The High Court in Blantyre has ruled that the matter in which the Malawi Writers Union (Mawu) was challenging Ministry of Education’s decision to remove its Chichewa Literature textbook from the secondary school curriculum is more contractual and commercial in nature.
In 2017 the Ministry of Education, Science and Technology (MoEST) ordered the removal of the book titled KusinthaMaganizo ndi Nkhani Zina from the list of Malawi School Certificate of Education (MSCE) examinable textbooks.
Through a notice signed by its principal secretary Justin Saidi advised all education division managers and other stakeholders that the book had been withdrawn because it contains a story titled Mdalitso Wabodza, which was deemed as immoral in nature and portraying a damaging image of the Roman Catholic Church.
However Mawu, through lawyer Kuleza Phokoso, in December obtained an injunction stopping MoEST and the Malawi Institute of Education (MIE)’s decision.
This week, MoEST admitted before High Court Judge Jack N’riva that Mawu’s claim on the basis of the withdrawn book is also contractual and commercial in nature arising from a breach of the removal of the book from the Syllabus.
In its defense, MoEST, in the court documents which Nyasa Times has seen, states that as defendants they have “powers to determine the curriculum, syllabus, courses and subjects to be offered in any school or college, as such [have] powers to withdraw any book if [they are] of the opinion that it presents some challenges”.
MoEST acknowledged this was contrary to the period of fiveyears expected by the claimant, saying for that Mawu have a remedy in monetary compensation which the defendant can pay.
“This is purely a contractual matter, which falls under private law not public law. The defendant hence has an altenativeremedy in private law under contract law, and damages would be an adequate remedy and the [as] 1st Defendant [we are] capable of paying,” adds MoEST.
Mawu is seeking K320 million in monetary damages and since Justice N’riva has ruled that the matter is more commercial than public in nature, Mawu will proceed in the High Court Commercial Division with the sole claim of the compensation.
Justice N’riva however did not make a decision on whether the Minister of Education had power to remove the book or not, or whether his decision was made ultra vires the law, or whether his decision was unreasonable. The court did not decide on those issues.
Reacting to the determination, Phokoso, in an interview said: “We are aware that the court has held that Mawu’s interest in the matter is the K320 million profit they should have earned had it not been for the removal of the book from the syllabus and hence the matter is more private law, contractual, commerciallaw in nature than the public law limb dealing with the legality, validity, reasonableness of the Minister’s decision to remove the book from the syllabus.
“The defendants admitted this breach of the contractual aspect of the matter and said they can pay. Our instructions are to proceed in the Commercial Court solely for the K320 million compensation and we have done so.”
The Ministry of Education because the book will remain removed from the syllabus.
Mawu as they will still get their K320 million in the High Court Commercial Division
The Catholic Church because their wish to have the book removed has materialized.
The Malawian taxpayer who will pay Mawu K320 million in the High Court commercial division for something that could have been avoided.Follow and Subscribe Nyasa TV :