Art and Court—My Simple Advice on issues surrounding the withdrawal of the Malawi Writers Union Anthology from the Reading Cycle or Curriculum

Introduction

In case this is news to you, an anthology (of short stories) which had been earmarked to be taught as an examinable title for the Malawi main lingua franca, Chichewa, has been withdrawn from the reading cycle on reasons bordering on morality. The book, Kusintha Maganizo ndi Nkhani Zina, by the Malawi Writers Union, MAWU, had been endorsed by the Ministry of Education, Science and Technology, MoEST, through a Zomba-based curriculum centre, the Malawi Institute of Education, MIE. Apparently, MAWU had printed some copies (in South Africa, from what I hear) and had already started distributing the copies. When the book arrived in schools, some consumers questioned the content of one short story therein which depicts the Catholic Church in bad light on rules governing celibacy. The Catholic Church expressed displeasure over this, and others, concerned, demanded some action. Eventually, the top boss in the Ministry of Education bureaucracy, Principal Secretary Justin Saidi, wrote schools (through MoEST regional agencies or Education Divisions), advising that the book has been withdrawn from the Malawi School Certificate of Education reading list of examinable books, and that should be advised in due course on its replacement. Now MAWU have gone to court, asking the court to come to its rescue through judicial review. The writing body is also seeking a MK320 million compensation from MoEST and MIE.

Discussion

Why I find it necessary to say something on this

First of all, the matter has gone to court, and sub judice rule—a rule that limits people from making comments on an issue that is in court to avoid influencing the outcome in a particular direction—requires that we should keep quiet. Have the court begun considering the issue yet? I don’t think so, and perhaps this is the reason a lot of comments on the issue keep appearing in the papers. My approach to the issue will be such as would encourage the people to rethink their positions and settle this matter outside court.

According to Nation on Sunday dated Sunday December 31, 2017, Catholic Bishops in the country have weighed in on the issue. According to ‘Bishops weigh in on MK320m Books Case’, the Catholic Bishops in the country have put together a team of four lawyers to challenge the case. When such things happen in Malawi and people think everything is normal, they have a problem. So, as a Malawian I must give my opinion on how this matter should be resolved—the ‘out of court’ route.

Second, as a Publisher, I have been once before a similar issue before though my approach to the issue had been different. In my case, a book that was on the curriculum (on the same subject and school level) had been withdrawn because it depicted a poem some deemed not morally correct. The Ministry of Education withdrew the work, even without telling me officially. A friend of mine, that one happened to be party to the decision-makers in the decision, phoned me, advising me the reasons for the decision. That one then told me he or she had done it on trust and that I should not act foolishly. The worst part of our case was that the book had just appeared on a lucrative tender, following which, we had printed many books in readiness for delivery, and then this issue came before me. An idea came that I should pursue the matter in court (and we had a very interesting position and case), but first I sought advice from the authority. My publishing house is a ‘private’ entity because it is meant to undertake business on behalf of our institution but we adhere to principles of public sector management in the way we run it in terms of ethics, law, and even our approach to matters. I cannot explain the position of those I had asked for their opinion, but we accepted to understand MoEST; after all the benefits we get from them is just immense. In addition, principles of Arbitration and Mediation under Intellectual Property Law stresses the need to consider the benefits you derive from a relationship before you resort to court.

We have a body for publishers, the Book Publishers Association of Malawi or BPAM, but none of the members came to my aid, and understandably so—my loss was to be some member’s benefit. So, in my case, the issue died just like that, but it was a great lesson learnt—I made a decision to know the basics of law and Intellectual Property. I went back to school.

Second, I have nearly 23 years of experience from publishing, and, though this might sound like vain glory, I think there are comments I can make based on what works on the ground rather merely what law offers in a disagreement in a publishing setting.

Lastly, I am Editor for a publishing house, but before that I was a school teacher of English, Chichewa and History. I also served MoEST through MIE as a Textbook Evaluator for the outgoing curriculum. Perhaps I can say something some cannot.

What others have said on the issue

I was privileged to follow a discussion by some academics on the decision by Ministry of Education, withdrawing the title. I was able to glean three positions or views: those saying withdrawing the book was tantamount to muzzling free speech; those who said free speech must be respected but should have some limit especially when discussing sensitive issues; and those who sympathized with both parties (MAWU and the Church) and so advocated for a middle ground where the issue should be resolved amicably for the benefit of both.

However, in my opinion, the sanest arguments on the issue have come from Vales Machila, former Editor for a now defunct Catholic publishing house in Blantyre.

