GRACE CHAILE LESOETSA writes
NDC leader, Chishimba Kambwili insists that he be granted permission to challenge Lusaka Principal Magistrate David Simusamba’s decision to refuse to refer his case to the High Court for determination of Constitutional-related issues.
Kambwili contended that he has a good arguable case worth further investigation at the substantive hearing of the application for judicial review and as such he should be given the permission he was seeking.
He has also argued that his was a proper case for the High Court to exercise its supervisory jurisdiction over the subordinate court and grant him leave to commence judicial review proceedings against the decision of Mr Simusamba.
In this matter, Kambwili has sought leave to commence judicial review proceedings challenging Simusamba’s refusal to recuse himself from handling the case and refer it to the High Court in a matter in which he is charged with forgery and two other charges.
Kambwili, who has cited the Attorney General Likando Kalalukaas respondent and ex-parte, Mr Simusamba, stated that it has been difficult for his lawyers to perform their duties effectively as the court room is always poisoned with outbursts of anger and threats from the magistrate towards him and his lawyers.
He wants a declaration that the decision of Mr Simusamba to refuse to recuse himself from presiding over the said case before him, is unlawful and irrational.
Kambwili also wants an order of prohibition, prohibiting the presiding magistrate from continuing to preside upon his case and an order of mandamus directing him to recuse himself forthwith and to surrender the case record to the chief resident magistrate for re-allocation to another magistrate.
He wants, if leave is 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.
But the State has urged the Lusaka High Court to dismiss Kambwili’s application arguing there was no case worthy investigating because there was no illegality committed by Mr Simusamba in refusing to refer the case because it was within his discretion.
However, in his arguments in reply of Mr Simusamba’s skeleton arguments in opposition of an application for leave to commence judicial review proceedings filed on August 2020, Kambwili stated that according to Article 128 of the Constitution, it was illegal for Simusamba to hold that no constitutional issue had arisen because that was outside the jurisdiction of the court.
Kambwili prayed that the High Court grants him leave to commence judicial review proceedings and stays the proceedings in the Lusaka magistrate court so as not to render the proceedings before High Court academic.
