Chishimba Kambwili v The Attorney General (App. No. 51/2020) [2021] ZMCA 192 (22 March 2021)

.. IN THE COURT OF APPEAL OF ZAMBIA App . No . 51/2020 HOLDEN AT LUSAKA (Civil Jurisdiction) IN THE MATTER OF: ARTICLE 18 OF THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLE 28 (2) (a) OF THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA , CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF : SECTIONS 3 AND 6 OF THE JUDICIAL (CODE OF CONDUCT) ACT NO . 13 OF 1999 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ORDER 53 OF THE RULES OF THE SUPREME (WHITE BOOK) 1999 EDITION COURT IN THE MATTER OF: SECTIONS 12 OF THE STATE PROCEEDINGS ACT, CHAPTER 71 OF THE LAWS OF ZAMBIA IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW IN THE MATTER OF: THE DECISION OF THE PRINCIPAL RESIDENT MAGISTRATE HONOUABLE DAVID SIMUSAMBA IN OPEN COURT JUNE 2020 MADE ON 2ND DECLINING FROM HIMSELF RECUSE PRESIDING OVER THE CASE OF THE PEOPLE V . CHISHIMBA KAMBWILI CAUSE NUMBER SSPC/003/18 TO r ' \ ~'->' i 2 - IN THE MATTER OF : . ............. ~ -3~!.lU~.4 1/ ,-. cvv~: 1 ,.,,,~ . --- . . - "Lv,.;,,.,, UPON DECLINE, THE DECISION OF THE PRINCIPAL RESIDENT MAGISTRATE HONOURABLE DAVID SIMUSAMBA ACCUSED'S TO REQUEST, TO REFER THE MATTER TO THE FOR DETERMINATION OF A HIGH COURT CONSTITUTIONAL ISSUE OF THE ACCUSED ' S AN FAIR HEARING BEFORE RIGHT INDEPENDENT AND IMPARTIAL TRIBUNAL . THE TO BETWEEN: CHISHIMBA KAMBWILI AND R2 APPLICANT THE ATTORNEY GENERAL RESPONDENT CORAM: Mchenga DJP , Ngulube and Siavwapa , JJA On 6~ October 2020 , 20~ October 2020 and 22~ March 2021 For the Applicant : M. Mwenye SC, with Z. Maipambe, Mwenye & Mwitwa Advocates For the Respondent : A . Mwansa SC, Solicitor General, with D . M. Mwewa , Principal State Advocate, Attorney General ' s Chambers . MAJORITY RULING Mchenga , DJP, delivered the majority ruling of the court . Cases referred to : 1 . The Peopl e v The Principal Resident Magistrate , ex parte Faustin Kabwe a nd Aaron Chungu [2009] Z . R . 170 2 . Locaball (UK) Limi ted v Bayfield Properties Limited & Ano t h e r [1999 ] EWCA Civ 3004 3 . William Harr i ngton v Hon Dora Siliya , MP and The Attorney Gene r al Judgment No 14 2011 . 4 . Savenda Management Services Limited v Stanbic Bank Zambia Li mited (Respondent) and Gregory Chifire (Al l eged Contemnor) Selected Judgment No . 47 of 2018 5 . Ch i kuta v Chipat a Rural Council [1974] Z . R . 24 1 R3 6 . Association Provincial Picture Houses Limited v Wednesbury Corporat i on (19481) KB 223 . 7 . Nyampala Safaris (Z) Limited , Baobab Safaris (Z) Limited , Nyumbu Safaris ( Z) Limited , Exclusive Safaris (Z) Limited , Busanga Trails (Z) Limited v Zambia Wildlife Authority , Zambia National Tender Board, Attorney General , Luangwa Crocodile And Safari Limited , Sofram And Safaris Limited , Leopard Ridge Safaris Limited , Swanepoel & Scandrol Safaris Limited (2004] Z . R . 49 8. R v Epping and Harlow General Commissioners , ex parte Goldstraw (1983] 3AII ER 257 Legislation referred to: l . The Constitution of Zambia , Chapter 1 of the Laws of Zambia 2 . The Penal Code , Chapter 87 of the Laws of Zambia 3 . The Judicial (Code of Conduct) Act 4 . The Criminal Procedure Code , Chapter 88 of the Laws of Zambia Works referred to: l . The Rules of Supreme Court 1999 Edition 2 . De Smith ' s Judicial Review , Sixth Edition , London , Sweet & Maxwell 2007 R4 1 . INTRODUCTION 1.1 This is a renewed application for leave to apply for judicial review . The court has been moved pursuant to Order 53 Rule 14 (6) of the Rules of the Supreme Court {RSC). 1. 2 The applicant , initially approached the High Court seeking leave to apply for judicial review pursuant to Order 53 rule 1 of the Rules of the Supreme Court. The High Court decl in ed to grant him the leave he sought and hence this application . 2. BACKGROUND 2.1 In January 2018 , the applicant was arraigned before the Subordinate Court on two charges ; forgery , contrary sections 342 and 347 of The Penal Code and uttering a forged document , contrary to section 354 of The Penal Code. He took plea and denied the charge . The matter then proceeded to trial . 2. 2 During the course of the trial , on 17 th December 2019 , the applicant wrote the Chief Justice , complaining of the manner in which the pres i ding magistrate was handling his case. Prior to writing t RS that letter , he had demanded that the presiding magistrate recuse himself . He had also complained to the Judicial Service Commission , on the same issue . 