In an article bearing the title ‘Solution to MAWU’s banned Book’ (see The Daily Times, dated December 28, 2017, p 8), Machila argues from many sides: (1) he says the fact that the same Ministry of Education together with the Malawi Institute of Education had called for submissions of textbooks for evaluation and had eventually endorsed it for the curriculum yet they are turning around, claiming the story is incensing, justifies MAWU’s action or reaction; (2) he wonders whether it makes sense banning stories from our schools (secondary schools at that) simply because they offend a particular Church or faith when we allow the same schools to debate issues of sex in the name of fighting HIV and AIDS; and lastly, (3) whether the people should close their eyes to the huge financial investment MAWU had put in the project. Machila has made an interesting observation that has the final weight on all this: the role politics will play in all this.

In Malawi, the Catholic Church is a huge and respectable institution. It is a powerful voice almost government within government. In the Eastern Region of the country where I come from, for example, one wouldn’t imagine what the poverty levels would have been like had there been no Catholic Church. Many clinics, schools and social facilities in the Region are provided by the Roman Catholic Church. At one time when I taught at a seminary there, people used to joke that Mangochi, a district there, had its own President—Bishop Assolari.

The people said all this because, during periods of hunger when maize became as scarce as gold, Assolari always found his own means to supply Mangochi. For this and other reasons, the Institution deserves great respect.

Machila depicts the dilemma on the side of government when he observes that government will be expected to be seen to be accommodating to the concerns of members of the Catholic Church if the ruling party is to get the massive votes from them in the 2019 General Elections. He adds: “In any case, there is already a strong man in government (the country’s Vice President, Saulos Chilima is an active Catholic) who members of the Catholic Church would want to rely on for sympathy and support.”

Am I saying that people must never write anything concerning the Catholic Church? Far from that. And this brings me to the second side of this discussion.

Who is at fault in this whole thing?

There is nothing I hate in us than pointing the finger where a people should be looking for answers. I have heard people including the civil society organisations laying the blame squarely on the Malawi Institute of Education for doing a shoddy work at evaluation. Some have even pointed the finger at the Executive Director for the Malawi Institute of Education, Dr William Susuwele. I have picked issues with MIE on many occasions, because I love to tell them my mind but I have no business judging them without understanding the environment in which they work and principles that guide them.

First of all, MIE train publishers on what MIE look for in the textbooks. As far as I can remember (and even from my experience as a former textbook evaluator for English), one requirement in their guidelines is that one must never use education to offend another’s faith. This principle applies even during marking of scripts for our candidates.

Some have blamed the teachers who were invited to do the actual evaluation for letting issues like the one at hand slip through their fingers. What such ‘accusers’ do not appreciate is the dilemma that arises when one is tasked with the job to play the moral judge on issues education.

Romeo and Juliet, a play on the outgoing syllabus contains a scene where a Franciscan Priest secretly helps a young man and a young woman who have eloped to tie the knot. He blesses their union and afterwards, the two engage in consummation—first sex after their marriage. How would one judge this?

Scarlet Song, a literature book on the curriculum in the mid-1990s to the early 2000s, contains an implied scene in a room where Ousmane Gueye ‘panted’ or perspired as though he had been running. There had been only two of them (Ousmane and his girlfriend, a French girl) in that room. The language there suggests sex.

Life Skills books contain vivid uncensored pictures of anything girl or boy yet no one expresses shock over these things. Biology as a subject shows everything human including sexual organs. In some cases, these subjects are taught by men and women of GOD, and they teach them ably.

In all fairness I have never heard anyone express surprise at these books.

In the same light, I would ask: When does a nude picture become pornography? The answer is simple: when that which happens in private comes in public, it shocks the people. It sounds like I am encouraging pornography. No, I am showing why a nude picture by a couple would never constitute pornography in their eyes yet when the same picture or pictures come outside their four walls become porn.

In short, when that which is considered an abomination is shared by all the society for a neutral purpose, no one deems it offensive. The same incensing material, when it offends a particular grouping, becomes a cause for disagreements. Nude pictures in biology are ‘neutral’; they do not target anyone. Nude picture in a medical book are ‘neutral’; they target no one. Nude pictures in Life Skills, obscene scenes in plays et cetera, are all neutral, because they target no one. The problem arises when a particular grouping identifies itself as a victim in the work. That is what has happened with this story; it was so direct, it made some section of the society say, “It is us they are targeting.”

In literature, one can write a story based on true events. No harm especially when it presents the characters involved in a positive light. However, sometimes one can write based on true events but the yardstick should be: those who think are being shown in bad light in that story there should not come to a point where they can say: “This story is discussing me or us.” Literature requires that the people should say: “This story resembles what happened to me.” It is this element that makes a person say: “It is not me; it just resembles what happened to me.” It is the same with sermons; they target no one; they just say what is right or what is wrong; one has to choose what befits him or her.

