HUMAN RESOURCE MANAGEMENT

Introduction
If I am to go by the phrase that “Employment has changed from normal contract of employment to performance contract of employment,” then I would content that the world and Kenya in particular is undergoing a series of revolutions in its system of administration owing to the fact that just some two months ago the judges were and are still debating whether they should or not sign performance contracts. My paper will basically deal with the reasons why performance contracts are of great needs highlighting some of the reasons why not only judges but any employee should sign this types of contracts. Bearing in mind the recent resistances in signing of performance contracts by judges I will further explore this notion and show why performance contracts should be introduced in the judicial sector because as the Oxford dictionary contents them to be tools which will help in measuring the judges output both qualitatively and quantitatively.

Basis of Performance contracts/ Definition of terms
Much debate has been in existence about the goodness and badness of performance contract as many employees are not for the idea of signing the performance contracts but to start my argument I would like first to explore what really a contract is. According to Oxford English dictionary a contract is said to be an agreement between two or more parties for doing or not doing something. Contracts can come in many forms; they can be oral or written, implied or expressed, and legally enforceable or not. The strongest contract, in terms of enforceability, has an offer, acceptance, consideration for the exchange clearly sets out the terms of the agreement without ambiguity, and is signed by the parties involved with proper capacity to enter into the contract. Verbal agreements or contracts drawn up by parties in direct violation of state or federal laws are said to be Weaker contracts (Mathias and Jackson, 2000).
According to the website http://www.wisegeek.com/what-is-a-contract.htm the most common type of contract is actually an oral contract. In fact, we pretty much enter into at least one or more oral contracts every day. For example, a lecturer might tell his or her students that they will get rewards if they behave properly at a certain event organized in the campus. If the students agree, then this becomes a type of oral contract that isn't legally binding. Contracts can be implied or express. That is, the entire contract, or one or more of its terms, can be implied or expressed. Typically, when we think of contracts we think of express contracts. For example, in a contract for a monetary loan, you will likely promise to pay a certain monthly rate at a certain interest rate until the loan is paid off. In addition, you probably will agree to late payment fees as well.
Armstrong, 2001 says that a performance contract is a written agreement between an employer and an employee stipulating what should be achieved while Armstrong and Boron, 1995 claims that performance contract aims at improving the performance of the people working in an organization by developing their capabilities. Sometimes, however, a performance contract term or the entire contract itself is implied. For example, when you order food at a restaurant you are entering into an implied, oral contract. The basic elements of a contract are said to be; an offer, acceptance of the offer, and consideration for the exchange. Offer and acceptance, sometimes also called “meeting of the minds” and it is a fundamental part to a contract. Without it, we might bind people to get into contracts that they did not want or intend to be party to the contract.
Our recent Daily Nation newspaper dated 15th July featured an article on contracts as the debate of the judges story was hot and the article contend that contracts may be enforceable by law or they may not. Quoting a relevant example of the agreement between the lecturer and the students would not be enforceable by law whereas the agreement for a loan likely would be enforceable by law. Therefore whether a contract is enforceable by law depends on number of factors, the key factor being whether the parties to contract intended the contract to be legally binding or legally enforceable.
On the other a contract may not be legally enforceable for a variety of factors; Problems on the face of the contract can make it void. If one of the parties to the contract has low capacity in meeting the contracts demands whether due to age or mental condition the contract will most likely be unenforceable. Fraud, alteration or misrepresentation by a party to a contract can make it null and void.
Why judges should say performance contracts
In reference to a daily nation of Tuesday September 16, 2008, it was reported that Mr. Justice Gicheru the chief justice had declared that judges would not sign the performance contracts unless the Constitution was amended to conform to their terms and conditions of service while on the same column of the daily nation the Kenyan Justice, National Cohesion and Constitutional Affairs minister Martha Karua, however, maintained that the judges must sign the contracts as the Judiciary’s performance had to be measured. She argued that Judiciary must be innovative and develop a model suitable for its operations, instead of waiting for constitutional changes.
Meanwhile on another daily nation of Thursday September 18, 2008 it seemed that Judges developed and adopted a softer stance on the signing of performance contracts but they asserted that the signing should not affect their independence. Chief Justice Evan Gicheru on Thursday claimed that judges were not opposed to the measurement of judicial output by signing performance contracts, but was on the stand that signing of the performance contracts should not erode the independence of the Judiciary functioning and systems. Quoted by the nation media group “Nobody is against the idea, but we have to be consulted on how such parameters can be introduced,” he said. Gicheru also went ahead to say, “We have our own way of measuring performance and if it is in agreement with other performance contracts instituted by the Executive, we will go along with them.’’
According to the chief justice its seen that the signing of the performance contracts is no threat since they have been evaluating their performance in accordance to their job but it seems on the centrally that if the policies in the performance contract will be not agree with their own evaluation measure then they will have to take a constitutional step. The chief justice also said, “I do agree heartedly with the signing of the contracts but since this is a judicial body their has to be a section in our constitution allowing the actions too” We are an office appointed under the Constitution and if the Executive does not agree with our terms, then we shall have to abide by the Constitution.”
Philip Mwakio and Beauttah Omanga in a Kenyan Standard newspaper of Thursday, 18th September 2008 quoted the Acting Finance Minister John Michuki voice to the simmering row pitting Judiciary against Executive over performance contracts for judges. Michuki said judges should sign the documents, insisting they were not an exception. “So long as judges and the Judiciary draw their salaries from tax payers’ money, they ought to be included in performance contracts,’’ he said.
MP Paul Muite and the Law Society of Kenya urged the Prime Minister to lead Parliament to amend the Constitution to make judges more accountable. Muite went ahead to claim that although there was need to make judges deliver, contracts alone would not succeed. He suggested that a retired judge be mandated to vet the performance of judges. “Forcing the judges to sign performance contracts will amount to merely treating syndromes. The main problem is how those judges are appointed,” said Muite. On the other hand Justice Minister Martha Karua insisted that the contracts would not interfere with their independence, the Chief Justice maintained that they would not accept any unconstitutional interference. Speaking during the official opening of the Kenya Judiciary Training Institute Ms Karua pointed out that the contracts had been successful in other countries.
Advantages of performance contracts
The use of Performance Contracts has been claimed to be an effective and promising means of improving the performance of public enterprises, on governmental organization companies as well as government departments. Performance Contract is an agreement between an employee and an employer either a government, a company or an organization which establishes general goals for the employees, sets targets for measuring performance and provides incentives for achieving these targets. The success of performance Contracts in countries like France, Pakistan, South Korea, Malaysia and India has sparked a great deal of interest in this policy around the world. A large number of governments and international organizations are currently implementing policies using this method to improve the performance of employee and public enterprises in their countries. Nyambegera, 2005 argues that performance Contracts represent a state tool for improving public sector performance. They are now considered an essential tool for enhancing good governance and accountability for results in the public sector through enforcement to the employee’s to sign them but in Kenya it’s taking another dimension where the judges have been on the front line to disguise the idea of signing performance contracts.
According to Mathias and Jackson, 2000 I believe in improving the performance of these civil servants performance contract will be a key tool so they should not be against signing this contract. Signing performance contract will increase the efficiency of the service delivery and reduce further drain on the country’s treasury resulting from their losses. An uncompromising performance contract exercise give a clear picture of the costs and benefits associated with companies or government sectors of which the employer belong to. Similarly, the Performance Contracts with government departments ensure improvement of delivery of public services and effectiveness of government machinery. Many countries have had success in improving the performance of their own public sector by designing Performance Contracts after carefully examining and adapting to their particular needs...

