The rejection by the Chief Justice of a proposal by the Prime Minister to introduce performance contracts in the Judiciary is increasingly appearing to be a desperate attempt at self-preservation. The stance by the Chief Justice and his colleagues that the proposal is illegal is needless posturing that does nothing to clarify their opposition. And to argue that such contracts would interfere with the independence of the Judiciary is highly untenable before a discerning citizenry. It is even foolish, coming from an institution whose image of integrity has plummeted severely in recent years and thus remained under scrutiny.

The Judiciary is widely perceived to have stood still in the sands of time and stubbornly refused to embrace reforms. And its reluctance to embrace change is perhaps best symbolized by the intimidatory deportment beneath a strange wig and swathe of red cloth around our Chief Justice. His case is made worse by a putsch from members of the Bar who are asking for his removal on grounds of incompetence, arrogance and even laziness. The lawyers are miffed that the Chief Justice comes to office at 11am and calls it a day at 3pm and that securing an appointment with him is near impossible. Indeed, the remarks from the Chief Justice and Judges who had gathered for the fifth Judges’ Colloquium in Mombasa paint a grim picture of a relic in dire need of a make-over.

“We hold constitutional offices and until the law is amended, performance contracts for judges would be illegal,” said the Chief Justice Evan Gicheru. Court of Appeal Judge Riaga Omollo said the contracts would “take away the independence of the Judiciary. We want to remain firmly independent and in control of the Judiciary.” Judge Omollo then switched to activist mode as he went on, “Independence will not be given to us, we must take it ourselves.” And like one itching for a fight, “No one will intimidate judges. We will be cowed by nothing, not even you, my Lord. If it is going, we are ready.” I can almost see ‘my lords’ running riot in the streets in defense of judicial independence!

The one argument that has been advanced on their behalf by more sober observers is that ‘the complex tasks that Judges perform’ may not be easy to measure. That the “Judicial function is not reducible to production line mentality or fixed requirements that can be reduced to simple quantitative formulae”. Other than to propagate the Judiciary’s image of being extremely insular, even haughty, this line of argument exposes a profound lack of understanding of the concept of Quality Management. It is a poor defense and suggests that they are unaware of the tremendous advances that have been made in this field, even locally. They only need to open up and be accommodative to find that it is possible to design criteria by which Judicial performance can be evaluated. In any case the entire process is participatory and not imposed from anywhere, least of all from the Prime Minister, of whom they seem to have a pathological dislike.

Their counterparts in Uganda seem to have adopted a more progressive stand with Principal Judge James Ogoola saying that they were “open-minded about the need to introduce performance evaluation standards and would be happy to receive proposals from an expert on how the exercise can be carried out”. He added that “the entire Judiciary has no person familiar with modern management systems to assist in updating its management practices to meet new challenges now facing the administration of justice”. It is such frankness that can better prepare our Judiciary to keep pace with the dynamism of modern day governance structures.

Performance evaluation and contracting are now basic tools for management of the Judiciary in many parts of the world. And with judicial officers involved in setting the criteria for their own appraisal by peers, it is sheer prevarication to argue that performance contracting will interfere with the exercise of judicial discretion. Well defined and publicly known standards and procedures complement, rather than diminish, the notion of judicial independence.

An increasingly active and informed citizenry will continue to demand for reforms that will promote proper administration of justice. This attempt by the Judiciary to use its powers to shield itself from public scrutiny and evaluations of performance is therefore futile. What the supposedly learned fellows should be doing now is exploring the ‘how’. It is no longer a question of ‘if’.