2. 3 In her response to the complaint , on the 22 nd of January 2020 , the Chief Justice informed the applicant , among other things , that the presiding magistrate had informed her that the applicant , had approached him and offered a bribe for him to pass a favourable decis i on . 2. 4 What followed , is that the appl icant reported the presiding magistrate to the Anti - Corruption Commission , alleging that it is the presiding magistrate who had demanded a bribe from him . In addition , the applicant , by writ of summons , took out defamation proceedings in the High Court ' s Principal Registry . 2 . 5 Further , on 20 t h March 2020 , the applicant , by motion , again moved the presiding magistrate to recuse himself from handling the case and transfer the matter to a different magistrate . The presiding magistrate declined . R6 2.6 Following the dismissal of the application to recus e hims e lf , the applicant sought to invoke the provisions of Article 28(2) of the Constitution . He applied for the presiding magistrate to refer the matter to the High Court for determination of whether his right to a fair trial before an impar tial court , was being infringed . Yet again , the presiding magistrate declined to make the reference , finding that the application did not raise any constitutional issues wa r ranting s uch reference . 2.7 The applicant then approached the High Court seeking leave to apply for judicial review. The High Court declined to grant him the l eave sought and hence this renewed app l ication . 3 . RELIEFS SOUGHT 3.1 The first relief the applicant seeks is in the form an order of mandamus , to compel the presiding magistrate to recuse himself from presiding over the criminal trial . R7 3 . 2 He also seeks an order that the matter be referred to the High Court for the determination of whether his right to a fair trial , has been infringed. 4 . GROUNDS ON WHICH LEAVE TO APPLY FOR JUDICIAL REVIEW IS SOUGHT 4.1 The applicant has pleaded that the trial magistrate ' s decisions refusing to either recuse himself from presiding in his case , or to refer the matter to the High Court , are both illegal and irrational . 4. 2 They a r e illegal and irrational because they contravene Articles (18) (1) and 28 (2) of the Constitution and sections 3 and 6 of the Judicial (Code of Conduct) Act. 5. ARGUMENTS BY COUNSEL 5 .1 The Solicitor General has opposed the application . The basis of his objection , is that judicial review is not available in this case because the applicant has the right to appeal against the decisions of the trial magistrate . He referred to Order 53/14/26 of the RSC and the case of The People v The Principal RS Resident Magistrate ex parte, Faustine Kabwe and Aaron Chungu1 , in support of his proposition . 5.2 On the other hand , Mr . Mwenye SC , argued that judicial review is available because the decisions complained of in this matter were interlocutory , and no appeal lies against an interlocutory decision in a criminal trial . 5. 3 He also a r gued that the principles set out in the case of The People V The Principal Resident Magistrate ex parte, Faustine Kabwe and Aaron Chungu1 , are not applicable to this case , as the circumstances are different . That case was concerned with the challenge of the decision of the trial magistrate , at case to answer stage , while this case is concerned with whether the magistrate has the jurisdiction to preside over the case . 5.4 Coming to the applicant ' s claim that the trial magistrate 's continued hearing of case is illegal on account of the trial magistrate breaching of sections 3 and 6 of the Judicial (Code of Conduct) Act, Mr. Mwenye SC pointed out that Article 18(1) of the R9 Constitution, guarantees a person charged with a criminal offence , the right to a fair hearing before an independent and impartial court. 5. 5 He also pointed out that Section of 3 the Judicial (Code of Conduct) Act provides that when carrying out his duties, an adjudicator must uphold the integrity and independence of the judiciary . Further , section 6 of the Judicial (Code of Conduct) Act, provides that an adjudicator must not take part in proceedings in which his impartiality might reasonably be questioned . 5 . 