An AI-generated picture depicting the landmark ruling for illustrative purposes only

LILONGWE, Malawi — The High Court on Friday ruled that multinational construction giant Mota-Engil is a “relevant private body” under Malawi’s Access to Information Act and must comply with the law’s transparency requirements, dismissing every ground of the company’s three-year legal challenge in a precedent-setting judgment that strengthens the public’s right to demand information from private companies doing government work, writes Winston Mwale.

Justice Howard Pemba delivered the ruling in open court at the Lilongwe High Court Registry, finding that the Human Rights Commission acted lawfully, rationally and in good faith when it moved to assess Mota-Engil’s compliance with the 2017 Access to Information Act — a decision the Portuguese construction firm had fought since February 2023.

The judgment carries sweeping implications for government contractors, journalists, civil society organizations and ordinary citizens seeking accountability from private entities that receive public funds or perform public functions in Malawi.

Three-year battle

The case originated in January 2023 when the Human Rights Commission — tasked under Section 7 of the Access to Information Act with overseeing its implementation — notified Mota-Engil of its intention to assess the company’s compliance with the law on the basis that it qualified as a “relevant private body.”

Mota-Engil rejected the classification, arguing that the Act did not apply to a private company and that the commission’s decision was illegal, irrational, unreasonable and made in bad faith.

When the two sides failed to reach common ground, Mota-Engil filed for judicial review on Feb. 28, 2023, and obtained an injunction blocking the commission from proceeding with its assessment.

The company sought declarations that it was not a relevant private body, that the commission’s decision was void, that the Act only applies to government contractors to the extent of specific contracts and that wholesale compliance assessments constitute a breach of the constitutional right to privacy.

The hearing took place on Feb. 18, 2025, with judgment delivered March 6, 2026.

What makes a private body ‘relevant’

At the heart of the case was a question of statutory interpretation: When does a private company become subject to Malawi’s access to information regime?

Justice Pemba conducted a detailed analysis of the Act’s definitions, finding that a private body becomes a “relevant private body” — and therefore an “information holder” subject to the law — under two circumstances: when it is wholly or partially owned, controlled or financed by public funds, or when it carries out a statutory or public function or service.

“The infusion of public resources or oversight transforms a private body’s status to a relevant private body, making it accountable in relation to those funds,” Pemba wrote. “The second scenario is when a private body performs a statutory or public function, such as delivering a service mandated by law or delegated by government.”

The judge noted that Mota-Engil’s own sworn statement described the company as “a renowned construction industry player” involved “with multiple projects both with the Malawi Government and the Private sector” — an admission that, in the court’s view, placed the company squarely within the Act’s definition.

“It is of no practical significance whether the Claimant’s primary business is government contracting,” Pemba wrote.

“There is nothing in the Act about information holder’s primary business. As long as the Claimant is involved with Government construction projects, whether this is its primary business or not, they are a relevant private body.”

Privacy argument rejected

Mota-Engil’s argument that the compliance assessment would breach its constitutional right to privacy under Section 21 of the Constitution received particularly sharp treatment from the bench.

Justice Pemba found the argument “unattractive” and “unpersuasive,” drawing a critical distinction between the commission’s regulatory compliance assessment and actual requests for disclosure of company records.

“The Commission’s objective is limited to assessing whether the Claimant has in place the institutional mechanisms and procedures required by the Act to facilitate lawful and systematic access to information, should such access be requested in future,” Pemba wrote.

He added that even if the commission had sought actual records, the privacy argument would have failed because the Acce...

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