NDC leader Chishimba Kambwili has renewed his notice of appeal to the High Court challenging his two-year jail term with hard labour to run concurrently for forgery and uttering a false document to a public officer.
This comes after Lusaka principal resident magistrate David Simusamba dismissed his earlier notice of appeal to the High Court for being defective.
Magistrate Simusamba convicted Kambwili on two counts and sentenced him to one year in each, which are to run at the same time, implying the opposition leader will only serve a year in jail.
During bail application hearing yesterday, magistrate Simusamba said a notice of appeal to the High Court challenging his decision and sentencing could only be filed after he had concluded delivering his judgment and sentencing according to section 321 and 323 of the Criminal Procedure Code.
He noted Kambwili in his affidavit in support of the previous notice said that he was at the time in detention at Lusaka Central Correctional facility commonly known as “Chimbokaila” on October 12 when he had not yet been committed to the said facility.
Magistrate Simusamba ruled that the notice of appeal was filed in court before he could finish delivering his judgment and sentence contrary to section 321 and 323 of the CPC.
He said what was more shocking was that Kambwili appealed against his acquittal on a charge of giving false information to a public officer, a charge which he had denied.
Magistrate Simusamba said because the notice of appeal was irregular, Kambwili could not apply for bail pending appeal without complying with sections 321 and 323 of the Criminal Procedure Code, therefore the bail application could not be entertained.
However, Kambwili has filed a fresh process and seeks to contest his one-year jail term on 11 grounds of appeal.
According to his notice of appeal against his conviction and sentence, Kambwili says in relation to Article 18 of the Constitution, section 39 of the Anti-Corruption Act no.3 of 2012, and the judicial code of conduct Act no. 13 of 1999, magistrate Simusamba erred in law and fact when he refused to recuse himself and proceed to hear his forgery case and convicted him (Kambwili) notwithstanding that he accused the appellant of trying to bribe him (magistrate Simusamba) to which he has sued him for defamation of character.
Kambwili said in view or article 28 and 128 of the constitution, magistrate Simusamba erred in law and fact when he refused to refer to the High Court for determination on whether or not his constitutional right before an independent and impartial court had been, was being and was going to be infringed as a result of his refusal to recuse himself.
He said magistrate Simusamba erred in law and fact when he prematurely curtailed his defense and ordered the immediate closure of the defense without considering his (Kambwili) application for adjournment as his lawyers were appearing before superior courts on the same date and time.
“ The learned trial magistrate in the court below erred in law and fact when he conducted trial in contumelious disregards, did violate Article 18(1) of the Constitution as regards the tenets of fair hearing, impartiality and adequate time and facilities for preparation of defense,” Kambwili said.
Kambwili contended that magistrate Simusamba erred in law and fact when he held that Mwamba Chishimba was a fictitious person notwithstanding the evidence that was placed before court regarding the existence and true identity of the said Mwamba Chishimba.
He said the court erred in law and fact by holding that by signing companies form 71 on behalf of Mwamba Chishimba, he forged the same document.
Kambwili contended that magistrate Simusamba was wrong at law and fact when he held that the no change return was a false document and that he uttered the same to Patents and Companies Registration Agency.
Kambwili said magistrate Simusamba erred in law and fact when he convicted him against the weight of evidence on record.
He further stated that magistrate Simusamba erred in law and fact when he held that himself (Kambwili) and his lawyers had no respect for the court and that the appellant lied that he had tested positive to COVID-19 when the court subpoenaed medical practitioners at its own instance whose testimony was unchallenged, which shows that magistrate Simusamba’s partiality disposition and prejudice against the convict.
Kambwili added that magistrate Simusamba erred in law and fact when he convicted him and imposed a punitive sentence basing his conviction and sentence mainly on his erroneous finding that he (Kambwili) had shown no respect for him, an issue that was not subject of trial before court.
Hearing of Kambwili’s bail application has been slated for Monday, October 26, 2020.