PRINCIPAL resident magistrate David Simusamba has charged that the attempts by Chishimba Kambwili to have his forgery case transferred to another court as a way of curtailing its progress is a clear indication that the latter does not seek to see his case conclude to its disposal.
Magistrate Simusamba said so when he refused to disqualify himself from handling the matter in which Kambwili is facing charges of forgery, uttering a false document, and giving false information to a public officer.
Kambwili had asked magistrate Simusamba to recuse himself from handling the matter for alleging that he attempted to bribe him.
According to the affidavit in support of notice of motion to have magistrate Simusamba recuse himself from presiding over the matter, Kambwili lamented that he had grave difficulties in defending himself before magistrate Simusamba owing to the allegations he made against him that he tried to bribe him (magistrate Simusamba) by offering to buy him a car since 2018.
Magistrate Simusamba accused Kambwili of offering him a bribe of K360,000 in order to render justice in his favour.
The NDC leader said the allegations made against him by magistrate Simusamba viewed him as a corrupt individual who will go to lengths to defeat the cause of justice to his advantage.
Kambwili said magistrate Simusamba is now a potential witness and complainant in a potential criminal matter against him.
Musa Mwenye on behalf of Kambwili made an application to transfer the matter before another court under section 78 of the criminal procedure code.
He said the accused person is of the view that his rights under article 18 (1) are being infringed, and insisted that the court recuses itself from handling the matter.
In response, State advocate Margaret Chitundu said looking at the affidavit, a number of facts were based on assumptions and the court could not make decisions based on assumptions.
She said the matters which were referred to were civil litigations and had no bearing on the matter before magistrate Simusamba.
Chitundu argued that it will be of grave injustice that every time a litigant asks the court to recuse itself because it has commenced a civil case, which would set a bad precedent.
In his ruling, magistrate Simusamba said he has considered the entire case record with the view to establish the conduct of Kambwili since inception of trial.
He said that he discovered that on several occasions, he had cautioned the conduct of both the accused and his previous lawyers in relation to courtesy not only towards the bench but to members of the bar and other officers of court.
He stated that he had also cautioned the accused and his previous counsel in relation to absconding court sessions with an apparent view to delay the progress of the case.
Magistrate Simusamba noted that the complaint subject to the said motion came immediately after Kambwili was placed on his defence and since that day, it was clear that the NDC leader does not seek to see his case concluded to its disposal by his numerous attempts to either curtail its progression by his attempts to have the case transferred to another magistrate.
He said the grounds on which Kambwili places reliance to have the court recuse itself whether considered in isolation or as a whole cannot form a basis for his (magistrate Simusamba) recusal.
“The accused person cannot create circumstances whose effect is aimed at achieving the results that the trial magistrate recuses itself for whatever reasons and rely upon those circumstances. This would amount to forum shopping which I find here the accused is attempting to do,” he said.
“I, therefore, decline to recuse myself on circumstances created by the accused person and order that we proceed into defence,” ordered magistrate Simusamba.
He said Kambwili had been given enough time to defend or prepare defense.
After the ruling, Mwenye, a former Attorney general, applied that the matter be referred to the High Court and the Constitutional Court for a determination on whether or not a judge or magistrate, who is a potential witness against an accused person in a certain matter can continue presiding over the same matter.
“We would like to raise a constitutional issue under Article 18(1) of the Bill of Rights and Article 118(1) of the Constitution of Zambia Amendment Act no.2 of 2016 with the ruling of the court to deny the accused’s application for transfer of the matter for the reasons in the affidavit. The accused has the right under both the Bill of right and the Constitution to raise this constitutional issue,” Mwenye said.
The provisions of the Constitution indicate that inasmuch as the accused has certain parameters to operate within the court to uphold its decorum, he also has certain rights to demand impartiality from the court.
“We make no assertion that there is an actual lack of impartiality on the part of the court but the court is clear in what impartiality entails,” Mwenye said.
He submitted that the trial court has acknowledged that it is aware of complaints and cases against it by Kambwili, therefore, the constitutional issue which arises is that: can a judge or a trial court who is being sued by an accused person in another court or who is a potential witness and complainant against an accused person in a criminal matter continue presiding over the matter involving the accused?
Mwenye said such was a serious constitutional issues as it goes to the root of justice and the rights of Kambwili to an independent trial court.
“This court is obliged to send the issue to the High Court or the Constitutional Court as the accused’s rights have been or are likely to be contravened. The Constitutional issues raised are grave enough to demand a reference to the High Court and the Constitutional Court for determination of the important issue,” said Mwenye.
In response, Chitundu maintained that there is no reasonable bias or a perception of bias that could arise looking at the fact that the court said it was only acting professional.
She added that referring the matter to the Constitutional Court or the High Court was at the discretion of the court.
In his ruling, magistrate Simusamba said there is no constitutional issue that had arisen to refer the matter to the High Court, therefore the application was frivolous and vexatious and declined to refer the matter.
Earlier, Mwenye equally complained about the eight adjournments at the instance of the court when magistrate Simusamba complained about the conduct of Kambwili and his lawyers.
He said on the eight occasions, Kambwili had been appearing before court but the court has not been sitting.
Magistrate Simusamba commended Mwenye for Kambwili’s conduct since he took over defense as the attendance of the NDC leader had been consistent and rendered an apology for the said adjournments due to the COVID-19 public health measures that needed to be followed.
Kambwili will possibly open his defense on June 11.