Access to Information Act applies to private companies undertaking Malawi Government contracts—rules the High Court

* Following the case of Portuguese construction company Mota-Engil that challenged MHRC’s decision to assess its compliance with the ATI Act

* The Court found that MHRC’s decision to assess Mota-Engil was neither illegal nor unreasonable in the Wednesbury sense

By Duncan Mlanjira

The High Court ruled on Friday, March 6, 2026 that the Access to Information Act (ATIA) applies to private companies that are undertaking Malawi Government contracts.

The judgement follows the case of Portuguese construction company, Mota-Engil, that sued the Attorney General on behalf of the Malawi Human Rights Commission (MHRC) following the Commission’s decision to assess the company for compliance with the ATIA.

On its official Facebook account, MHRC reports that, through the Attorney General, it strongly opposed the application and that “the issues for determination were whether [Mota-Engil] had sued the correct party; whether [Mota-Engil] qualifies as a relevant private body and an information holder under the Act; and whether [MHRC’s] decision to assess [Mota-Engil] was illegal, irrational, or unreasonable in the Wednesbury sense”.

According to the law, the MHRC has a statutory mandate to oversee the ATIA’s implementation and, among other responsibilities, to monitor institutions required to comply with the Act.

MHRC reports that Mota-Engil challenged a notice the human rights body issued “seeking to assess whether the company had mechanisms in place to comply with ATIA” and that subsequently, Mota-Engil “commenced Judicial Review proceedings in the High Court, arguing that it does not qualify as a relevant private body under the Act”.

“In its determination, the Court found that Mota-Engil is indeed a relevant private body and must, to the extent of the work it performs under government contracts, comply with the Access to Information Act.

“The Court further held that it could not dismiss the judicial review on a technicality relating to the incorrect naming of a party. Finally, the Court found that [MHRC’s]  decision to assess [Mota-Engil] was neither illegal nor unreasonable in the Wednesbury sense.”

In response to MHRC’s report, Norman Wisdom welcomed development, saying: “When private companies that hold government contracts comply with the Access to Information Act, it strengthens transparency and accountability in the management of public resources.”

While David Odali maintained that the ruling strengthens MHRC’s “legal mandate and access to information” under ATIA of 2016 which operationalised in 2020 to guarantee the right to access information held by public and relevant private bodies to promote transparency and accountability.

It facilitates swift, low-cost access to records, overseen by the Human Rights Commission, with specific exemptions for security and privacy.

Key aspects of the Act, which was published in Government Gazette Extraordinary 3C on 16 February 2017, include: 

* Scope: which covers information held by public bodies and private entities performing functions on behalf of the government;

* Purpose: promotes transparency, accountability, and good governance;

* Operationalisation: passed in 2016, assented to in February 2017, and officially became operational on September 30, 2020;

* Key Provisions: includes protection for whistleblowers and mechanisms for, and penalties regarding, the denial of information; and

* Challenges: implementation faces hurdles such as delays in responding to requests, a digital divide, and compliance issues.

The Act, which can be accessed through static_file/Malawi/Downloadable%20files/Access%20to%20Information%20Regulations,%202021.pdf, provides the processes and procedures related to obtaining the information; and provides for matters connected therewith or incidental thereto as enacted by the Parliament of Malawi.