Judges Should Sign Performance Contracts PDF Print E-mail
Written by Capt. Collins Wanderi Munyiri   
Thursday, 21 August 2008

Prime Minister Raila Odinga and Justice Minister Martha Karua insist that judges and magistrates should sign performance contracts whereas the 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; it warrants that the decisions of the judiciary are impartial and exempt from manipulation by the other arms of government or by private and political interests.

Judicial independence hinges on the security of tenure of service; it enables judicial officers to exercise unfettered discretionwithin the law 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 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 backward procedural practices which hurt and deny poor or 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 of the judiciary, and the broad objectives and the strategies necessary for achieving that mission. 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. Collins Wanderi Munyiri
About the author:
Captain (Rtd) Collins Wanderi is a Nairobi Advocate, Certified Public Secretary, Certified Fraud Examiner, Commissioner for Oaths, & Notary Public. He writes regularly on Kenyan affairs.





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wapi?
written by T Wainaina , August 21, 2008
I understand that Wanderi always wants to agree with Raila, it is part of the wave I am seeing in Central Province more and more, a respect for violence and thuggery. The Gikuyu are making a good name for themselves, hit us hard enough and we will love you.

However, can Wanderi tell us exactly what parameters will be employed in this performance evaluation? Are there countries where these contracts or similar measures have been put in place, and this without affecting the independence of the Judiciary?

A general rule still seems to prevail, when Raila or one of his lot say something, it is more likely than not to be utter foolishness. Let us now wait for more grown-up solutions to the very real and pressing problems with our justice system. Martha Karua and the Nation (what an idiotic edtorial) shame on you.
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written by Captain , August 22, 2008
Jambo Wainaina,
I do not necessarily have to agree with Hon. Raila Odinga on anything, no , I have a mind of my own and the temerity to put my ideas down in writing. I have sad it before, Hon. Martha Karua is one of my heroines. I do not support thuggery and or violence, I did the ropes and served my time in the Armed Forces, I know better than you the repurcussions of war. Hon. Raila is a Kenyan citizen and the last time I checked he is the Prime Minister of the Republic of Kenya; a key player in the executive arm of government. You are aking about parameters for evaluating judges and magistrates. Here you go, People(human resources, staffing, training, etc) Internal Processes(accounting for expenditure, response to audit queries, adherence to internal standards, integrity, speedy resolution of administrative issues etc), Customer(litigants, parties to suits, speedy determination of cases, urgent applications, etc) and Fidelity to the Law(compliance with constitutional & statutory requirements are the thematic areas for evaluating judicial officers.

On this subject, I have the advantage of speaking from a point of knowledge and experience. As an advocate, I know the frustrations people go through due to the laxity and ineptitude of judges and Magistrates. Having successfully prosecuted numerous cases before the Court Martial, I know the difference between them and ordinary courts.

And yes, performance contracting is now a basic tool of management for judicial & quasi-judicial officers in many parts of the world, please do a bit of reading!
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written by manta ray , August 22, 2008
Why don't MPs, starting with Raila and Karua in their capacities as MPs in their own right, also sign performance contracts with yearly targets for their respective constituencies to be met, otherwise they also agree to go home?
It is true the Judiciary needs serious reform, but as the Chief Justice insists, one arm of the Govt should not be setting parameters or shouting at another arm to do this or that without consultation. It seems to me that what Raila and Karua are doing is to disrespect the authority and absolute independence of the Judiciary in rushing to the press to make pronouncements without adequate consultation. The impression created is that the Executive as represented by Raila is somewhat superior to other arms and does not know the limits of its supervisory jurisdiction, precisely the opposite of his posturing as an accountability merchant.
People really need to think through and seek to discern the deeper implications of the Bondo Bumpkin's activities and pronouncements, most especially because of his political background, history and style. What you see IS NOT necessarily what you will get.
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be more specific
written by ezz , August 22, 2008
...,performance contracting is now a basic tool of management for judicial & quasi-judicial officers in many parts of the world,...

