The Role of Performance Management and Measurement Understandings in Enhancing Accountability and Access to Justice Kenya: an Analysis of the Legal Framework Governing Judicial Performance

Abstract

The Kenyan Judiciary’s regime of Performance Management and Measurement Understandings (PMMUs) require courts to strive to achieve expeditious disposal of cases, improve case clearance rates and reduce case backlog. They measure court performance through four indicators; its ability to dispose cases expeditiously, its ability to meet trial and delivery dates with certainty, its case clearance rate and its case backlog. Although it was believed that they would be effective tools of attaining efficacy and judicial accountability, the Judiciary still continues to grapple with performance challenges like case backlog and inordinate delays in determination of cases. The study seeks to investigate why the PMMUs have failed to meet their expectations as tools of enhancing judicial efficacy and accountability. It utilizes qualitative methodology. It also analysis judicial performance evaluation in the USA with a view to identifying lessons and best practices. The study establishes the efficacy of PMMUs in attaining access to justice has been decelerated by legal challenges surrounding their foundation and backing in law. PMMUs do not place direct responsibility on individual judges, do not provide the mechanism for assessing individual judges, and hence cannot be used to achieve individual accountability. In addition, framework on judicial performance does not provide enough sanctions for judicial officers who do not meet their targets under the PMMUs. The JSC lacks legal basis of initiating disciplinary proceedings against a judicial officer who fails to meet the performance indicators and there is no clear demarcation of roles and responsibilities of key stakeholders in their implementation. The study reveals that Kenya has a lot to learn from the US’s experience on judicial evaluation. The USA regime redresses the challenge of case delays by enacting statutes specifically designed to enhance efficacy and clear case backlog. The US regime is designed to promote the quality of the court as a whole and enhance judicial self-improvement for individual judges.