Key Benefits of a Performance Contract
Making reference to an article dated October 30th, 2008 in Africa News. 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.
As it stands now, the public do not know the time frame by which to expect judgment 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 public the high costs of such long periods.
In my opinion, time frame for which a case should be determined facilitate four things, first by signing the performance contracts judges will reduce the kind of congestion that we currently have at the Judiciary, make the cost of Justice affordable, make litigants know when to expect Judgment in any given case filed and more effectiveness of lawyers will be seen.
Time frame which according to Armstrong, 2006 is necessary in performance management and will help 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. 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.
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.
Desler,2003 points outs clearly that commitment of employee as if they own the organization they work for helps improve the organizations output and as the owner of an organizations is eager to know what his money is making then the public as the tax payer need 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 and the time taken for the specific cases to be done with.
Disadvantages of signing performance contracts
Basing my argument on a text of report by Jibril Adan and Martin Mutua entitled "Judges defy Prime Minister" published by Kenyan privately-owned newspaper Daily Nation website on 20 August; shows that Judges have rejected a proposal by Prime Minister Raila Odinga to introduce performance contracts, saying it would reduce the independence of the judiciary as guaranteed by the constitution. I tend to agree with the judges and point out that if the judges have to sign the contracts then the constitutional reforms must come before they sign in order to make it a law of the country since judiciary its been an in depended body as I second the chief justices words “we hold constitutional offices and until the law is amended, performance contracts for judges would be illegal," Though Justice and Constitutional Affairs Minister Martha Karua, says : "It is time for reforms and when the prime minister calls for reforms, they must come." .Recommendations
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 working day and night 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 conmen make merry all day long?
It is my considered view that something is not adding up at the Judiciary. Judges drone as they pass judgment 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?
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 the review is appropriate punishment to the Judges who miscarry justice to the clients. They must be made to meet the full gravity of the law and pay the person whom they caused delayed justice. His act could have been intentional at the time, or for short term gains. Letting him free is not the best way out because it would encourages other Judges to similarly abort justice to many other suspects.
In conclusion I still hold to my stern position that judges should sign the performance contracts to make Kenya a country with equality where every citizen will feel the worthiness of the tax he/she pays to the government.

Reference
Armstrong, M. (2006). A handbook of Human Resource Management Practice. Kogan Publishers; London.
Nyambegera, S. (2005). Human resource Management a biblical Perspective. Uzima publishing House, Nairobi, Kenya
Mathias, R., and Jackson, J. (2000).Human resource management. South western college publishing House, Ohio, USA
BBC Monitoring Africa. (2008, August 20, September 23) Judges should sign performance contracts
Daily Nation. (2008, July 15).debate on judges signing of performance contract gets hot. Daily nation paper.
The standard. (2008, September 18) judges should sign performance contracts.
http://www.chevronenergy.com/performance_contracts/
http://www.bide.com/Workshop%20II/Workshop2-04.html

http://www.wisegeek.com/what-is-a-contract.htm
NICKY BITA