Morality in literature and morality in law are different things. In law, morality is not necessarily law though some cases, for example, Shaw v Director of Public Prosecutions (1962), the appellant was rebuffed in his prayer to have a charge against him discharged. The court said it had the duty to protect public morals.

It is generally believed that morality should be measured according to the feelings of ordinary people in the streets, but that law (criminal law) should go further to protect that morality; and if a conduct or behaviour invokes feelings of disgust and intolerance amongst society, that conduct should be criminal. Mind you, I have quoted this paragraph verbatim from a Diploma in Law Notes.

What am I trying to say? Well, that we should never point the finger at the evaluator because the issues of morality are never easy to prescribe even by the court themselves. Second, the story in question had been ‘neutral’ when the writer was writing it, but now is has been considered one presenting a particular grouping in bad light, what should be the right answer? I reserve my opinion there?

Some have pointed to ‘conflict of interests’ in the Director of MIE, Dr Susuwele, in accepting to be Chairperson for MAWU, and perhaps in influencing the favourable outcome for the book. I think that is taking it too far.

The Malawi Institute of Education is not a profit-making organization; it is largely a public service provider. As far as I am concerned there was nothing wrong with him accepting the honour to serve in the noble cause of writing in the country. His involvement wasn’t necessarily to make money in MAWU; it was to help strengthen the culture element of writing. We all know that ‘Culture’ sometimes comes to Ministry of Education (at one time it was called Ministry of Education and Culture); today that culture element has gone elsewhere, to Ministry of Tourism, if I am not wrong. Doesn’t this reveal the fluidity of ‘culture’? Was Susuwele a MoEST thing or a culture thing in accepting the MAWU thing? Remember, MAWU is no more involved in non-fiction writing; most works of MAWU is on fiction, or pure creativity if you want; today, non-fiction is the preserve of MUANA. When it comes to issues that have an element of culture, you must be very careful in the way you label people.

Others have blamed the MAWU President, Mike, for collecting stories and going ahead translating them before seeking consent of the original creators. Sometimes a publisher uses what is known as prudence to make a decision that should be in the best interests of authors. One is supposed to seek consent from the owner, yes, but sometimes setting and time, cannot afford that you do so there and then. In that case, a person can ‘delay’ the seeking but there must never be printing before seeking consent unless efforts were made and the copyright owner could never be traced. But even in that context, the work is supposed to make this known so when the owner identifies it the process can begin.

Suppose nothing had happened and the owners suddenly received some message that their book has given them so much millions, would they not celebrate? People are saying all they can because there is a problem. I believe in people who run to seek solutions rather than to point fingers.

MAWU seeking MK320 million in Compensation, is this the best approach to the issue?

Following the withdrawal, the Malawi Writers Union went to court to obtain an injunction, stopping Ministry of Education from continuing with the decision and asking MoEST and MIE to pay it (MAWU) MK320 million, i.e. over USD 500,000. And the court, in its business, granted the injunction as it awaits a judicial review of the decision.

A judicial review is a process the court engages to determine whether a decision made by a public agent or public official had followed principles of administrative justice, that is to say, whether the making of the decision did not offend requirements to be taken into consideration on the need to make the other party feel satisfied justice was followed or done. Judicial review can also be on inaction where a public body or public agent or public official did not act in his or her capacity when he or she should have acted. Grounds or reasons for review include illegality; irrationality; proportionality; and procedural impropriety. If I would put them in a manner direct, the questions will be: Did MoEST and MIE have legal authority to do what they did, i.e. withdrawing the book from the reading cycle? Did what they do, withdrawing the book, within the powers they were given by the Constitution or (by extension) an Act of Parliament? Did they act within the four corners of their powers? If not, the decision is said to be ultra vires, i.e. beyond powers. Did they not go beyond what a reasonable person would expect them to in that context? Is what they have done the right decision in right measures so no one would be shocked by the same? Is the decision too much in relation to the ‘fault’ at hand?

From the papers, I gather MAWU lawyer opines that the decision was ‘wrongful’ or illegal.

Again, Nation on Sunday (December 31, 2017, p 3) quoting court papers observes: “(Kuleza) Phokoso (lawyer for MAWU) is of the view that government did not play its role well by not demanding amends before the book was printed.”

From the way the Ministry of Education have handled the issue, one would easily come to a conclusion MoEST is in the wrong. For example, the manner in which Machila ends his argument seems to suggest that it is Ministry of Education that stands to lose, for he says, “Of course, someone has to pay for the costs but this would be less costly compared to the damages the government stands to pay for complete withdrawal of the book.”

Without going into detail on the issue, as a publisher and writer and with the little knowledge of law I have, the matter is not as straight-forward as one may think. If you look at the manner in which the decision was made per se, it would be easy to conclude Government was in the wrong. But is the issue as simple as it appears? I don’t think so. This is why I go for a solution outside the court.

