LUSAKA Magistrates’ Court principal resident magistrate David Simusamba yesterday told off Chishimba Kambwili to thank himself.
This was after Kambwili thanked magistrate Simusamba for sending him to jail on charges of forgery and uttering a false document.
After magistrate Suimusamba pronounced the two-year sentence to run concurrently, Kambwili responded: “Magistrate Simusamba, thank you.”
In response, magistrate Simusamba said, “Thank you to yourself,” while drinking water and walking out of the court room.
The court has, however, acquitted Kambwili on a charge of giving false information to a public officer as there was no evidence.
Magistrate Simusamba said he was giving a punitive sentence to Kambwili to deter would be offenders who thought that they could disrespect institutions of justice.
Kambwili was charged with three counts of forgery, uttering a false document and giving false information to a public officer, in relation to the registration of Mwamona Engineering and Technical Services Limited.
In October 2013, with intent to defraud or deceive, Kambwili allegedly forged a ‘No change return’ (Companies Form 71) purporting to show that it was genuinely signed by his son Mwamba, when in fact not.
It is further alleged that Kambwili, knowingly and fraudulently, uttered the same document to an officer at Patents and Companies Registration Agency.
According to a complainant from Economic and Equity party leader Chilufya Tayali, the registration of Mwamona had anomalies.
He submitted that a national identity card number belonging to Kambwili’s sister Sampa was used to register his son, Mwamba, as one of the directors of the company.
Tayali’s contention was that Mwamba was a minor at the time for him to obtain a national registration card (NRC) and be registered as a director of Mwamona.
He stated that the documents, in particular a no change return at PACRA, were signed by Kambwili on the pretext that they were signed by Mwamba.
In his defence Kambwili said the complaint relating to the registration of Mwamona by Tayali was malicious and politically motivated.
Kambwili said before reporting the matter to the police, Tayali held a press briefing, alleging that he registered a company with false names with a motive to obtain contracts from government.
But magistrate Simusamba, in his findings, said from the evidence of three defence witnesses, the NRC number that was attached to Mwamba’s name during the incorporation of Mwamona belonged to Sampa.
Magistarate Simusamba said he noted that the notice of change of directors on Mwamba’s particulars changed in three aspects: the change of name from Mwamba Chishimba to Mwamba Kambwili, the substitution of his NRC with that of Sampa to his, and the change of the residential address.
“I agree with PW1 Chilufya Tayali and the arresting officer Stanley Mumbula that the name Mwamba Chishimba on the no change return is fictitious,” magistrate Simusamba said.
He ruled that Mwamba Chishimba was a fictitious person insofar as the documentation of Mwamona is concerned.
“The assigning of an NRC to the name Mwamba Chishimba on form 71 made a fictitious person. The accused was behind the fictitious person Mwamba Chishimba. Form 71 is a false document as it is telling a lie that it was signed by Mwamba Chishimba,” said magistrate Simusamba. “The prosecution has proved the charge of forgery beyond reasonable doubt. I find the accused guilty and convict him as accordingly charged.”
In mitigation, Kambwili’s lawyer Musa Mwenye, State Counsel, said the convict was a family man as could be seen from the evidence of his wife that he has five children and an extended family that depends on him.
Mwenye said Kambwili had served the country as a member of parliament and in several portfolios as a minister of government.
“He is a president of NDC and seeks to continue serving the people of Zambia by offering checks and balances to government. He has serious health issues as he sleeps with an oxygen machine and with some of the health conditions, a custodial sentence will mean the end of his life,” Mwenye submitted.
He said Kambwili was entitled to leniency no matter how aggravating the case might be.
“The accused should be given a suspended sentence other than a custodial sentence. We plead for maximum leniency,” submitted Mwenye.
In his judgement, magistrate Simusamba said during the proceedings Kambwili lacked courtesy towards the court.
“I have considered the mitigation and the evidence on record and the fact that the convict is a first offender. I noticed the conduct of the convict and come to the conclusion that he has no regard to the institution of justice. During my career I have dealt with high profile cases such as that of Dr Nevers Mumba whose status is like that of the convict, an honourable person,” said magistrate Simusamba. “But none of his peers conducted themselves in the manner the convict did. They conducted themselves in a dignified manner, even though I convicted them; that’s how an honourable man should conduct himself. I will give a punitive sentence to the convict in order to deter would be offenders who think they can disrespect the institutions of justice. I sentence him accordingly. Count one, 12 months imprisonment with hard labour; count two, 12 months’ imprisonment with hard labour to run concurrently.”
At this point Mwenye and Keith Mweemba said Kambwili had lodged an application for bail pending appeal to the High Court as the outcome of the judgement was anticipated.
But magistrate Simusamba rejected the application, wondering what time it had been filed when he had just delivered his judgement.
He said the application for bail pending appeal will be determined on Tuesday next week.
The stressed-looking Kambwili composed himself afterwards and urged his daughter Chanda not to cry as the outcome of the judgement was anticipated.
Earlier upon arrival at court, Kambwili said he expected anything from court.
“Anything is possible. Anything is possible and we welcome whatever comes,” said Kambwili.
And before delivering judgement, magistrate Simusamba said he noted that the conduct of Kambwili and his lawyers during trial was not good.
Magistrate Simusamba said with an exception of Mwenye who joined the proceedings at the end and concluded the matter, Kambwili and his other lawyers never wanted to see the proceedings end.
“It is clear that the accused never wanted to see this day of judgement. He employed all manner of tactics to ensure that this does not happen. The accused and his lawyers kept making malicious complaints to relevant authorities to ensure that these proceedings are curtailed,” he said. “He published confidential information and alleged that this court solicited for a bribe in order to render judgment in his favour. It was his intention to seek public sympathy as it can be seen in the manner, he made the complaints and commenced court process. His lawyers asked the court to recuse itself from handling the case. The accused absconded court on several occasions and even went as far as claiming that he had COVID-19 when in fact not.”
He said Kambwili’s intention was to delay justice and it was unfortunate that his lawyers, Cheelo Mwiinga and Christopher Mundia, joined him in his tactics.
“It is absurd that a lawyer who has a case before a magistrate or judge can take an action against that magistrate or judge while the matter is in court. They created a circumstance that they were not being given a fair trial,” said magistrate Simusamba. “By copy of the judgment I invite relevant law agencies to peruse the court records to see if the accused and his lawyers conducted themselves well. The Law Association of Zambia should take judicial notice of the conduct of its members.”
Kambwili remains with five other criminal charges pending determination before the Lusaka Magistrates’ Court.
And Chilufya Tayali, the complainant in the matter, said he was satisfied with the outcome.
“I am satisfied with the outcome. But this is not about Chilufya Tayali. This is about the Zambian people. I came to court, not as Chilufya Tayali. I came to court as somebody representing the people; that is why I came to court. So, this is for the Zambian people. I stand to fight corruption. As Economic and Equity Party we stand to fight corruption,” said Tayali. “We should not just be shouting corruption, corruption out there. We should be able to come to court like this, testify, give evidence and justice takes its course.”