6 Mr . Mwenye SC , then referred to the cases of Locaball (UK) Limited v Bayfield Properties Limited & Another2 , William Harrington v Hon Dora Siliya , MP and The Attorney Genera1 3 and Savenda Management Services Limited v Stanbic Bank Zambia Limited (Respondent) and Gregory Chifire (Alleged Contemnor) 4 and submitted that given that the applicant is a plaintiff in a case in which the trial magistrate is a defendant , the trial magistrate should not continue to preside over the applicant ' s case . This is because RlO given the surrounding circumstances , the trial magistrate ' s partiality might reasonably be questioned . 5.7 His decision to continue presiding over the case is in breach of section 6 of the Judicial (Code of Conduct) Act because it is apparent that he is likely to be biased . Further , h i s continued hearing of the case is illegal , as he was required to recuse himself . It is also contravening section 3 the Judicial Code (of Conduct) Act as it has rendered the integrity and independence of the judiciary questionable . 5. 8 Coming to the trial magistrate ' s dec i sion , refusing to refer the matter to the High Court , contravening Articles (18) (1) and 28(2) of the Constitution , Mr. Mwenye SC , argued tha t once a request has been made under Article 28(2) (a) of the Constitution , a trial magistrate is not competent to determine whether a constitutional issue exists or not . He is obliged to refer the matter to the High Court . Rll 5.9 He also argued that the use of the words ' frivolous and vexatious' in Article 28(2) of the Constitution, do not give the magistrate unfettered freedom to refuse to consider an application for reference . He referred to the principle set out in case of Chikuta v Chipata Rural Council5 , on the use of discretion, and argued that where an adjudicator has power to exercise discretion , it must be exercised reasonably and within the law . 5.lO in this case , the decision not to refer the matter to the High Court for the determination of the constitutional issue raised by the applicant, was illegal because it was not made within the parameters set by the law . 5.ll Mr . Mwenye SC , concluded his arguments by stating that given the facts before him , the decision of the trial magistrate not to recuse himself or to refer the case to the High Court for the determination of the Constitutional issue , was irrational and unreasonable , in the 'Wednesbury sense '. R12 5 . 12 He referred to the case of Associated Provincial Picture House Limited v Wednesbury Corporation6 , and submitted that had the trial magistrate applied his mind to the application for recusal , he would not have insisted on presiding over a matter in which the accused person had reported him for corruption and was a party to a case , in which he was the defendant. 5 .13 Similarly , had he applied his mind to the facts in the application that he refers the matter to the High Court , he would not have found it to be frivolous and vexatious . 6 . CONSIDERATION OF ARGUMENTS AND DECISION OF THE MAJORITY 6 .1 Though Mr Mwenye SC , argued at length and persuasively, on the merits of the applicant ' s objections to the trial magistrate ' s continued hearing of his case , one must not lose sight of the fact that t his is a renewed app l ication for leave to institute judicial review proceedings . In the case of Nyampala Safaris (Z)Limited and Four Others v Zambia Wildlife Authority and Six Others 7 , it was held that : Rl3 'The remedy of judicial review is concerned not with the merits of the decision , but the decision-making process itself . ' This being the case , we are constrained from considering the merits of the applicant ' s complaint against the trial magistrate. This ruling therefore focuses on procedural issues that the application has raised . 6.2 The editors of De Smith's Judicial Review , Sixth Edition, in paragraph 16- 014 , have pointed out as follows : it plain the 'In numerous cases in recent decades , have Administrative Court and its precursor of made that exceptional to proceed with a judicial review claim will be refused where a claimant has failed to exhaust other possible remedies.' the absence circumstances) permission (in 6.3 In paragr aph 16- 018 , the y have also pointed out that : 'The most straight forward substitute remedy is where legislation provides an appeal' . In addition , in paragraph 16- 021 , they state as follows : to statutory appeals, the ' In addition Administrative Court has regarded a range of other grievance redressing mechanisms as review. These substitutes judicial for R14 include: a statutory complaints procedure ; 6 . 