When I think of mischief, I think of boys, or of boyhood. Mischief really is the essence of being a boy. Mothers know this, and they either grit their teeth in frustration, or relax their lips in smiling content. Deep down, I believe all mothers know that to take the mischief out of their boys is to take their boys out of their boyhood.
Mischief means unbridled fun, experimentation, and that strong urge to break down boundaries and rules, and see what lies beyond. It may be vexing, it may cause petty annoyance, but it is a phase of growth that boys pass through, an innocuous rite of passage that only loses its innocence when the boy finally becomes conscious of it.
When I think of mischievous boys, I think of Mark Twain’s iconic Tom Sawyer. In literature, Tom Sawyer is the ultimate mischief-maker, the boys’ boy. Picture Tom Sawyer hiding in church as his own funeral service is held, while a grieving Aunt Polly and others tearfully eulogise him. Another memorable Tom Sawyer incident was his illegal river swim, Aunt Polly’s discovery, the punishment to whitewash the home fence, and how Tom turned his discomfiture into one of his greatest triumphs.
To counter unbridled mischief, parents become lawmakers, naturally developing rules whose complexity gradually increases to keep pace with their children’s development. Each rule seeks to contain a particular mischief. But the web of parental rules collapses if it becomes too complex, or if it loses its strong connection with the basic unalterable principles found in a simple framework like the Ten Commandments.
So the mischief rule of lawmaking prevents laws from growing to unmanageable levels. In law reform, it is critical that the reformers always ask themselves: what mischief is this particular rule trying to cure? Unless the mischief is clear and proximate, lawmakers should desist from passing laws just for the sake of regulation.
One of the problems with the Kenyan statutes in development lately is that the mischief rule as a principle of lawmaking has been lost. Look for example at the recent Education Bill. One of its provisions seeks to regulate pre-primary education, which currently is totally within the realm of parental choice, with the same rigour as primary education.
In Nairobi, over 100,000 children in the slums attend some form of schooling that is outside the public education system, simply because Government has been unable to provide them with proper schools. Many children elsewhere in Kenya attend schooling because of community initiatives, religious sponsors or private institutions. If there is any mischief, it is that these children do not benefit from taxpayer money allocated to free primary education equally or at all.
The proper response to this mischief is a resource-allocation one. Government needs to invest equitably in education to reach marginalised areas, but not to hamper the private or community schools that already exist. The Education Bill however turns the ‘mischief rule’ topsy-turvy. It expressly excludes education funds from sponsoring children in private schools. It also punishes parents who may opt for a different education model from the State-sponsored one.
It even hampers freedom of teaching in public schools through a one-size-fits-all mentality, for example by insisting that weak pupils may not repeat a class, despite what the teachers, parents and even the child may think.
The Traffic (Amendment) Bill 2012 is another law that fails the mischief rule test. The problem with traffic rules in Kenya is implementation, not imprisonment for basic offences.
Once law reform loses the mischief rule, its provisions will create the biggest mischief of all: laws that are broken with impunity, and a resulting culture of corruption and impunity.
The author is an Advocate of the High Court
