Principal Resident Magistrate David Simusamba has set today, March 23, 2020, as the date for ruling in a matter in which NDC leader Chishimba Kambwili has asked him to recuse himself from a matter in which he is charged with forgery, uttering a false document and giving false information to a public officer in relation to the registration of Mwamona Engineering and Technical Services.
This is a matter in which Kambwili, in count one, is charged with forgery.
It is alleged that on October 29, 2013, with intent to defraud or deceive, Kambwili forged a document namely No Change Return (companies form 71) purporting to show it was genuinely signed by Mwamba Chishimba, his son.
In the second count, it is alleged that on October 29, 2013, Kambwili, knowingly and fraudulently did utter a false document namely No Change Return (companies form 71) to an officer at PACRA
In the last count, Kambwili, on the same date, is alleged to have, knowingly and fraudulently, given false information to a public officer.
Magistrate Simusamba put Kambwili on his defence after he was found with a case to answer, but the accused has not commenced his defence since December 4, 2019, leading to several adjournments in the matter.
This forced Magistrate Simusamba to warn that he would take appropriate action if the accused did not commence defence by Friday, March 20, 2020.
When the matter came up before Magistrate Simusamba, Kambwili, through his lawyer Musa Mwenye State Counsel, applied to have the case transferred under section 78 of Criminal Procedure Code Chapter 88 of Laws of Zambia and sections 5 (1) and 6(2) (a) of the Judicial Code of Conduct No 13 of 1999, adding that it was supported by an affidavit in support of notice of motion.
Despite the state being ready to proceed with the opening of defence, Mwenye said there was an appreciable risk that the rights of his client under Article 18 will be breached.
But the state, through deputy chief State advocate Margaret Chitundu, objected that a number of facts in the affidavit were based on assumptions and that the action that was commenced in the High Court by Kambwili was a civil application with no bearing on a criminal matter.
“Your honour, we will be engraving justice if every time, a litigant chooses to bring an action against a court and uses that application to ask the court to recuse itself. It will be very bad precedent set because any litigant will go and bring an action,” Chitundu said.
She wondered how moving the matter to another court would serve the interest of justice, adding that asking the court to recuse itself because the applicant brought a civil action will be prejudicial and not in the interest of justice.
Chitundu further said moving the case will be a grave injustice to the State and the people as the State will not manage to bring back all the witnesses and asked that the case be brought to its logical conclusion, considering how far it has come.
In response to the objection, Mwenye said he was not aware of any rights that the State had with regard to fair trials in a criminal matter.
He said magistrate Simusamba alleged that the accused person had consistently offered him a bribe since 2018 and they are of the opinion that the statement places him as a potential witness or complainant in a potential criminal matter.
“The application for transfer is about propriety of the court, we apply that this court exercises its conscious in granting the application. Although we sympathise with the State, they have all the machinery to bring witnesses who are officers of the State,” said Mwenye
Magistrate Simusamba has since reserved ruling to today.
Kambwili, in an affidavit in support of notice of motion for recusal, stated that he had grave difficulties in defending himself before magistrate Simusamba because of the allegations made against him, verily believing that the presiding magistrate is now a potential witness or complainant in a potential criminal matter against him.
“In the same light, I am a complainant in a complaint against the presiding magistrate and therefore a potential witness against the honourable presiding magistrate in potential criminal proceedings,” stated Kambwili.
“I verily believe that the aforesaid allegation against me by the court shows that the honourable court views me as a corrupt individual who will go at length to defeat the course of justice to my advantage.”