4 In the case of R v Epping and Harlow Gen eral Commissioners , ex p. Goldstraw8 , at page 262, the Court of Appeal in England , observed as follows: "Al though the court, in the exercise of its discretion , would rarely allow the applicant to proceed by way of judicial review where there is an alternative remedy to him, there the may circumstances are such that the court would grant relief by way review without requiring the pursue the alternative remedies available to him' judicial of applicant to exceptional where cases be 6. 5 From the foregoing , the position of the law, as we understand it, is that judicial review is not ordinarily available where there are other legal avenues for challenging a decision . In this application, we are dealing with two decisions; the trial magistrate ' s decision not to recuse himself and his decision not to refer the case to the High Court for determination of a constitutional issue raised by the applicant. RlS 6 . 6 The appl i cation for the tr i al magistrate to recuse himself was premised on sections 3 and 6 the Judicial (Code of Conduct) Act. 6.7 Section 3 the Judicial (Code of Conduct) Act provides that : ' A judicial officer shall uphold the integrity , independence and impartiality of the judicature in accordance with the constitution, this Act or any other law. ' 6.8 In the case of section 6(2) of the Judicial (Code of Conduct) Act, the relevant parts of that provision read as follows : 'A judicial officer shall not adjudicate or take part in any consideration or discussion of any proceedings in which the officer's impartiality might reasonably be questioned on the grounds that- (a) the officer has a personal bias or prejudice concerning a party or a party ' s legal practitioner or personal knowledge of the facts concerning the proceedings; (b) the officer served as a legal practitioner in the matter ; R16 (c) a legal practitioner with whom the officer previously practiced law or served is handling the matter; (d) the officer has been a material witness concerning the matter or a party to the proceeding; (e) the officer individually or as a trustee, or the officer's spouse, parent or child or any other member of the officer's family has a pecuniary interest in the subject matter or has any other interest that could substantially affect the proceeding; or (f) a person related to the officer or the spouse of the officer- (i) is a party to the proceeding or an officer, director or a trustee of a party; (ii) is acting as a legal practitioner in the proceedings ; (iii) has any interest that could interfere with fair trial or hearing; or (iv) is to the officer ' s knowledge likely to be a material witness in the proceeding.' 6.9 While we agree with Mr . Mwenye SC that it is undesirable for a magistrate to hear a matter in which his partiality may be questioned , section 25 of Rl7 the Judicial (Code of Conduct) Act, provides a complaints mechanism for dealing with the issue. It provides that : 'Any member of the public who has a complaint against a judicial officer or who alleges or has reasonable grounds to believe that a judicial officer has contravened this Act shall inform the Authority. ' 6 . lO Since there is a complaint procedure , under the Judicial (Code of Conduct) Act, we find that the trial magistrate ' s decision not to recuse himself , cannot , at this point be the subject of judicial review proceedings. The Act has provided a grievance procedure , which is reporting him to the Judicial Complaints Authority and the applicant has not deployed it . It is not until that grievance procedure has been exhausted that the possibility of subjecting the decision to judicial review proceedings can be considered. R18 6 . 11 As regards the trial magistrate's refusal to refer the matter to the High Court , we will first deal with State Counsel Mwenye ' s argument that since the Subordinate Court has no jurisdiction to deal with constitutional issues , once an application for a reference is made under Article 28(2) of the Constitution, the court must refer the matter to the High Court . 6 .12 Article 28(2) of the Constitution provides as follows: 'If in any proceedings in any subordinate court any question arises as to the contravention of any of the provisions of Articles 11 to 26 inclusive, the person presiding in that court may, and shall, if any party to the proceedings so requests , refer the question to the High Court unless , in his opinion the raising of the question is merely frivolous or vexatious.' 