GEARS Initiative Zambia Executive Director McDonald Chipenzi call on Chief Justice Irene Mambilima’s intervention on the drama between Dr. Chishimba Kambwili and Magistrate David Simusamba

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By McDonald Chipenzi
Executive Director
GEARS Initiative Zambia

 

A CALL ON CHIEF JUSTICE’S INTERVENTION ON THE DRAMA BETWEEN HON KAMBWILI AND MAG. SIMUSAMBA.

Friday 5th June 2020

We found it extremely strange at the refusal by Magistrate David Simusamba to recuse himself from a case involving the National Democratic Congress (NDC) leader Chishimba Kambwili in which he is the presiding magistrate.

The failure by Mag. Simusamba to recuse himself, especially that the relationship between him and Hon. Kambwili has been hostile, threatens the cause of natural justice.

Hon Kambwili is not refusing to be tried or is he asking for his case to be squashed off the list or for linience or clemency but his plea is that an independent and impartial magistrate he has no issues with preside over his case.

To demonstrate this, Hon Kambwili has been appearing before other magistrates in his many other cases before the courts but has not, at any single day, demanded a recusal from any of the presiding magistrates in those cases.

It is for this reason that the issue of Mag. Simusamba and Hon Kambwili must be given the deserving attention from the head of the judiciary, the Chief Justice, Justice Irene Chirwa Mambilima.

If justice is not done, it must be seen to be done. In this case, Hon Kambwili may doubt the outcome of this case if it proceeded in this dramatic way especially if it goes against him due to the shadow boxing between him and the presiding magistrate.

We also found it interesting how Mag. SIMUSIMBA refused to refer constitutional matters raised by Hon Kambwili by granting an application to Hon. Kambwili to refer the matter to the High Court for determination of constitutional matters raised by the accused.

Mag. Simusamba’s action and conduct is contrary to the provisions of Article 128 (2) of the Republican Constitution which states: “…where a question relating to this Constitution arises in a court, the person presiding in that court shall refer the question to the Constitution Court”, end of quote.

We find it very unfair and a possible breach of the Constitution for Mag. Simusamba to refuse to refer the Constitution matter raised by Hon Kambwili to the Constitutional Court as instructed by the law.

His role as presiding Magistrate ended at hearing the constitutional question raised by the accused and his action as Magistrate end at referring the Constitutional question to the relevant courts rather than him assuming the role and duty of the Constitutional Court judges whether or not the issues raised by Hon. KAMBWILI were constitutional.

We find Mag. Simusamba’s action and conduct on this one very bizzaire and an affront to the Constitution and also raises issues of concern as to why he has found it difficult to recuse himself on this matter.

It was the role of the Constitutional court to determine whetheror not the raised question had constitutional issues. If not, the case would still be referred back to him to continue with it.

Unless, he has vested interest in this matter, Mag. SIMUSAMBA must do a honourable thing and recuse himself and allow an independent magistrate handle this matter while he battles his court case with Hon Kambwili in which they sued each other.

How can a goat which has raised concern over the decision by the lion to preside over its case expect justice and how can the presiding lion claim impartiality over the goat’s case which had a quarrel with the lion if the lion’s major interest is not to convict the goat and later eat it?

To this end, we ask the Chief Justice Irene Chirwa Mambilima to end this judicial drama and help restore some semblance of justice in this case by asking Mag Simusamba to recuse himself and reallocate the case to another magistrate.

McDonald Chipenzi
Executive Director
GEARS Initiative Zambia