The National Democratic Congress, NDC, president Dr. Chishimba Kambwili has successfully lodged in an appeal against both his conviction and sentence at the Lusaka High Court.
The bail hearing pending appeal will be on Monday October 26, at the Lusaka Magistrate’s Court at 10:00hours.
President Kambwili was convicted on October 14, and sentenced to one year imprisonment.
It was alleged that Dr Kambwili on October 29, 2013, with intent to defraud or deceive, forged a No Change Return (Companies Form 71) purporting to show that it was genuinely signed by Mwamba, his son when in fact not.
In count two, it was alleged that Dr Kambwili on the same day, forged the No Change Return form, he knowingly and fraudulently uttered it to an officer at Patents and Companies Registration Agency (PACRA).
In the third count, he was accused of giving false information to a public officer.
Magistrate Simusamba in his judgment said the prosecution proved a case beyond reasonable doubt as regards count one and two of forgery and uttering a false document but that the prosecution failed to adduce sufficient evidence in the third count, resulting in an acquittal.
However, Dr Kambwili through lawyers Musa Mwenye State Counsel, Keith Mweemba, Christopher Mundia and Gilbert Phiri has successfully filed in his summons for admission to bail pending appeal as well as a notice of appeal against his conviction and sentence.
Dr Kambwili has filed 11 grounds of appeal among them that in view of Article 18 of the Constitution of Zambia; Section 39 of the Anti-Corruption Act No. 3 of 2012; and Sections 3 and 6 of the Judicial (Code of Conduct) Act No. 13 of 1999, magistrate Simusamba erred in law and fact when he declined to recuse himself and proceeded to hear the matter and convict him, notwithstanding the fact that he had accused him of trying to bribe him and that he had as a result of the accusation sued him for defamation of character.
He stated that magistrate Simusamba erred in both law and fact when he prematurely curtailed his continued defence of his case and ordered immediate closure of defence notwithstanding that he had applied to adjourn the matter on the ground that his Counsel was appearing before the Court of Appeal on the same date and at the same time.
Dr Kambwili stated 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 has also submitted that magistrate Simusamba erred in both law and fact when he held that by signing Companies Form 71 on behalf of Mwamba Chishimba, he forged the document.
The NDC leader also stated that that magistrate Simusamba gravely misdirected himself both in law and fact when he convicted him against the weight of the evidence on record, and when he held that he and some of his lawyers had no respect for the trial court and that he lied to the court that he had tested positive to COVID-19.
Dr Kambwili further stated that magistrate Simusamba erred in law and fact when he convicted him and imposed what he termed as a punitive sentence, basing his conviction and sentence mainly on his erroneous finding that he had shown no respect for the honourable court, an issue that was not subject of trial before court among other grounds.
According to an affidavit in support of summons for admission to bail pending appeal, Dr Kambwili stated that the offence he was charged with was bailable and hence his application to this court of competent jurisdiction to admit him to bail pending the determination of the appeal.
He stated that if bail was not granted, he was going to suffer prejudice and injustice as there was a possibility of serving the substantial part of the sentence before the appeal is heard thereby rendering his appeal an academic exercise and of no purpose.
“I hereby make an undertaking that if bail is granted, I shall abide by and comply with all reasonable bail terms and conditions that this Honourable Court of competent jurisdiction may impose,” read the affidavit in part.
As NDC, we bemoan the continued heavy presence of the police at the courts and the harassment of Dr. Kambwili’s family, alliance partners especially the UPND, party members and officials. The behavior of the police, like that of the magistrate, shows a clear case of political persecution and there is no reason why the magistrate should continue refusing our president the right to bail.