Judges Should Sign Performance Contracts

Published on 25th August 2008

Kenya's Chief Justice
Prime Minister Raila Odinga and Justice Minister Martha Karua insist that judges and magistrates should sign performance contracts whereas Chief Justice Evans Gicheru and other senior members of the bench contend that such a move will undermine judicial independence in Kenya.
The spirited opposition to performance contracting by the Chief Justice and his colleagues displays a lack of conceptual understanding of the process. A Performance Contract is basically an agreement involving the government and a state entity which outlines the broad objectives for that entity, lays down goals for quantifying productivity and offers incentives for accomplishing these targets. Judicial independence is a legal dictum to warrant that the decisions of the judiciary are impartial and not subject to manipulation by the other arms of government or by private and political interests.
Judicial independence (hinged on the security of tenure of service) enables judicial officers to exercises unfettered discretion in determining cases and resolving disputes. In Kenya, this independence is guaranteed by the Constitution which gives judges of the High Court and the Court of Appeal security of tenure and confers the Judicial Service Commission with the mandate of superintending over the affairs of the judiciary. Even with this autonomy judges are still required by law to exercise their discretion reasonably, adhere to certain rules and proclaim judgements that reflect fidelity to the law. Besides, not every judicial officer is involved in the hearing and determination of cases. Some are fully engaged in the management of the administrative and clerical wing of the department.
The Kenyan judiciary has stood still for decades and failed to reform and embrace modernity.  The judicial process and the criminal justice system are still highly steeped in primordial procedural practices which hurt and deny poor unrepresented litigants access to substantive justice. Inadequate staff and lack of financial resources have often been cited as the reasons for the incessant delays in determining legal disputes and disposing of cases. Laxity, ineptitude and lack of integrity play a significant role too. This is the main reason why the judiciary ought to embrace performance contracting.

International best practice shows that governments and global agencies are currently implementing performance contracting to enhance performance of civil servants and entrench good governance and accountability. Goal setting is an important evaluation tool for determining resource allocation and assessing skill gaps in an organisation.
The Judicial Service Commission (JSC) should set down the mission, broad objectives and the strategies for achieving the mission of the judiciary. It is upon these broad objectives that judges and magistrates will set their key result areas (KRAs) and key performance indicators (KPIs) upon which they will be evaluated. The initial goals and targets for each individual officer can be set on the basis of historical data regarding past performance. The KRAs and KPIs can be structured in relation to integrity, training, sitting hours, number of cases to be heard and determined by each officer, the number of judgements and rulings delivered and timely resolution of administrative issues. This can easily be done without fettering the discretion of judges and magistrates to determine cases on their own merits. Since judicial officers will set the criteria for their own appraisal by peers, it is difficult to discern how performance contracting will interfere with the exercise of judicial discretion. Judicial independence should not be used as an excuse for inefficiency and ineptitude.

Capt. (Rtd) COLLINS WANDERI, LL.B (Hons), PGD (HRM), Nbi, L.L.M (Can) UNISA, Dip. Law, KSL, CPS (K), Advocate, Certified Fraud Examiner (CFE), Commissioner for Oaths, & Notary Public.

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