JUDGES SHOULD SIGN PERFORMANCE CONTRACTS

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 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 which is 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.

MANAGEMENT OF EDUCATION IN KENYA: MINISTRY OF EDUCATION HAS FAILED.

The recent violent strikes in public secondary schools have brought into sharp focus the role of the Ministry of Education in the management of the public education system in Kenya.

Management is the art of getting people together to accomplish desired goals through planning, organizing, sourcing, leading or directing, and controlling an organization or effort for the purpose of accomplishing a goal. Education Management focuses attention on strategies for keeping education resources current, up to date, and accessible. It is ensuring that people have the most recent and suitable education to do their work.

The Education Act, 1968 defines a manager as any person or body of persons responsible for the management and conduct of a school, and includes a Board. The Act, read together with the Teachers Service Commission Act, Cap. 212, confers extensive powers on the Minister of Education over the management and regulation of education in Kenya. The two acts give the minister extensive latitude to delegate his powers to local authorities, District Education Boards or Boards of Governors.

Tertiary institutions and public secondary schools are administered by Boards of Governors appointed by the Minister whereas Primary schools are managed by School Committees appointed by local authorities. The boards and committees are responsible for the hire and remuneration of support and subordinate staff in public schools. The boards also act as the custodians and trustees of the movable and immovable property of their respective schools. The principals and headmasters of these institutions serve as the secretaries and executive officers to the boards of governors or school committees as the case may be.

The Public Procurement and Disposal Act, 2005 has granted teachers the power to control the tendering and procurement process in public schools. The Teachers Service Commission Act allows the Teachers Service Commission to delegate its powers relating to the hiring, control and discipline of teachers to Boards of Governors inter alia. The disbursement and utilisation of government funds under the Free Primary Education (FPE) and Free Secondary Education (FSE) programmes is subject to the provisions of the Government Financial Management Act, 2004. The boards of governors are mandated by the Education Act to audit and regulate expenditure by the administration to ensure that all the income received by the school is applied for the promotion of the objects of the school. These statutes presume that members of the Boards of Governors and teachers are knowledgeable in Law, Human Resources Management, Supply Chain Management, Accounting and Project management. That is where the main problem in the management in public schools lies.

The Ministry of Education continues to employ archaic techniques in the administration of education institutions. The tools for the management and evaluation of public education institutions have remained static for a long time despite the rapid technological, socio-cultural and economic changes in the country. Management organs such as Boards of Governors are constituted so as to include representatives of the communities served by the school, persons representing any voluntary body which was the founder of the school or its successor, and any other persons or representatives of bodies or organizations that, in the opinion of the Minister, should be included. There is no set criteria enumerating the skills a person should possess to qualify for appointment into a board. Service in School Boards is not remunerated and consequently most professionals opt to stay away from it. The result is that most public schools are managed by old and unenergetic retirees, semi-literate businesspeople or other semi-skilled non-professionals. This has created a managerial gap in most public schools in rural Kenya. The old managers cannot cope up with the rapid social, technological, economic and cultural changes in our country. The managers are more often than not erudite in elementary law and cannot readily grasp the provisions of the Education Act or the basic concepts in management of public finance, human resource management and organizational management. The Education Act is also inexplicably lenient on imprudent school boards. Suspension and forced resignation are the only penalties the minister can impose on an errant board.

School boards composed of members who do not possess managerial skills; expertise and experience are a major source of discontent among students and parents. Parents typically oppose a school administration if they perceive it to be incompetent, opaque or unaccountable. Students on the other hand engage in insidious conduct to protest against such managers. Initially it was possible to “cover-up” such managerial ineptitudes through authoritarian leadership. Before the enactment of the Children’s Act, 2001, school heads would use actual or threats of corporal punishment to forestall complaints from students. This explains why the protests have become more pronounced and dangerous since the use of corporal punishment in schools was abolished and replaced with guidance and counselling.

Apart from appointing representatives to the board, religious organisations which sponsored or founded most public schools in Kenya, play a peripheral role in managing the schools. They should get more involved since they can play a complimentary role in guiding and counselling adolescent students. Religious leaders exercise both temporal and spiritual authority and can exert moral pressure on delinquent students to infuse behavioural change.

Whereas parents are very quick to blame the school administration when things go wrong in a school, they also shy away from making a conscious effort and practical contribution to the management of the institutions. They are content to play the perfunctory roles of paying school fees, electing Parents Teachers Association (PTA) representatives and attending annual general meetings once a year. Parents should get actively involved and support the school administration in matters of enforcing discipline

There is a dire need to change the training curriculum for teachers to include new subjects which will equip teachers with elementary working knowledge in Accounting, Planning, Financial Management and Project Management. The Ministry of Education should also develop a criterion for the appointment of members of boards of governors and create a common Project Monitoring and Evaluation Tool for managers of public schools. It is important for the government, parents, school managers and educationists to review the current system of managing public institutions to attract more professionals and allow full and equitable participation by all the stakeholders.

