Judges should sign performance contracts.
In his article appearing recently in the Sunday on Sunday, Hon Mulula Kilonzo posits that contacts alone would not add value to the performance at the Judiciary.

With all due respect, I beg to differ.

I want to believe that by signing the performance contracts, the Judges would simply be submitting their expected outputs to the public without shedding their independence. They owe this to the public just as much as we vouch for their independence. You do not in any way subjugate the independence of your office by letting the public know what they expect from your office.

As it stands now, the public do not know the time frame by which to expect judgement in any given case. Once a case has been filed, even simple cases can drag on for ever. I bet the public ought to have some time frame and this can form part of the performance contracts. If the Judges are subjected to scrutiny, these cases that drag on without closure for ever will save the litigants the high costs of such long periods.

In my opinion, time frame for which a case should be determined will do 4 things;
1] Will reduce the kind of congestion that we currently have at the Judiciary,
2] Make the cost of Justice affordable
3] Make litigants know when to expect Judgement in any given case filed
4] Make lawyers more effective.

When the public have a clear time frame within which to expect judgement in their cases, we will say goodbye to laziness at the Judiciary for judges will be alert and on top of issues. With such alertness, the Judiciary will dispense justice on time and we will have no more back log of cases.

If we have a definite time frame with which to expect judgement, the costs of litigation to the litigants will come down drastically. As it were now, you spend hell on earth as the lawyers keep talking too and fro on mundane matters, some very alien to the matter in court. The end cost is that the lawyers are at peace with the current mess in the Judiciary, for, therein lies their daily bread.

With a clear time frame, the lawyers will charge on the merit of the case in question and more so as per their billing schedules. This will make the best lawyers have as many clients while the funny ones will be weeded out on their own incompetence.

It is morally wrong for a Judge to come to court daily and dispense no justice. This leads to more congestion as new cases are filed on a daily basis. The public expects that as new cases are filed, old ones are dispensed with. Simpler cases ought to be heard and judgement given on the same day. Only then will the current back log be cleared.

The lethargy and I-don’t-care attitude amongst the Judges is what has led to the current sorry state at the Judiciary. Because the public does not know by when to expect judgement in their cases, Judges tend to take advantage. And therein broods corruption and corrupt tendencies which might make a Judge pass questionable judgement.

With performance contracts, the public would know the output of each Judge as their Independence remains respected so long as they dispense justice based on the law. This will also not reduce their guard against abuse of power by the ruling elite. But as things stand now, we cannot pretend that the Chief Justice is not held hostage by the Presidency, his appointing authority.

This kind of hostage is manifested by the speed by which the current Chief Justice had President Kibaki sworn in amidst claims of electoral irregularities. If we had an Independent Judiciary, there could have been no haste. The law should have taken its course, and no Kenyan would have died.

Facts are as clear as snow that with the said Independence at the Judiciary, corruption is still running amok in Kenya. Will Kenyans be happy to remain in this state where our Judiciary makes Kenya the safest haven for the corrupt?

It is a known fact that justice in Kenya in most cases is not dispensed on the gravity of the law. Most justice is dispensed on the need-to-know basis and this is why most cases are overturned at the Court of Appeal. If Judges in the lower courts are subjected to known performance outputs, they would not waste the time for the litigants into long drawn search for justice while they know from the onset which side of their bread is buttered.

If the law is the same, its application is the same and the Judges all took the same course, why would their interpretation on simple litigation be different?

What makes the difference is the integrity and competence of individual Judges. We have some who hold their persons in high esteem and as such, would pass impeccable judgement. In the same vain, we have some judges who are canons for hire. To this lot, subjecting them to performance contracts is the best way out.

In my study of judicial jurisprudence, I have seen cases where the judgement meted out suggests a draw. I have seen a case where the Judge found fault with the respondent, yet failed to award the prayers sought by the appellant. Could this have been a case where the Judge abdicated his duty and sought refuge in the maze that is the Judiciary?

These are the whimsical kind of judgement that bring disrepute to the integrity of the Judiciary as they waste the times for both the litigants and the lawyers. As he wastes the time for all, he walks smiling to his bank every end of the month, at the cost of the tax payers who expect better service delivery from him.

It calls for a performance contract.

I do not believe that the Kenyan Judiciary as it stands now is truly transparent and accountable. It could be transparent and accountable to all those who are hell bent on defeating the course of justice. How would you say it is transparent and accountable when the poor and down trodden are denied justice on account of their social stations, while thieves, pimps and charlatans make merry all day long?

It is my considered view that something is not adding up at the Judiciary. Judges drone as they pass judgement which most litigants do not hear nor understand. Is it a crime for our Judges to talk loudly and clearly for the benefit of all in court? Or is it a crime to dispense with straight forward cases out rightly?

Cases abound of aborted justice. Just like a Doctor amputating the wrong leg then ultimately coming to terms with his missed diagnosis, he amputates the right leg. The end result is that the patient ends with no legs, courtesy of the Doctor. Same with litigants, they loose both legs in the quest for justice in Kenya.

When a Judge gives a suspect ruling, it does not matter that peer review comes down the line vide the Court of Appeal. The damage has been done and despite the requisite compensation given out 10 years down the line by the Court of Appeal, the damage has been done. You cannot claim back the lost time.

What must come down with this peer review is appropriate punishment meted out to the Judge who miscarried justice to the litigant. He must be made to meet the full gravity of the law and pay the person whom he caused delayed justice. His act could have been intentional at the time, or for short term gains. Letting him scott free is not the best way out. It encourages other Judges to similarly abort justice to many other litigants.

As it is now, we have no mechanism for punishing wayward Judges who misapply the law.

But on the whole, I do agree that the selection of the Judges should be open to public scrutiny and parliamentary vetting and should be on a competitive basis. The current system where Judges are appointed in return or in anticipation of favours in itself erodes the purported belief of the Independence of the Judiciary.

The public as the tax payer ought to know what they pay the Judges for. We can only see this output in the number of cases dispensed with on a daily basis competently.

Odhiambo T Oketch
Komarock Nairobi

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Date: Tue, 23 Sep 2008 05:27:51 -0700 (PDT)
From: Odhiambo T Oketch
Subject: Judges should sign performance contracts.