6.13 It is our understanding that when an application is made under that provision , a magistrate must first consider whether it raises a constitutional issue or R19 not. The application , must , prima facie, raise a constitutional issue and it is the trial magistrate who must make that finding . 6 .14 If it does , the case must be referred to the High Court . However , where the trial magistrate takes the view that it doesn't , in which case , he may come to the conclusion that application is either frivolous or vexatious , he is entit l ed not to refer the matter . 6.15 Much as we agree with Mr . Mwenye SC that the Subordinate Court does not have the jurisdiction to determine constitutional issues , we do not think that a trial magistrate's consideration of whether an application raises a constitutional issue , amounts to determining the constitutional issue . A magistrate faced with an application under the provision , must assess the application and only make the reference when satisfied that it raises a constitutional issue worthy of determination by the High Court. 6 . 16 We will now consider the question whether the trial magistrate ' s decision not to refer the matter to the High Court for the determination of the R20 constitutional issue can be the subject of judicial review . As earlier indicated , Mr . Mwenye SC , has argued that it is review able because there i s no right of appea.ling on an intBrlocutory issue, in a criminal matter ; he referred to the case of The People v The Principal Resident Magistrate, ex parte Faustin Kabwe and Aaron Chungu1 , as authority for the proposition that no appeal lies on an interlocutory issue in a criminal trial . 6 .17 The editors of De Smith's Judicial Review, Sixth Edition, discussing the nature of decisions t hat can be the subject of judicial review proceedings , have in paragraph 3-028 , indicated as follows : a formal, in 'A series of decisions may be made relation to a claimant ; the question may arise as to which of them is amenable to review. Thus, a preparatory step on the way to making legally binding decision may not be reviewable. A decision may be part of a two-tier process, so that an initial determination is superseded by a later one, with the effect that the first decision may no longer be challenged; or what purports to be a second decision may in reality be only a confirmation of an and initial decision itself so the question is also reviewable. There not R21 whether a decision not to alter an earlier administrative decision a reviewable decision. There is "no formulaic case or straightforward answer", must turn own particular facts.' and each its itself extent is an to on 6.18 In a criminal trial , the "formal and legally binding decision" is the judgment that is passed by the court at the end of the trial . This is because all other interlocutory decisions are either preparatory or temporal , in that the views that they contain, may be varied or reversed, in the final judgment . 6 . 19 For example , the fact that evidence had been admitted does not mean that it will be relied on in the final judgment , as it may subsequently be found not to be credible on account of some other evidence presented to the court during the trial ; the fact that an accused person has been found with a case to answer for a particular offence does not mean he will be convicted for that offence , he may be convicted of another offence or even acquitted. 6.20 Similarly , the fact that a court rules at the commencement of a trial that it has jurisdiction to R22 try a case , does not stop it from eventually acquitting an accu s ed person , for there being no evidence or indeed lack of jurisdiction . The list is endless , but the common thread that runs through all interlocutory decisions in a criminal case , is that they are not final and are subject to variation in the final judgment . 6.21 This being the case , the decision in an interlocutory ruling in a cr i minal case is not justifiable and thus no appeal lies against such a ruling soon after it has been passed . That is not to say that one cannot appeal against an erroneous interlocutory ruling at all ; he can . It is only that such appeal can only be lodged after the passing of the judgment . 6 . 