LUSAKA Principal Resident Magistrate David Simusamba has set Monday, October 26, for hearing of an application for bail pending appeal by incarcerated NDC leader Chishimba Kambwili, after the latter successfully filed in the documents.
Kambwili has also filed in a notice of appeal against his conviction and sentence, with 11 grounds of appeal, among them that magistrate Simusamba erred in law and fact when he convicted him and imposed what he termed as a punitive sentence, basing his conviction and sentence mainly on his erroneous finding that he (Kambwili) had shown no respect for the honourable court, an issue that was not subject of trial before court.
Earlier, Magistrate Simusamba ruled that he would not entertain Kambwili’s application for bail pending appeal, until such a time that the NDC leader complied with the appeal procedure enshrined in the Criminal Procedure Code (CPC).
He said Kambwili’s notice of appeal which was filed on October 14 was irregular as it was filed into court way before he could finish pronouncing both his judgement and sentence in the matter, contrary to the demands of sections 321 and 323 of the CPC.
He added that Kambwili would continue serving his sentence until further order of the court or completion of the sentence.
On October 14, this year, magistrate Simusamba convicted and sentenced Kambwili to 12 months imprisonment with hard labour on charges of forgery and uttering a false document.
He however, acquitted him on the other charge of giving false information to a public officer.
But on the same October 14, Kambwili filed a notice of appeal against his conviction.
When the matter came up for a ruling yesterday, magistrate Simusamba said Kambwili’s notice of appeal was irregular.
He said the procedure to follow in simple language was that after the court had delivered its last order in the case and adjourned the matter, either party to the case (the convict or the DPP), could file a notice of appeal on any lawful grounds stated under section 321.
Magistrate Simusamba said it was only after a notice of appeal had been successfully filed that section 332 of the penal code (bail pending appeal) could be invoked.
He noted that in Kambwili’s case, the notice of Appeal was clearly filed before he could conclude the delivery of judgement and sentence, a position which was contrary to the demands of section 321 of the CPC.
“Evidence of this fact can be seen in both the grounds of appeal in the notice of appeal and the affidavit in support of summons for admission to bail pending appeal both filed on October 14, 2020. Thus in the grounds of appeal, the convict states at ground six that “more grounds to follow upon perusal of judgement”. Meaning that at the time he was making the grounds of appeal, he had not perused the judgement or he was simply not paying attention when it was being read out to him,” magistrate Simusamba said.
“In addition to that, it is a requirement that the appellant signs the notice of appeal. One wonders at what point he (Kambwili) signed the appeal, for it purports to have been signed by him, when he clearly had no such opportunity as he was listening to his judgement from the dock.”
Magistrate Simusamba said it was more shocking that Kambwili had claimed in his affidavit in support of summons for bail pending appeal that he was convicted on October 12, 2020, when judgement was delivered on October 14.
He added that it was also shocking that Kambwili appealed against his acquittal on the charge of giving false information to a public officer.
“What is even more shocking is the evidence in the affidavit in support of summons for bail pending appeal. In that affidavit at paragraph three, the convict (Kambwili) states “that on October 12, 2020, I was convicted by this honourable court of the offences of forgery; uttering false documents; and giving false information to a public officer. And I’m currently in detention at Lusaka Central correctional facility”. Any person who has been following these proceedings and reading the foregoing would most definitely be gripped with shock,” magistrate Simusamba said.
“Firstly, the date cited in that affidavit is October 12, 2020 which is the date that was initially set for judgement and later postponed to October 14. Secondly and perhaps most shocking is that the convict has appealed against his acquittal on the charge of giving false information to a public officer. Despite having denied the charge at the time he took plea and through out his trial. This is quite unprecedented in my 13 years of experience on the bench and I have equally never come across literature to that effect.”
Magistrate Simusamba added that Kambwili in his affidavit also purported to have been detained at Lusaka Central facility when he was in fact in court on that day and not yet been committed to the said facility.
He said his interpretation of these unusual facts was that the notice of appeal was filed into court way before he could finish pronouncing both his judgement and sentence in the case contrary to the demands of sections 321 and 323 of the CPC and therefore irregular.
“The notice of appeal being irregular I therefore hold here that there was no notice of appeal at all. Consequently, the convict cannot invoke section 332 of the CPC by applying for bail pending appeal without complying with sections 321 and 323 of the CPC. I shall therefore not entertain any application for bail pending appeal until such a time as the appeal procedure enshrined in the said CPC is fully complied with. The convict will continue serving his sentence until further order of court or completion of the sentence,” magistrate Simusamba ruled as he adjourned the matter.
But Kambwili, through his lawyers, has now successfully filed in his summons for admission to bail pending appeal as well as a notice of appeal against his conviction and sentence.
Magistrate Simusamba has since set Monday, October 26, for hearing of Kambwili’s application for bail pending hearing of his appeal to the High Court.
Kambwili’s 11 grounds of appeal are that in view of Article 18 of the Constitution of Zambia; Section 39 of the Anti-Corruption Act No. 3 of 2012; and Sections 3 and 6 of the Judicial (Code of Conduct) Act No. 13 of 1999, magistrate Simusamba erred in law and fact when he declined to recuse himself and proceeded to hear the matter and convict him, notwithstanding the fact that he had accused him (Kambwili) of trying to bribe him and that he (Kambwili) had as a result of the accusation sued him for defamation of character.
That magistrate Simusamba erred in both law and fact when he prematurely curtailed Kambwili’s continued defence of his case and ordered immediate closure of defence notwithstanding that he (Kambwili) had applied to adjourn the matter on the ground that his Counsel was appearing before the Court of Appeal on the same date and at the same time.
That magistrate Simusamba erred in law and fact when he held that Mwamba Chishimba was a fictitious person, notwithstanding the evidence that was placed before court regarding the existence and true identity of the said Mwamba Chishimba.
Kambwili has also argued that magistrate Simusamba erred in both law and fact when he held that by signing Companies Form 71 on behalf of Mwamba Chishimba, he (Kambwili) forged the document.
Other grounds are among others, that magistrate Simusamba gravely misdirected himself both in law and fact when he convicted Kambwili against the weight of the evidence on record, and when he held that Kambwili and some of his lawyers had no respect for the trial court and that he (Kambwili) lied to the court that he had tested positive to COVID-19.
In his affidavit in support of summons for admission to bail pending appeal, Kambwili stated that the offence he was charged with was bailable and hence his application to this court of competent jurisdiction to admit him to bail pending the determination of his appeal.
“That if bail is not granted, I am going to suffer prejudice and injustice as there is a possibility of serving the substantial part of the sentence aforesaid before the appeal is heard thereby rendering my appeal an academic exercise and of no purpose,” he stated.
“I hereby make an undertaking that if bail is granted, I shall abide by and comply with all reasonable bail terms and conditions that this Honourable Court of competent jurisdiction may impose.”
Meanwhile, Police officers who were manning the entrance to the Lusaka Magistrates’ Court complex yesterday apprehended UPND Chikobo ward councillor Regan Mubatsa after he attempted to enter the court premises without clearance.
The armed police officers stopped Mubatsa as he attempted to enter the premises and asked him to show them the court documents which allowed him to be at court.
But Mubatsa failed to produce the documentation, a situation that forced the angry officers to bundle him in a police vehicle and whisked him away to Kabwata Police Station.
ZNBC journalist Katwishi Bwalya, who was live streaming on Facebook, was also queried as some officers grabbed his phone after he was seen capturing events using his phone.
Bwalya was only let go after the officers saw his identification card and after he told them that they were live on Facebook.