. Private telecommunications system was quietly becoming part of the country’s economic operating system.
Salary payments, transport, utility bills, school fees and small-business commerce moved onto privately operated rails until they became embedded in ordinary life. Millions adopted the transition through convenience rather than ideology. The infrastructure became normal long before its institutional consequences were understood.
That experience now extends well beyond payments. Cloud systems underpin communications, financial infrastructure and data storage. Digital platforms shape how businesses acquire customers, how information circulates and how markets coordinate themselves.
Modern power operates through dependency as much as ownership. A system becomes influential not only because it is profitable, but because public institutions, businesses and ordinary citizens gradually lose the practical ability to function outside it.
That shift is unsettling some of the assumptions on which competition law was built. Industrial-era regulation focused on physical dominance: pipelines, factories, rail corridors and distribution networks. Modern economic power increasingly operates through platforms, ecosystems, payment rails, cloud infrastructure and network effects.
Several global technology firms now shape policy environments less through territory than through dependence. Countries negotiate not only with other states, but with corporations operating systems their citizens cannot easily function without.
Infrastructure, once tied primarily to territory, now sits inside global systems shaped as much by geopolitics as commerce.
Power now travels through these systems as much as territory.
Law has met versions of this problem before. In Munn v Illinois (1877), the United States Supreme Court held that once private property became ‘affected with a public interest,’ it ceased to be purely private and could be regulated in the public’s name.
Grain elevators remained privately owned, yet commerce depended on them. The law therefore treated them differently from ordinary businesses. The more a society depends on a private system, the less purely private that system remains.
Decades later, in Marsh v Alabama (1946), the same court held that a company-owned town could not escape constitutional scrutiny once it served, in practice, as a public space.
Those cases belonged to industrial America.
Today’s infrastructure operates across borders and legal systems in ways nineteenth-century courts could not have imagined. Yet the underlying tension feels familiar: infrastructure remaining privately owned while becoming socially indispensable.
Africa is often described as technologically behind; it may instead be an early laboratory. Parts of the continent encountered these questions earlier because mobile-money leapfrogging compressed several stages of institutional change into a single generation.
The constitutional implications are becoming harder to ignore. American law has long struggled with what lawyers call the state-action problem: constitutional duties generally bind governments, not private actors.
Kenya’s 2010 Constitution takes a broader view. Article 20(1) provides that the Bill of Rights binds not only state organs but all persons. South Africa’s 1996 constitutional framework, under Section 8(2), similarly allows constitutional obligations to operate horizontally between private parties.
African constitutional systems may hold tools for confronting forms of private infrastructural power that older legal traditions are still learning to govern.
Kenya’s courts have begun to encounter the edges of this transition. In the Huduma Namba litigation in 2020, the High Court conditioned implementation of the Huduma Card, the final stage of Kenya’s digital identity system, on a data-protection impact assessment. The point was not hostility to innovation. Societies become dependent on systems long before law settles around them.
No modern economy can function outside these systems. The infrastructure arrived first. Governance is still catching up.