LUSAKA High Court judge Mwila Chitabo has dismissed NDC leader 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.

Judge Chitabo said the ruling of magistrate Simusamba pertaining to the refusal to recuse himself was made within the magistrate’s judicial powers and discretion, adding that a challenge of such a decision is by way of appeal against the said ruling.

He added that this was, therefore, not a fit and proper case to grant Kambwili leave to commence judicial review proceedings.

In this matter, Kambwili had 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 (Kambwili) is charged with forgery, uttering a false document and giving false information to a public officer before the Lusaka Magistrates’ Court.

He also wanted to challenge magistrate Simusamba’s decision to decline to refer the said forgery case to the High Court for constitutional determination of whether Kambwili’s right to a fair hearing before an independent and impartial tribunal has been or is likely to be infringed by the magistrate’s refusal to recuse himself.

Kambwili, who cited the Attorney General as respondent and ex-parte the principal resident magistrate, David Simusamba, wanted a declaration that magistrate Simusamba’s decision to refuse to recuse himself from presiding over the said case before him and to refer the matter to the High Court, was unlawful and irrational.

He also wanted, among others, 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.

Kambwili stated that it had been difficult for his lawyers to perform their duties effectively as the courtroom was always poisoned with outbursts of anger and threats from the presiding magistrate towards him and his lawyers.

But Judiciary Chief Registrar and director of court operations Charles Kafunda submitted that Kambwili’s application for leave to commence judicial review proceedings against magistrate Simusamba’s decisions was not an appropriate matter for the High Court to exercise any of its discretion and jurisdiction to grant him leave.

He argued that this was because Kambwili had not exhausted all the alternative and administrative remedies.

And in his ruling, Justice Chitabo said the decisions in issue should have been appealed against, and were not amenable to judicial review as reviewing them would entail delving into the merits of the case.

He, therefore, dismissed Kambwili’s application, saying this was not a fit and proper case to grant him leave to commence judicial review proceedings.

“It is clear that the exercise [of] a court’s discretion can be challenged on appeal by an Appellate Court. I therefore hold the firm view that the two decisions in issue should have been appealed against and are not amenable to judicial review because reviewing the decisions will entail delving into the merits of the case. I agree that the alternative remedies available to the applicant (Kambwili) is to appeal against the two decisions exercised with the Presiding Magistrate’s discretion to the superior Court to determine the judiciousness of the exercise of such discretion,” said judge Chitabo.

“I therefore find that this is not a fit and proper case to grant leave to commence Judicial review proceedings. I accordingly dismiss the application for leave to commence Judicial Review proceedings. As regards costs, the applicant raised constitutional issues of public interest. The justice of the case is that I make no order as to costs. Put differently, each party is to bear its own costs.”