CHISHIMBA Kambwili has applied for leave to commence judicial review proceedings in the Lusaka High Court against Magistrate David Simusamba’s refusal to recuse himself from presiding over a case where the former is charged with forgery, uttering a false document and giving false information to a public officer.
Kambwili, who has cited the Attorney General as respondent and ex-parte the Principle Resident Magistrate, David Simusamba, stated that it has been difficult for his lawyers to perform their duties effectively as the court room is always poisoned with outbursts of anger and threats from the presiding Magistrate towards him and his lawyers.
He now wants a declaration that the decision of the presiding Magistrate to refuse to recuse himself from presiding over the said case before him is unlawful and irrational.
Kambwili also wants an order of prohibition, prohibiting the presiding Magistrate from continuing to preside upon his case and an order of mandamus directing Magistrate Simusamba to recuse himself forthwith and to surrender the case record to the Chief Resident Magistrate for re-allocation to another magistrate.
He wants, if leave is granted, a direction that such grant should operate as a stay of Magistrate Simusamba’s decisions and the proceedings until determination of the application or until the Court orders otherwise.
In his affidavit verifying facts filed in the Lusaka High Court, Wednesday, Kambwili explained that he was currently facing criminal charges in the Lusaka Magistrate Court for the alleged offences of forgery, uttering false documents and giving false information to a public officer.
He added that the said matter was being presided over by Magistrate Simusamba.
Kambwili stated that on March 20, this year, he made an application asking the presiding magistrate to recuse himself by way of Notice of Motion and its accompanying Affidavit in Support.
He stated that his application was premised on the facts that on December 17, 2019, he wrote to the Chief Justice, Irene Mambilima, complaining of the manner in which Magistrate Simusamba was handling the matter, i.e. his attitude towards him and his lawyers and attempts by the Magistrate to extort money from him in exchange for an acquittal.
He stated that before responding to him, the Chief Justice asked the presiding magistrate to tell his side of the story.
“Among other things, the presiding magistrate, in his letter to the Honourable Chief Justice, stated that it was in fact myself, who had been offering to bribe him from the time the matter was commenced in the year, 2018, and that at some point I had offered to buy him a car so as to influence his decision in the matter,” Kambwili stated.
“The presiding magistrate’s accusations came to me with a sense of shock and I commenced an action for defamation in the High Court against the presiding magistrate and this matter is still active. At the same time, I wrote to the Anti-Corruption Commission complaining against the presiding magistrate.”
Kambwili further stated that in his ruling on the application for recusal, Magistrate Simusamba acknowledged the existence of his (Kambwili’s) complaint against him to the Chief Justice.
He added that despite having acknowledged the existence of the said facts, Magistrate Simusamba declined to recuse himself asserting that Kambwili had created circumstances, which necessitated the application for recusal.
“He ruled, therefore, that I could not use the circumstances allegedly created by myself to ask the Honourable Court to recuse itself as the same issues were already before competent authorities,” Kambwili stated.
He stated that in view of Magistrate Simusamba’s ruling on his application for recusal, he (Kambwili) made an application asking the presiding magistrate to refer the matter to the High Court for determination of whether his constitutional right to a fair trial before an independent and impartial court was not being infringed.
Kambwili added that in declining the application, the presiding magistrate ruled that there was no constitutional issue in the proceedings before him.
He further stated that the matter had since proceeded before Magistrate Simusamba and that he had forced him to open his defence and start calling witnesses.
“It has been difficult for my lawyers to perform their duties effectively as the court room is always poisoned with outbursts of anger and threats from the presiding magistrate towards me and my lawyers. That I have been duly advised by my advocates that this is an appropriate matter for this honourable court to exercise its supervisory jurisdiction over the subordinate court by reviewing the said decisions of the presiding magistrate under judicial review,” stated Kambwili.