22 The r ight of appeal in a criminal case that is before the Subordinate Court , is set out in sections 321 and 321A of the Criminal Procedure Code . The provisions indicate that such right only becomes available after the court has delivered its judgment . In the case of an acquittal , it is immediately after such judgment has been delivered , but where there has been a R23 conviction , it is not until the sentence has been passed . 6. 23 In the cas e of The People v The Principal Resident Magistrate, ex parte Faustin Kabwe and Aaron Chungu1 , Sakala C. J. , delivering the judgment of the court , observed as follows : 'We sympathize with Mr . Sangwa; but as for now that is the law . The issues raised in this purported appeal are only relevant at the end of the criminal trial should there be a conviction. We are , therefore, satisfied that the trial judge did not misdirect himself on a point of law; when he held that the decisions of the Court of the Principal Resident Magistrate are subject to appeal under the provisions of the Criminal Procedure Code . ' 6.24 In section 353 of the Criminal Procedure Code , which deals with irregularities during a criminal trial , it has been provided as follows : 'Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction R24 shall be reversed or altered on appeal or revision on any ground whatsoever unless any matter raised in such ground has , in the opinion of the appellate court, in fact occasioned a substantial miscarriage of justice : Provided that, in determining whether any such matter has occasioned a substantial miscarriage of justice, the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceeding.' 6. 25 From the forgoing , it can be said that the correct position as regards appeals against interlocutory rulings in a criminal matter , is that one can appeal against them. It is just that one cannot appeal against them when the trial is still going on but after the judgment has been delivered , and hence the general understanding that there are no interlocutory appeals in criminal matters. 6.26 It is our view that the trial magistrate ' s decision not to refer the matter to the High Court cannot be the subject of judicial review because it is not a final decision. But probably more important , is the R25 point raised by the Solicitor General, that the decision can still be the subject of an appeal at the end of the trial. 6 . 27 Earlier on , we referred to the case of R v Epping and Harlow General Commissioners , ex parte Goldstraw8 , and pointed out that where there is an alternative remedy, judicial review may be available where there are exceptional circumstances. We have examined the facts surrounding this application and we find no exceptional circumstances to grant relief by way of judicial review, without requiring the applicant to exhaust the alternative remedies that are available. ?. CONCLUSION 7 . 1 We find that since the complaint procedure set out in The Judicial (Code of Conduct) Act , for dealing with breaches under that Act has not been exhausted, judicial review is not available for the trial magistrate ' s refusal to recuse himself . 7.2 We also find that the trial magistrate's refusal to refer the case to the High Court on Constitutional reference cannot be the subject of judicial review R26 because it is an interlocutory decision, which decision can be the subject of an appeal at the end of the trial . 7.3 Since we have found that both decisions are amenable to alternative statutory procedures for review, we find that this is not a case in which it is appropriate to grant leave to institute judicial review proceedings . 7.4 Wedecline the application and the parties shall bear their respective costs . ···········~ ····························· P. C. M. Ngulube COURT OF APPEAL JUDGE DISSENTING RULING SIAVWAPA , JA, delivered the minority ruling of the court Cases referred to : 1. Anthony Mphanza v Council for University of Zambia, Appeal No 13 of 2019 (CAZ). R27 2 . The People v the Principal Resident Magistrate Ex parte , Faustin Kabwe and Aaron Chungu, SCZ Judgment No 17 of 2009 3 . Chama Mutambalilo v the Attorney-General SJ No 32 of Legislation referred to: 1. Constitution as amended by Act 2 of 2016 2 . Judicial (Code of Conduct) Act 13 of 1999 3 . Rules of the Supreme Court of England (White Book) 4 . Criminal Procedure Code Act Chapter 88 of the Laws of Zambia 1 . 0 INTRODUCTION 1 . 