THE Court of Appeal has declined to grant Chishimba Kambwili permission to institute judicial review proceedings to challenge Lusaka Principal Resident Magistrate David Simusamba’s refusal to recuse himself from handling his forgery case and to refer the said matter to the High Court.
In this matter, Kambwili renewed his application before the Court of Appeal for leave to commence judicial review proceedings against Magistrate Simusamba’s refusal to recuse himself from presiding over his forgery case and to refer the matter to the High Court for determination of whether his right to a fair trial had been infringed.
Kambwili cited Attorney General Likando Kalaluka as the respondent in the matter.
But in their majority ruling, Monday, Court of Appeal judges Chalwe Mchenga and Petronela Ngulube declined to grant Kambwili’s application.
Justice Mchenga said Magistrate Simusamba’s decision not to recuse himself could not at this point be the subject of judicial review proceedings.
He said the Judicial (Code of Conduct) Act had provided a grievance procedure, which was reporting him to the Judicial Complaints Authority and that Kambwili had not deployed it.
Justice Mchenga said it was not until the grievance procedure had been exhausted that the possibility of subjecting the decision to judicial review proceedings could be considered.
“We find that since the complaint procedure set out in the Judicial (Code of Conduct) Act for dealing with breaches under that act has not been exhausted, judicial review is not available for the trial Magistrates’ refusal to recuse himself,” the Court said.
He further said Magistrate Simusamba’s decision not to refer the matter to the High Court could not be subject of judicial review because it was not a final decision.
Justice Mchenga added that it was an interlocutory decision, which could be the subject of an appeal at the end of the trial.
“Since we have found that both decisions are amenable to alternative statutory procedures for review, we find that this is not a case in which it is appropriate to grant leave to institute judicial review proceedings. We decline the application and the parties shall bear their respective costs,” the Court ruled.
But in his dissenting ruling, Court of Appeal Judge Mwiinde Siavwapa said he was of the firm view that Kambwili in this case did not have an alternative avenue for the type of reliefs he was seeking before the Lusaka Magistrates’ Court, adding that he would have granted him leave to apply for judicial review.
He said it was his considered view that Magistrate Simusamba ought to have recused himself in view of the gravity of the allegation.
Justice Siavwapa said Kambwili in this case raised the issue of possible personal bias by the learned Magistrate and whether or not the allegation was true should have been left to another tribunal.
The background of this matter is that in 2018, Kambwili was taken to the Lusaka Magistrates’ Court and charged with three counts of forgery, uttering a false document and giving false information to a public officer in relation to the registration of Mwamona Engineering and Technical Services.
But on December 17, 2019, Kambwili wrote to the Chief Justice complaining of the manner in which the presiding Magistrate was handling his case.
Prior to writing the said letter, Kambwili had demanded that the presiding Magistrate recuse himself and had also complained to the Judicial Service Commission on the same issue.
In her response to the complaint, the Chief Justice informed Kambwili, among other things, that the presiding Magistrate had informed her that Kambwili had approached him and offered a bribe for him to pass a favourable decision.
Kambwili then reported Magistrate Simusamba to the Anti-Corruption Commission alleging that it was the presiding Magistrate who had demanded a bribe from him and further took out defamation proceedings in the High Court.
On March 20, 2020, Kambwili again moved the presiding Magistrate to recuse himself from handling the case and transfer the matter to a different Magistrate, but Magistrate Simusamba refused.
Magistrate Simusamba further declined to refer the matter to the High Court for determination of whether his right to a fair trial before an impartial court was being infringed.
Kambwili then approached the High Court seeking leave to apply for judicial review to challenge the said decisions by Magistrate Simusamba, but the High Court declined to grant him the leave sought.
He then renewed the application before the Court of Appeal.
However, the Court of Appeal has equally declined the application.
On October 14, last 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 Kambwili has appealed against his conviction and sentence in the Lusaka High Court.