LUSAKA Principal Resident Magistrate David Simusamba has refused to recuse himself from presiding over a case where NDC leader Chishimba Kambwili is charged with forgery, uttering a false document and giving false information to a public officer.
Magistrate Simusamba said Kambwili cannot create circumstances whose effect is aimed at him recusing himself for whatever reasons, as it would amount to forum shopping.
The court has also refused to refer the matter to the High Court and Constitutional Court for determination of a constitutional issue after Kambwili’s defence lawyer Musa Mwenye, State Counsel, made the said application.
On November 28, last year, magistrate Simusamba found Kambwili with a case to answer and placed him on his defence, but he has to date not commenced defence.
On March 20, Kambwili through his lawyer, Mwenye, applied that magistrate Simusamba recuse himself from presiding over the matter and transfer the case to another court.
However, magistrate Simusamba was only able to rule on the application yesterday after eight adjournments.
Delivering his ruling on the application, magistrate Simusamba declined to recuse himself and ordered that Kambwili proceeds with his defence.
“The accused person cannot create circumstances whose effect is aimed at achieving the result that the trial magistrate recuses he or herself for whatever reason and rely upon those circumstances. This would amount to forum shopping which I find here the accused is attempting to do. I therefore decline to recuse myself on circumstances created by the accused person and order that we proceed into defence,” magistrate Simusamba said.
Magistrate Simusamba said after considering the entire record of the case, he found that on several occasions, he had cautioned the conduct of both Kambwili and his previous lawyers in relation to courtesy, not only towards the bench, but to members of the bar and other officers of the court.
He noted that he also cautioned Kambwili and his previous counsel in relation to absconding court sittings with an apparent view to delay the progress of the matter.
“I also note that the complaint subject to this said motion came immediately after the accused person was placed on his defence. Since that day, it is clear that the accused does not wish to see his case progress to disposal by his numerous attempts to either curtail its progression or have the case transferred to another magistrate,” magistrate Simusamba said.
He said the grounds on which Kambwili placed reliance to have him recuse himself, whether considered in isolation or as a whole, could not form a basis of his recusal.
After the ruling, Mwenye applied that the matter be referred to the High Court and Constitutional Court for determination of a constitutional issue on whether or not a judge or magistrate who had been sued by an accused person in another court could continue presiding over the matter involving that accused person fairly and impartially.
“We would like to raise a constitutional issue under Article 18(1) of the Bill of Rights and also under Article 118(1) of the Constitution of Zambia, Act no.2 of 2016. With the ruling of the court to deny the accused’s application for transfer of the matter, the accused has the right under both the Bill of Rights and the Constitution to raise this Constitutional issue,” Mwenye said.
Mwenye said the provisions of the Constitution indicated that in as much the accused had certain parameters within which he could operate within the court to uphold its decorum, he also had certain rights to demand impartiality from the court.
He, however, emphasized that he made no assertion that there was an actual lack of impartiality on the part of the court, but added that the law was clear as to what impartiality entailed.
“This court has acknowledged that it is aware of complaints and cases between the presiding court and the accused person before other authorities. The constitutional issue that arises ‘can a judge or a trial court who is being sued by an accused person in another court or who is a potential witness and complainant against an accused person in a criminal matter continue presiding over the matter involving that accused person fairly and impartially?” he asked.
He added that it was a serious constitutional issue as it goes to the root of the dispensation of justice and the rights of accused before an impartial and independent trial court.
Mwenye submitted that the court was obliged to send the issue to the High Court and the Constitutional Court as the accused’s rights had been or were likely to be contravened.
But in his ruling, magistrate Simusamba declined to grant the said application, saying there was no constitutional issue that had arisen which required to be referred to the High Court for determination.
The matter has been adjourned to June 11, this year, for Kambwili’s defence.
In this matter, it is alleged that on October 29, 2013, Kambwili with intent to defraud or deceive, forged a document namely no change return (companies form 71) purporting to show it was genuinely signed by Mwamba Chishimba, his son.
In count two, it is alleged that on October 29, 2013, Kambwili knowingly and fraudulently uttered a false document namely no change return (companies form 71) to an officer at PACRA and in the last count, he gave false information to a public officer.
Kambwili and his lawyers Cheelo Mwiinga and Christopher Mundia have sued magistrate Simusamba in the Lusaka High Court for defamation for alleging that they attempted to bribe him in order to deliver judgment in favour of Kambwili in the forgery case.