I am happy to receive today the report on the Performance Management System from the Judiciary’s Strategic Plan Core Team. It has been a long-standing desire of the leadership of the Judiciary even before my appointment as Chief Justice that a performance management system be introduced. The 9th Policy Committee Meeting held in 2021 had resolved that a consultative process among judges of superior courts and magistrates be undertaken to identify performance targets in regard to disposal of cases. The Strategic Plan Core Team, headed by Justice Nigel Mutuna, was thus appointed to spearhead the consultative process which has culminated in the report to be presented today.
In my inaugural address in December last year, I did speak to need for an appraisal system in the following terms:
“Curbing delays in the delivery of judgments may entail reforming our rules so that the prescription of deadlines for hearing and delivering of judgments is also aligned to the Judicial Code of Conduct so that delinquent adjudicators are made to account. Additionally, a performance appraisal system based on the returns and the qualitative presentation of adjudicators’ work will be introduced so that adjudicators consistently performing badly do not escape the notice of supervising officers. “
I must at once dispel any notion that this Performance Management System has been put in place to fix any individual or make our work somewhat difficult and unbearable.
Performance management of courts is not a strange phenomenon. The modern judiciary cannot divorce itself from appraising its members. Proper management of the institution must be supplemented by setting performance targets.
The presentation of the report today is thus a milestone. That performance management system is now here and it is here to stay.
My Lords and My Ladies, I am alive to the fact that the Performance Management System has come at a time when measuring judicial performance is a burning topic in many jurisdictions around the globe. How to balance the need for timely case resolution with the need for just results is a question many court experts have often pondered.
The debate surrounding performance of adjudicators has always been a thorny one. My view is that it need not necessarily be. Judicial performance evaluation has been considered as a way of bridging the tension and contestations on the extent to which the judiciary is insulated against scrutiny and interference from other arms of government. The acceptance of judicial evaluation, at least in the context of performance management, within the justice systems signals the judiciary’s approval towards cooperation and coordination with sister arms of government as well as other private and public interests. In fact, the concept of judicial performance rests on the broad ideas of accountability, transparency and effectiveness.
It has been argued, in some circles, that assessment of performance of adjudicators undermines their independence. We must ask again whether the protection of the independence of adjudicators should really keep us away from the subject of performance management. I think not. This is because judicial independence simply means, the individual adjudicator’s liberty to make decisions free from directives and influences from anyone else and extends to the Judiciary’s institutional freedom from any interference in its work from the other organs of government. Judicial Independence does not override the imperative of accountability to the owners of judicial authority – the people of Zambia.
Performance measurement for judicial officers ought to be a careful balance of competing constitutional demands, especially the principle of judicial independence and the principle of judicial accountability. In particular, the evaluation should be a product of balancing the duty to inform policymakers and the public versus professional autonomy and judicial independence.
Scholars have cautioned that a judiciary that places high premiums on its independence at the expense of its accountability exposes itself to the risks of over-insulation from public scrutiny. This essentially renders the judiciary irresponsive to legitimate societal demands and it will have no incentives to improve its performance because it cannot tackle criticism.
Therefore, judges and adjudicators must not be afraid to be accountable for the work they are delivering. Someway or somehow, the performance of adjudicators and support staff must be evaluated, because courts are financed by public means and play an important role in the protection of the rule of law in this country and the day-today life of citizens, businesses and companies.
We cannot but accept that attention to results of court activities is more than just a polite gesture to the outside world. For our courts, failure to highlight performance goals and measure them undermines the judiciary’s proclaimed ability and need to govern its own affairs including in this regard the much-desired financial autonomy.
There are several cogent reasons for us to embrace a performance management system like the one we have set up now. They include, first the fact that public perceptions and beliefs about how work is getting done by the court and its staff are not always accurate. As a result, positive, real and personal accounts of useful interactions with our courts are often dismissed by court critics who interpret the behaviour and record of the courts in terms of their own personal and perhaps negative experiences. In contrast to endless debate over conflicting perceptions, performance data provides observers and insiders with evidence against which to test the reality of assumptions relating to the performance of the courts. Performance evaluations reveal whether what we think is going on is in fact taking place.
Second, performance assessment helps in identifying and focusing on areas of greatest importance to a broad and diverse audience. Multiple indicators permit courts to respond to the varied concerns of constituents, including litigants, lawyers, witnesses, the public, and funding authorities and institutions.
Third, to the extent that clarity on desired outcomes is engendered by performance management, it allows greater creativity among court staff. When we are able to state explicitly what matters most, court staff become more easily engaged in determining how to make it happen. This is done by standardizing the ends rather than dictating the means to achieve them.
In a nutshell, some have seen the rationale for adopting judicial performance evaluation as three-fold; to address public confidence crisis, to stop wasteful use of public resources and to improve efficacy of the court systems and processes.
And lest you assume that what we are introducing is a strange phenomenon unknown in other jurisdictions, let me state that Judicial administrations the world over including Kenya, Zimbabwe, Austria, Germany, the Netherlands and Norway have developed and standardised their court performance frameworks together with their governance practices covering the aspects of time, cost efficiency, and quality. These standardised court performance frameworks and governance practices are used not only to describe symptoms (such as court-case processing delays) but also to perform diagnostics allowing for a critical assessment of court performance.
This enables judiciaries to transition from applying an experience-based management or “gut feeling” management (which sometimes conceals vices such as corruption) to a transparent “scientific evidence” approach in managing court operations that eliminates unjustified excuses for requesting additional resources to deliver court services to our people. The system also assists in identifying courts that really need help in handling their workload. Ultimately, the noble goal to be achieved through performance management is the attainment of tangible and high-quality results from limited resources.
Recently, I set up various new advisory committees one of which is the Advisory Committee on Performance Management. This Committee will work hand-in-glove with the performance management department. I must remind those in charge of driving this system, at policy and implementation level, that as we move the system, we must ensure that at each evaluation of judges and courts a balance should be realized between ‘efficiency’ and ‘quality’.
As I conclude, let me point out that considering the magnitude of expected change that is being implemented throughout various sectors in the country, judicial reform faces imminent risk of failure, unless a performance management system, such as the one we have set up now, is in place. Of course, the judiciary cannot shoulder the burden of judicial reform alone, but at the very least we must play our part.
In a democratic society like ours, effective courts are operating according to the standards of efficiency and effectiveness of judicial procedures, quality of court services and expectations of court users. In that sense, court performance evaluation is the most effective when it is based on the established standards of quality and approved methods of evaluating the conformity of courts to these standards.
I believe this report is a step in the right direction with regard to proper performance management in the judiciary. The Judiciary Strategic Plan Core Team, with the support of the Management Development Division of Cabinet Office, have done great work in coming up with this report after touring most parts of our country to obtain consensus on performance targets and the operations of the Performance Management System.
I THANK YOU.