Which parts of the world?
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Results-Based management in every organisation is necessary
written by pndiangui , August 22, 2008
I really don't see the problem as to whether the Judiciary should go for perfomance-contracting. In assence as I have said it before in these papers that the greatest innovation in governance that the Kibaki regime may claim an honour for its 10 years if it lasts is bringing on board Results-based mangement within all government arms. It is a key change management tool to enable a shift in behaviours of civil servants which is part of creating the accountability environment and quality of service. Infact one of the things that 'governance innovation' presents is that the costs of adoption are not high since we don't alot of unionised civil servants that can resist these tools as it has happened elsewhere.
However I agree that the introduction of performance-contracting in the Judiciary need to be thought out to make sure it doesnt undermine it's independence. With that I would think we need to take a closer look of the role of the Judiciary and how its contribution to the well being of Kenyans is determined. Who does the CJ report to ? What are the ojectives of his office ? How can we measure whether the objectives of his office are being met in regards to very fundamental idea of why the role actually exists. Then we can move top-down from there to cascade the objectives and goals of the Kenyan Judiciary down to performance and rewards of the top judge down to the administrative secretary. And this should then be a personal charter along which individual career goals are based upon , so that you only have results-oriented competent individuals being promoted.
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Judges should sign the performance contracts
written by Peter Njenga , August 24, 2008
The good book says that that the guilty are afraid. What are these judges so afraid of anyway?
In fact, they should be among the first persons to sign performance contracts, given that the judiciary seeks to ensure that what is both right and just is done.
I wonder why they are so opposed to this proposal.
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leave judges be
written by Stephen Wanyama , August 24, 2008
It all depends on what we mean by performance contracts. I am sure that if we are talking about ensuring that Justice Gicheru puts in a full day's work instead of coming in at 11 am and leaving at 3 pm, then there will be no opposition.

Also, a lot of what our esteemed Captain proposes is administrative work, and I am sure no one in their right mind would oppose that, after al, any citizen of our country may one day be caught up in a situation where he or his loved ones suffer the pain of our terrible judiciary system.

The protestations of the Judges however seem aimed not at this sort of performance contracting (which I think no one would oppose), but rather the attempt to benchmark judges -which even sunny side up- still reads as interference to me. Indeed the very notion in a judge's mind, that there is an excuse rather than committing a crime, or being incapable of performing his duties that would lead to his being ou of a job, inteferes with his performance of his duties.

There is very good reason for having judges enjoy security of tenure. Let us not pretend we skipped that class. Stenographers, computerisation, translators, a more efficient investigation, police and remand system. Let's also think about these things as we insist that judges behave better.
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performance contracting & judicial independence
written by Ngigi wa Kamau , August 25, 2008
Unfortunately for Kenya, we collectively seem to ride waves of fashionable ideas without examining the content. Such has been the case with arguments for devolution, majimboism, and now Performance Contracting.

A significant proportion of this collective hysteria is due, in part, to our media's deference to the holy ODM Messiah - proponent of all that is just & true & right. In fact, Right is now part of his name.

However, another more insidious cause is collective ignorance.

Talk of public performance management is wholesome only if we define how exactly we will measure the output of public officials. Recent trends, as part of the New Public Management (NPM) waves, prefer to view citizens as consumers of government services. This view derives from the neo-liberal origins of the NPM movement. Thus, government is equated with a market player providing services on a user-pays basis.

Thus, for example, we can judge the efficiency of a hospital by the number of patients served daily, length of queue, revenue generated per day et cetera.

Similarly, if we conceive the prosecutors and respondents/defendants as customers of the justice system, the ideas of performance management would have us examine things like length of time taken to determine a matter, number of convictions/acquittals (AG & Police),number of cases determined by individual judges/magistrates etc.

However, in our debate, no one is specifying what exactly they mean by good performance (There is an implicit premise that judicial performance is wanting).

Worse still, the Messiah - being the fellow apparently tasked with overseeing performance of state - seeks to bind the judiciary into a agreement with his office stipulating what must be done. After all, a contract is an agreement between two parties. IF the judiciary is to sign a contract, it cannot contract with itself. It will be contracting with the executive. This means that the Judiciary would be subject to the control of the executive.

Any lawyer upholding legality will know that this is unconstitutional and a significant affront to judicial independence. Thus, the Chief Justice's comments regarding the unconstitutionality of performance contracting insofar as it relates to the judiciary were correct. He further charitably advised anyone seeking to introduce PC to first alter the constitution.

The only thing I need to note is that performance management is an art not a science. Human being adapt to incentives and innovate where the rules are unfavourable.