Manner of Decision or Nature of Content?

The dilemma with the issue at hand is that there are two sides to it: the manner in which the decision was made, which is the function of a judicial review; and the nature of content of the material in the material story, which is the facet of morality which has raised this whole issue.

First of all, judicial review does not look at the content or the nature of offence in the contents, it looks at the manner in which the decision was made. So it might happen that even after MAWU can come out successful on their prayer, some people can decide to approach the issue by looking at the contents from a moral angle.

Can the moral angle succeed? It is complex. In my honest opinion, we are giving our courts a very difficult job, because whichever way, there will be repercussions.

What are these Repercussions?

The first problem with this issue is that it will give others the false picture that the country is sliding back into the era of censorship. In the debate I have talked about, some academicians advanced arguments along that line, reminding each other of that dark chapter.

In Malawi, the Censorship and Control of Entertainment Bill was presented to Parliament in March 1968 by Minister of Transport and Communication, John Msonthi to meet “the need for us to be able to control public entertainment and publications according to our own Malawi standards in the interests of morality, decency and public order.” Three days later, it was law. The damage this law had caused as far writing is concerned on the Malawi scene is without parallel. Thanks to people like Steve Chimombo (Late) and others who devised ways to fool the ‘literature police officer’ that was this law. Let us not allow people to begin to think along those lines, because the matter at hand does not, even in the slightest sense, resemble that.

The issue looks small at this time, but if others will pick it up and begin to interpret it their own way, it can receive international attention, and that can be very, very unfortunate, unfortunate because the Malawi context is so beautiful and free today, the people write what they want.

The second problem is, suppose it remains on the syllabus, what will become of a work which is deemed offensive by the Catholic Church yet the court has ordered it on them, almost forcing it on them?

What if the students are told to keep using it and eventually the decision to withdraw it is upheld? Will it not be a great inconvenience to students who are already reading it? Will it not be time wasted? What compensation shall go to these students for this disturbance?

Considered from this angle, this is not an issue for courts; it is an issue for a people to come together and find a way out as one people who believe in one another.

Another important area for us to take into account seriously is the question of how sponsors can interpret all these things if we refuse to resolve them out of court. We desperately need corporate bodies to come to our aid as far as sponsoring works of fiction is concerned. The corporate world protects her brand; they very quickly disappear where those they sponsor often find themselves at variance with issues as is the case at hand.

So what should be the Way Forward?

When the Editor of the work, Mike Mvona, talked to me recently on a different issue, I gave him my side of the story and what I thought would have been the best approach to resolving the matter—going to the Bishops to offer an apology and play on their soft heart of forgiveness. These people (they are Bishops all the same) were able to forgive the MCP in the early 1960s when it jumped on them for ‘encouraging Katsonga’ to start his political party. These men forgave the MCP when they had planned to kill them for saying the truth in the March 1992 Pastoral Letter. What would prevent them from forgiving us where, unknowingly, we had offended them? And if we have this truth before us, what prevents us from exploiting it and find the way forward in it?

This is why I find what Machila says on the matter the most feasible option: “Considering all these factors, in my opinion, there is no need to panic considering that it is only a single story that is ‘at fault’. . . Should the whole basket of fish be thrown away because of one identified bad fish? The offending story could simply be removed from the book without affecting the syllabus.”

This is not a matter for court, because from this one issue can arise many. Second, I feel grieved every time a writer or publisher chooses the path to court on issues writing and publishing though I must appreciate the fact that they have a Constitutional right to seek redress in court where they feel their rights have been infringed upon. For me, the best way to resolve this issue is to invite veteran publishers and editors (Dr James Ng’ombe, Egidio Mpanga, Dr Steve Sharra and others to find the middle ground).

Honestly, honestly, the court does not befit us. Let us leave the court for corruption cases and these other things; let us solve this our own issue without, and I repeat, without pointing the finger. Don’t kill Susuwele; don’t kill the evaluator; don’t kill MoEST. Let us find a way to address it. In publishing issues of infringement, et cetera are common, but the court route is not always the way we resolve them

Let us learn something from this and correct ourselves and move forward as one great people, Malawians.

In short, I think the solution is to remove the single work (the individual short story) deemed immoral, or replace it with another. I am not happy to see people fight over this, giving others a bad picture of us as a nation. The equation of Art and Court doesn’t balance. A writer cannot square it with the Church; these are anointed of GOD. Let us invite them or convince them to invite us to talk it over a cup of tea or even a Bible verse, if you want.

May our Wonderful GOD, the Father of our LORD Jesus Christ bless us all in this wonderful New Year as we build this Land GOD entrusted in our care.

Thank you.