1 This is a renewed application for leave to apply for judicial review pursuant to Order 53 Rule 14 (61) of the Rules of the Supreme Court of England , 1965. The application was initially made before the High Court and the Honourabl e Mr . Justice M. Chitabo , SC refused to grant leave after a hearing . This application is therefore a fresh one as envisaged by Order 53 r (14) (65) of the Rules of the Supreme Court 1999. 1 . 2 The decision of the learned Judge in the Court below is inconsequential as the Application will be given a fresh and independent look . R28 2 . 0 THE APPLICATION 2 . 1 The application f or leave to apply for judicial review is made pursuant to Order 53 r 3 of the Rules of the Supreme Court 1999 edition . 2 . 2 The key element for consideration in an application for leave to apply for judicial review is whether , prima facie , there is a case or question suitable for further i nvestigation at a subs tan ti ve hea r ing for judicial review. See the case of Anthony Mphanza v Council for University of Zambia 1 . 0nce this threshold is attained , the Judge ought to grant the leave wi t hout delving into the merits of the issue subject for consideration at the hearing of the substantive application . In order to ascertai n whether o r not the threshold for granting leave has been attained , the Judge will look at the remedies sought namely ; mandamus , prohibit i on , certiorari injunction . 2. 3 For any of these remedies to mer i t taking to the hearing of the substantive judicial review , the facts relied upon namely , illegality , unreasonableness or irrationality will be previewed . 3 . 0 BACKGROUND 3 . 1 The Applicant was being tried for a criminal offence by the herein Principal Resident Magistrate whose decision is the subject of the application . During the course of the trial the Appl i cant asked the a R29 learned Magistrate to recuse himself from the trial on account that the learned Magistrate's impartiality was questionable because he had solicited for a bribe which the Applicant refused . The learned Magistrate refused to recuse himself . The Applicant then made another application for the learned Magistrate to refer the matter to the High Court to determine whether or not his right to a fair trial under Article 78 of Constitution had not been infringed upon by the refusal by the Magistrate to recuse himself. In his ruling the learned Magistrate stated that there was no constitutional matter that had arisen and ruled the application frivolous and vexatious. The refusal of the two applications by the learned Magistrate gave rise to the application for leave to move for judicial review. 4.0 THE FACTS FOUNDING THE APPLICATION 4 . 1 The Application for leave is founded on two facts namely ; Illegality and irrationality of the two decisions by the learned Magistrate by which he refused to recuse himself and to refer the matter to the High Court for determination of a constitutional matter. (a) ILLEGALITY Under the ground of illegality , it is submitted that once the application for recusal had been R30 made on perceived impartiality , the learned Magistrate was caught up by the Section 6 ( 2) (a) of the Judicial (Code of Conduct) Act No 13 of 1999 wh ich provides as follows ; "A judicial officer shall not adjudicate or take part in any consideration or discussion of any proceedings in which the officer's impartiality might reasonably be questioned on the grounds that ; - (a) the officer has a personal bias or prejudice concerning a party or party ' s legal practitioner or personal knowledge of the facts concerning the proceedings; " 4.2 On the refe r ral to the High Court the submission is that once an a p plicat i on i s made pursuant to Art i c l e 28 (2) (a) of the Cons titut i on , the pr e siding officer i s robbed of the jurisdiction to determine whether or not a constitutional matter has arisen as the same is the preserve of the Hi gh Court . 4 . 3 It is therefore submitted that in both instances , the learned Magistrate acted illegally and hence , the need for leave to be grant ed so that the two issues can be considered on merit at the hearing of the substantive application for judicial review . Counsel for the Applicant , Mr . Mwenye , SC in his viva voce submissions argued further that in line with the case .. R31 of the People v the Principal Resident Magistrate Ex parte Faustin Kabwe and Aaron Chungu2 , there is no interlocutory appeal in criminal cases and as such, the only option available to the Applicant was the judicial review route . 