Thus Performance Contracting especially in the public sector generates perverse incentives. In the example of the hospital above, clerks & nurses under pressure to see many patients and/or reduce queue lengths can:

1. Turn away patients from public hospitals (thus reducing queue length)
2.Not devote enough time to interviews & diagnoses - hence "seeing" more patients per day but providing rubbish health care
3. Increase the cost of public health care (thus turning away poor people) etc.


The judiciary could:

1. Convict as many suspects as are presented ( ignore due process/fair trial etc)
2. Dispense with requirements for representation at murder trials
3. DEclare many issues of public interest non-justiciable
4. Increase the cost of access to reduce demand for judicial services

Summary: Government is not a business entity. Issues of fairness, equity etc apply and non-customers have an interest in how government service users are treated.

The focus should be on generating Public Value - not increasing relatively efficiency for narrowly defined efficiency's sake.

Ngigi



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Those wigs, those wigs.
written by mkosakabila , August 27, 2008

After seeing the white/gray wig on the front page, I felt driven to make a posting, not because I have any particular liking for the wigs worn by our learned friends, (I think they’re unnecessary and unbecoming) but rather the gravity of the conversation was driven home. No kidding.

The postings on KI have to be commended. They are careful and nicely articulate, from multiple perspectives, the dilemmas we face when we try to introduce performance contracting for our judicial system. I support the Rt Hon Prime Minister and Hon Constitutional Minister on this, as a matter of principle, but I also believe that any such system will have to have a monitoring and enforcement component that guards against Ngigi’s perverse incentives, moral hazards, but also an accountability system that does not undermine the fundamentals of independence and integrity.

My sense is that independence is a behavioral sub-outcome, and effectiveness a final desired outcome which is bound by the appropriateness of the process from which it is so derived. Following Ngigi’s post above, what we need is a set of rewards and penalties that can lead to effectiveness while retaining independence. Performance contracting is a necessary condition, likely not the only one, towards that goal.

How can we measure the quality of outcomes? I would want to fall back on what I consider to be the roles and responsibilities of our judiciary: To protect/defend my constitutional rights and freedoms, to ensure that I am fairly treated under the law and to guarantee me equal justice regardless of my position, wealth, gender, race, religion etc. How effectively they perform these duties would form the basis of my evaluation, and for which I would want objective indicators and criteria developed. However, as pointed out by Wanyama, actors’ roles in the judicial system vary and criteria need to be relevant to specific tasks.

But there is the danger that the evaluation process can degenerate into an exercise in victimization. I would suggest that the evaluators consult a broad range of actors that interact, professionally, with the member being evaluated and that these consultations be anonymous and that the one being evaluated is also consulted and interviewed. The evaluations and consultations should focus on professional skills and the handling of cases, but also on the overall conduct of the individual in the courtroom. Now, I personally think that such a process of evaluation can be greatly boosted by placing in the public realm information on the judges’ rulings and decisions. We may already have something of this sort going on as I do remember pulling up several case rulings off of the internet a couple of months ago. While there is a case for somewhat insulating the judicial system, I see no harm in making transparent to the public the details and reasoning of the rulings. An informed and well organized civil society, media, can serve a monitoring function as well.

The question of independence is separate but related. One would imagine a merit-based selection of judges, from a pool of practicing lawyers, by an independent, non-partisan team comprising peers and non-peers, that in turn has the authority to make recommendations when an individual makes decisions that are contrary to her/his duties and who does not follow process as demanded by the law. The good captain somewhere mentioned a Judicial Commission. I am interested to be educated on the constitution and function of that commission. I have not mentioned security of tenure because I really don’t understand what purpose it serves. Independence??? Let’s not overlook the strong possibility (if not reality) of judges who have had tenure security, and strong salary incentives, but still not acted independently. I will not name names, suffice to say that tenure security is no panacea for independence.

Overall, judicial performance is a very broad and complex concept, that covers a broad range of actors and actions, of which independence and effectiveness are important, yet one may also think of accessibility, etc. I’m afraid I’ve danced around a couple of issues (thanks to multi-tasking—anyone read the “Myth of multitasking”?), which IMVHO are basic to an effective and independent judiciary that can curb excesses of the executive and of private interests, enforce equality, and so on.

