A THIRD-YEAR Law student has written to Chief Justice Irene Mambilima over Lusaka Principal Resident Magistrate David Simusamba’s refusal to recuse himself from presiding over a case where NDC leader Chishimba Kambwili is charged with forgery. 

Febian Manda wants Mambilima to intervene in the matter as Kambwili and his lawyers Cheelo Mwiinga and Christopher Mundia have sued magistrate Simusamba in the Lusaka High Court for defamation.

Last week, Magistrate Simusamba refused to recuse himself from presiding over a case where 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.

He also refused to refer the matter to the High Court and Constitutional Court for determination of a constitutional issue.

But in his open letter, Manda cited a case where it was stated that “No man can be an advocate for or against a party in one proceeding, and at the same time sit as a Judge of the party in another proceeding”.

“My name is Febian Miguel Manda a third Year Law Student. Madam, l am writing to you concerning the case of Chishimba Kambwili Vc Chilufya Tayali in which the presiding Magistrate is the Lusaka Principal Resident Magistrate Hon David Sumusamba. Madam, in the case of Metropolitan Properties Co. (F.G.C) LTD V. Lannon (1968) 1 Q.B.559 in this case it was stated that “No man can be an advocate for or against a party in one proceeding, and at the same time sit as a Judge of the party in another proceeding”. Madam kindly come and intervene in this matter. On the other hand Chishimba Kambwili and his lawyers Cheelo Mwiinga and Christopher Mundia have sued Magistrate David Simusamba in the High Court for Defamation,” he stated.

“Moreover, madam Section 23(1) of the High Court Act Chapter 27 of the Laws of Zambia which reads as follows: ” 23(1) Any cause or matter may, at any time or at any stage therefore, and either with or without the application of the parties thereto, be transferred from one judge to another judge by an order of the judge before whom the cause or matter has come or been set down:Provided that no such transfer shall be made without the consent of the judge to whom it is proposed to transfer such cause or matter “.”

Manda noted that a party to an action was entitled to make an application to have their matter transferred to another judge. 

“Further section 6(2)(a) of the Judicial (Code of Conduct) Act No. 13 of 1999 outlines instances which may necessitate the transfer of a cause from one judge to another.” (2)A Judicial officer shall not adjudicate or take part in any consideration or discussion of any proceedings in which the officer is impartiality might reasonably be questioned on the ground that: (a) The officer has a personal bias or prejudice concerning a party or party’s legal practitioners or person knowledge of the facts concerning the proceedings”,”  stated Manda.

“Madam, the above Act is very clear, now the Magistrate has refused to resuse himself even when Article 18(1) of the Bill of Rights and also under Article 118(1) of the Constitution of Zambia, Act no. 2 of 2016 they say justice shall be exercised in a just manner.”