By Patson Chilemba and Agness Changala-Katongo
The Anti-Corruption Commission (ACC) has launched an inquiry into the matter where NDC leader Chishimba Kambwili has reported magistrate David Simusamba for allegedly attempting to extort him of K360,000 in order to acquit him.
And 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.
The ACC told Daily Revelation that they were looking into Kambwili’s complaint.
“Regarding the matter where National Democratic Congress (NDC) leader Chishimba Kambwili has reported Magistrate David Simusamba for allegedly attempting to extort him of K360,000 in order to acquit him on the forgery case he is facing before him (Magistrate Simusamba), I wish to inform you that the Commission is conducting an enquiry into the matter,” stated ACC public relations manager Timothy Moono.
And Kambwili says he wants a declaration that the decision that magistrate Simusamba’s refusal to recuse himself from presiding over the said case before him, is unlawful and irrational.
In this matter, Kambwili has cited the Attorney General Likando Kalaluka and ex-parte the principle resident magistrate, Simusamba, stating that it has been difficult for his lawyers to perform their duties effectively as the court room was always poisoned with outbursts of anger and threats from the presiding magistrate towards him and his lawyers.
He is seeking an order of prohibition, prohibiting magistrate Simusamba from continuing to preside upon his case and an order directing him to recuse himself forthwith and to surrender the case record to the chief resident magistrate for re-allocation to another magistrate.
The NDC leader is of the view that if leave was 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.
According to an affidavit verifying facts filed in the Lusaka High Court, Kambwili submitted that he was currently facing criminal charges in the Lusaka Magistrates’ Court for the alleged offences of forgery, uttering false document and giving false information to a public officer.
He stated that the said matter was being presided over by magistrate Simusamba.
Kambwili stated that on March 20, this year, he made an application asking magistrate Simusamba to recuse himself by way of notice of motion and its accompanying Affidavit in Support.
He submitted that his application was premised on the fact that on December 17, 2019, he wrote to the Chief Justice complaining of the manner in which magistrate Simusamba was handling the matter. (His attitude towards him and his lawyers and attempts by the magistrate to extort money from him in exchange for an acquittal).
He stated that before responding to him, the Chief Justice asked the presiding magistrate to tell his side of the story.
Kambwili stated that among other things, magistrate Simusamba, in his letter to the Chief Justice, stated that it was in fact Kambwili who had been offering to bribe him from the time the matter was commenced in the year 2018 and that at some point he had offered to buy him a car so as to influence his decision in the matter.
“The presiding magistrate’s accusations came to me with a sense of shock and I commenced an action for defamation in the High Court against the presiding magistrate and this matter is still active. At the same time, I wrote to the Anti-Corruption Commission (ACC) complaining against the presiding magistrate,” Kambwili stated.
He further stated that in his ruling on the application for recusal, magistrate Simusamba acknowledged the existence of his complaint against him to the Chief Justice.
He added that despite having acknowledged the existence of said facts, magistrate Simusamba declined to recuse himself asserting that Kambwili had created circumstances which necessitated the application for recusal.
According to Kambwili, Simusamba ruled that, “therefore, that I could not use the circumstances allegedly created by myself to ask the Honourable Court to recuse itself as the same issues were already before competent authorities,” Kambwili stated.
He stated that in view of magistrate Simusamba’s ruling on his application for recusal, he made an application asking the presiding magistrate to refer the matter to the High Court for determination of whether his Constitutional right to a fair trial before an independent and impartial court was not being infringed.
Kambwili added that in declining the application, the presiding magistrate ruled that there was no Constitutional issue in the proceedings before him.
He further stated that the matter had since proceeded before magistrate Simusamba and that he had forced him to open his defence and start calling witnesses.