In the end, what we need is to build public confidence and trust in an institution that is foundational in our shared lives. Performance contracting is not a bad thing and should not be feared. It is one out of a bunch of complementary ways, including the provision of information on reasonings and rulings, of structuring incentives in the judiciary. We of course must take great care in its implementation.


Ps: lose those wigs?! ditto for the dresses.


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written by mkosakabila , August 27, 2008

For what its worth:
Below a link to book and video--myth of multitasking:
http://www.amazon.com/Myth-Mul...0470372257
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@MK
written by Ngigi wa Kamau , August 28, 2008
Thanks for the fantastic nuanced thoughts. However:

My sense is that independence is a behavioral sub-outcome, and effectiveness a final desired outcome which is bound by the appropriateness of the process from which it is so derived.


it ought not be said that judicial independence is a sub-outcome of judicial processes. The underlying basis for having a judiciary is to protect the weak from those who would abuse power - whether it is political, financial, pseudo-moral (think NGOs) et cetera.

If the judiciary were controlled even remotely by the executive, it would mean that those entrusted with employing coercive powers to achieve the public good could restrict the fetters placed on them by either dismissing judges with spine, threatening their positions, undermining their pay...and any other means imagination can conjure.

This would weaken confidence in the judiciary as a source of unbiased decisions. Without confidence, there is no expectation of justice. Without expectations of justice, it is a quick ride into anarchy & mob rule.

A prescient example is the nature of mob justice in Kenya. If people lose confidence in the system, they take it upon themselves to dispense "justice". In such a world, there is no protection for the innocent, no sense of proportionality, and really no justice!

Judicial independence thus ought to precede efficiency to guarantee justice - the rationale for the Judiciary's existence. Nevertheless, judicial independence without efficiency is in itself, injustice.

Nuance is key to address the moral hazards & perverse incentives.

Ngigi


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Ngigi wa Kamau
written by mkosakabila , August 29, 2008
it ought not be said that judicial independence is a sub-outcome of judicial processes.


I'm afraid I didnt mean that--apologies for my lack of clarity, good you called it out. My sense is that independence is in itself an outcome of the overall (institutional) environment in which the judiciary is embedded--and you've given good examples eg controls by the executive, in whatever way.

ps: n where did Guest go anyway??
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written by Stephen Wanyama , August 29, 2008
Peter Ndiangui asks
Who does the CJ report to? What are the objectives of is office.

This perhaps is the whole point. The CJ ought really to report to no one BUT the Kenyan Constitution, or in a restricted sense, the public good as represented by the Constitution.
The objectives of his office ought to be to ensure a properly run judiciary, with all that this means. He must not ever be partisan, not even to the will of the Kenyan people. As Gicheru is at pains to point out, you check the Judiciary by changing the law. This is our system of checks and balances!

Peter Njenga asks
What are the judges afraid of?

Pakistan anyone? It may seem unpalatable at the moment, but the pain of having to do with a judiciary accountable to Bumpkins and Kitchen Cabinets is not something anyone should wish on us.

wa Kamau writes
Worse still, the Messiah - being the fellow apparently tasked with overseeing performance of state - seeks to bind the judiciary into a agreement with his office stipulating what must be done. After all, a contract is an agreement between two parties. IF the judiciary is to sign a contract, it cannot contract with itself. It will be contracting with the executive. This means that the Judiciary would be subject to the control of the executive.

This for me is along with mkosakabila below the comment of the thread. I would also go so far as to say that all contracts hav penalties, there must be some pain. Are we suggesting then that we will be dismissing judges for not reaching some pass mark? Or is this an entirely cosmetic facility?

Mkosakabila writes
But there is the danger that the evaluation process can degenerate into an exercise in victimization. I would suggest that the evaluators consult a broad range of actors that interact, professionally, with the member being evaluated and that these consultations be anonymous and that the one being evaluated is also consulted and interviewed. The evaluations and consultations should focus on professional skills and the handling of cases, but also on the overall conduct of the individual in the courtroom. Now, I personally think that such a process of evaluation can be greatly boosted by placing in the public realm information on the judges’ rulings and decisions.

I am convinced that the entirety of mkosakabila's post, but especially the paragraph I have chosen is a declaration for exactly why this proposal is so dangerous. We have no culture of accountability, we are tribalists, bullies and generally uncivilised. How can we hope that such a system would work in any way but to the benefit of power realities?