Twitter: @DeCaptainCFE

AN OPEN LETTER TO HON. MARTHA WANGARI KARUA, EGH, M.P.

My heroine, the indefatigable Minister for Justice, Constitutional Affairs and National Cohesion, Hon. Martha Wangari Karua wants to be president and Commander-in-Chief of the Armed Forces of the Republic of Kenya. Is hers a serious bid for the presidency or just another gush of hot air? I am unable to refrain from offering her my 50 cent worth of advice because I fear to mourn the loss of a promising political leader.

Waziri, you have an inalienable democratic right to aspire and vie for any public office in Kenya. Having represented the people of Gichugu in parliament for the last 16 years and held high profile jobs in the government and political parties, you have the right credentials to aspire to the position of Commander-in Chief. As the current chairperson of NARC-Kenya, you have a head start as the primus-inter-pares among the leaders aspiring to inherit President Mwai Kibaki’s perceived political mantle in the PNU coalition.

Defying State House on the subject of dissolving PNU constituent parties has bolstered and reaffirmed your image and characteristic aura of political independence. You should completely ignore President Kibaki on this matter and pay little attention to the busy bodies in PNU. The president is not a political animal and is unlikely to play any major role in the 2012 elections. President Kibaki is not and has never been a serious political party ideologue or mobiliser. You and his other friends hurriedly cobbled up PNU just to save him from being party-less in September last year. It is his disdain for party politics that led to the collapse of the original NARC, rendered his DP a moribund outfit and created the House of Babel that is PNU. Not even the president’s sudden interest in and ascension to the leadership of PNU can salvage the coalition. The president has no vehicle for political mobilisation or a grassroots machinery of his own; and hence no political fortune or mantle to bequeath to anybody. If anything, the entire Mt. Kenya region is littered with political orphans of his former parties with no evident possible heir of note in sight. Politicians who are hinging their survival on President Kibaki after 2012 are simply suffering a bout of collective amnesia and busy writing their political epitaphs.

Waziri, charity (even in politics) begins at home. Avoid attacking the Deputy Premier Hon. Uhuru Muigai Kenyatta and Security Minister, Hon George Muthengi Saitoti. Doing so does not endear you to a lot of people in southern Kikuyu land. If anything your thinly veiled attacks against the duo is slowly rekindling the old wounds and fault lines (the fabled Chania River divide) between the north and southern Kikuyu. Take this matter seriously since you do not have any serious cheer-leaders outside Kirinyaga District and as we speak, NARC- Kenya has lost the support of most sitting MPs in the larger Nyeri, Laikipia and Nyandarua Districts. Your only saving grace here is that your defiance against the president and the “big-moneyed elitist minority” wheeler dealers resonates well with the majority of the young people in Mt. Kenya region who are tired of the old order and the current status quo. Get a young energetic party ideologue to harness the political support of the youth and you will pull the rug under your detractors in Central Kenya.

Outside Central Kenya, some people view you as a rouble rousing, inveterate kikuyu chauvinist. You need to re-brand and modify this image through your most visible allies Hon. MPs Dr. Mohamed Kuti, Danson Buya Mungatana (my former college mate), Katoo Ole Metito, Asman Kamama Abongotum and Robinson Njeru Githae. Spend much more time creating grassroots machinery for NARC-Kenya. The party needs serious, credible, and clearly visible grounds-men. You need to organise and open well managed party branches in every constituency to create alternative centres of power, disorganise and scatter sitting MPs and set a foothold in every corner of Kenya.

Whereas you have impeccable credentials in the fight for democracy, civil and political liberties, you have not championed the fight for social, economic and judicial reforms in similar fashion. Poor and unrepresented litigants rarely access substantive justice in Kenya while the rich and powerful easily get reprieve from the courts. Judicial officers often refuse to see “real justice” through the miasma of primordial technicalities of procedure which the rich readily exploit. Our criminal justice system now seems to be a haven for criminals who get cleared after committing serious crimes such as murder, rape and robbery with violence. We have not heard your voice on the issue of murder suspects walking scot-free due to procedural technicalities. You must radically reform this system that only seems to perceive “justice” through the lenses of the villains and not the victims. You understand the quid pro quo doctrine well and four years is a long time; stand for the majority.

Waziri, use the constitutional reform and the gender equity agenda to your advantage. Nothing would endear you more to Kenyans than the attainment of genuine constitutional and legal reforms under your watch. Women constitute 52% of the productive population in Kenya but have been disfranchised from full participation in the political, social and economic development due to historical disadvantages. After close to 5 (five) decades of misrule by lethargic and corrupt male dominated regimes that have entrenched poverty, social and gender inequity, it will be not difficult to package and sell the idea of a principled, untainted, compassionate, and trustworthy woman leader to Kenyans.