JUDICIARY Chief Registrar and director of court operations Charles Kafunda has submitted that Chishimba Kambwili’s application for leave to commence judicial review proceedings against magistrate David Simusamba’s refusal to recuse himself from presiding over his forgery case is not an appropriate matter for the High Court to exercise any of its discretion and jurisdiction to grant him leave.
Kafunda has submitted that this is because Kambwili, who is the NDC leader, has not exhausted all the alternative and administrative remedies.
In this matter, Kambwili has applied for leave to commence judicial review proceedings in the Lusaka High Court against magistrate Simusamba’s refusal to recuse himself from presiding over a case where he 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 principal resident magistrate, David Simusamba, stated that it had 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 counsel.
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 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.
But in an affidavit in opposition to Kambwili’s affidavit verifying facts of notice of application for leave to apply for judicial review, Kafunda stated that this was not a proper forum within which Kambwili’s lawyers could raise complaints about the challenges they allegedly claimed to be facing in defending the interests of their client.
He stated that he was advised by his counsel and verily believed the same to be true that there were no concluded or new complaints, if at all, against Magistrate Simusamba currently subsisting before the Judicial Complaints Commission or the Judicial Service Commission.
“That further and premised on the above, this is not an appropriate matter for this Honorable Court to exercise its discretion and jurisdiction to grant leave to commence judicial review proceedings as the applicant has not exhausted all the alternative and administrative remedies,” Kafunda stated.
In his affidavit verifying facts, Kambwili stated that, “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.”