P.S. Most idiotic statement of the week. The Speaker of Parliament tells the judiciary to be careful lest public opinion goes against them! Really? Gathara's Cartoon Project Tame is particularly compelling now. In a society as backward and vicious as ours, one can only tremble at the spectre of judges playing to the gallery. Why not just start electing them then?
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huh?
written by mkosakabila , August 29, 2008
I am convinced that the entirety of mkosakabila's post, but especially the paragraph I have chosen is a declaration for exactly why this proposal is so dangerous. We have no culture of accountability, we are tribalists, bullies and generally uncivilised. How can we hope that such a system would work in any way but to the benefit of power realities?


Wanyama:
I would respond to your rather unhelpful post above (believe me--there's a LOT I could say) if you would but indulge me with just one thing: an alternative suggestion on how to improve a decaying system sensu the good captain’s article. You have objected to performance contracting just as you have denied electing judges, the latter of which I'm in agreement. Lay your alternative(s) on the table and let's discuss them, without which your refutation risks simple categorization as arrogant and mean-spirited.

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general accountability
written by Ngigi wa Kamau , August 30, 2008
Is it overly presumptuous to assume that Donald Kipkorir first took a peek at KI before penning his piece in today's Daily Nation? If yes, then salvation can also come to defenders of all things Messianic.

@MK,

You said that:

My sense is that independence is in itself an outcome of the overall (institutional) environment in which the judiciary is embedded


& that;


The evaluations and consultations should focus on professional skills and the handling of cases, but also on the overall conduct of the individual in the courtroom. Now, I personally think that such a process of evaluation can be greatly boosted by placing in the public realm information on the judges’ rulings and decisions.



I agree, Independence is certainly an outcome of constitutional architecture - hence institutional environment. However, at the design stage, that independence must precede the workings of the judicial system and is checked ( re accountability) by the requirement to publish decisions and the reasoning behind them.

Fortunately, if judges are unwilling to publish their ratio decidendi, an Act of Parliament could require such publication without infringing on the Constitution & judicial independence. In this regard, I think the return of the Kenya Law Reports in one the Chief Justice's greatest accomplishments because crucial reasoning & decisions are available to the public at no cost at www.kenyalaw.org.

The challenge is to ensure that all public decisions be they by courts of law, administrative tribunals, public corporations (think tendering) are available to interested parties. Perhaps they can be sorted by province and have unique websites devoted to them. The era of public institutions adding the rider that body X is not obliged to provide reasons for its decisions should be long gone.

In fact, accountability should not be about responding to the demands of other arms of government - it should be about ensuring as much probity as possible to remove any doubts/innuendo that may linger in the public conscience as to the fairness of public processes.

In this regard, and much as I admire her intellect, I disagree with Martha Karua.

Ngigi

PS: Anyone note that in the recently published Constitution review bill, a referendum would only need 25% of votes cast in at least 4 provinces to pass? Even if most people hate it, it would still pass - Martha is being fishy.
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written by mkosakabila , September 10, 2008
Why Judiciary should sign work contracts
http://www.nation.co.ke/oped/O...index.html
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written by Stephen Wanyama , September 10, 2008
I have read few worse articles on the subject.
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StevO!
written by Daniel.Waweru , September 10, 2008
I'm going to have to agree with Wanyama - regretfully, it must be said. The article is egregiously bad: first-year-law-student late-night drivel expressed in management speak. Yuck.
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written by Ngigi wa Kamau , September 10, 2008
I fear anyone who ever engages Sunguti to "consult" for them.

Reminds me of those primary school essays that started along the lines of: Performance contracting is good because....

Shame the fellow uses fancy terminology yet remains clueless about what he is talking about. Gicheru misdirecting himself? I don't think so.


Ngigi
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written by mkosakabila , September 10, 2008
Guys! Guys! Stop the drivel yourselves, including the rather personlized ones.
The fellow gives his management take and argues from a public administration, service delivery lens. What's wrong with that? Not every one working in the judiciary is a judge terrified of losing the increasingly elusive independence. Why do I get that eerie feeling that Justice Gicheru himself should be the last one to harp on and on about independence?
I even find the fellow's parting shot quite delightful--the one about striking without goal posts. Nice!
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