4. 4 The Respondent in opposing the application argued that there was no illegality on the part of the learned Magistrate in both instances . It was argued that the refusal to refer the matter to the High Court was within the Magistrate ' s powers as Article 28(2) (a) of the Const i tution gives discretion and the power to form an opinion that the question is merely frivolous and vexatious. 4.5 For ease of reference Article ( 2) (a) is reproduced hereunder; 11If in any proceedings in any Subordinate Court any question arises as to the contravention of any of the provisions of Articl.es 11 to 26 incl.usive, the person presiding in that Court may, and shall., i f any party to the proceedings so requests, refer the question to the High Court unl.ess, in his opinion the raising of the question is merel.y frivol.ous and vexatious " . 4 . 6 According to the learned Solicitor- General the use of the conj unction "and" immediately after the word R32 "may" implies that the Subordinate Court has the discretion to refuse a referral to the High Court . 4 . 7 While I agree with the learned Solicitor - General partially t he reason for the presence of the discretion is not on account of the juxtaposition of the words " may" and "and" in the drafting of Article (2) (a) of the Constitution. What the two words do is to vest in the Court two separate powers depending on how the Court is moved on the question of the provisions of Articles 11 to 26 of the Cons ti tut ion. Article 2 8 ( 2) (a) provides for two possible ways in which the question may arise . The first is at the instance of the Court itself where it forms the view that there is or there has arisen a question in contravention of the said Article of the Constitution . In that case , the Court has the discretion to refer or not to refer the question to the High Court . So the "may" immediately following the word "Court" is backward looking : The second instance is where a party requests a referral to the High Court in which case , the Magistrate is under obligation to refer the matter to the High Court. 4 . 8 So , the conjunction "and'' connects not the discretionary power but the mandatory nature of the power in the second scenario . R33 4.9 This construction is based on the fact that it would be absurd to imbed in the same provision a discretionary and a mandatory power. 4 . lOin this case however, it is clear that the two adverbs "may'' and "shall" refer to different clauses within the provision of Article 28 (2) (a). 4 . 11 In the alternative, it is submitted that the last part of the Article still gives discretion to the Magistrate if he forms the opinion that the request is frivolous and vexatious. I would not characterize a request by a litigant for a determination of whether or not they would receive a fair trial as frivolous and vexatious. The circumstances of the case , in my view, justified the concerns raised by the Applicant. 4.12Another argument that the learned Solicitor -General raises is that judicial review is not available in an active criminal matter under Order 53 of the Rules of the Supreme Court 1999 Edition based on the Supreme Court decision in the case of the People v the Principal Resident Magistrate Ex parte Faustin Kabwe and Aaron Chungu. R34 4.13According to the learned Solicitor-General, the Supreme Cou r t endorsed the position of the High Court which is in the following terms ; summary, therefore, the decisions of the "In Court of the Principal. Resident Magistrate are subject to appeal. under the provisions of the judicial. Criminal. Procedure Code. Therefore, the review cannot 1.ie against circumstances of is not granted. " that Court 1.eave case this in The Supreme Court then made the following statement ; the that therefore, satisfied trial. "We are Judge did not misdirect himsel.f on a point of 1.aw, when he hel.d that the decisions of the Court of the Principal. Resident Magistrate are subject to appeal. under the provisions of the appeal. was Criminal. Procedure Code. according definitel.y misconceived. dismissed with costs to the state in this Court and in the Court bel.ow to be taxed in defaul.t of For avoidance of doubt , we direct agreement . that the criminal. trial. in the Subordinate Court must proceed". This is It 4 . 14 The learned Solicitor- General also argued that judicial review is not available where other avenues for redress or remedies exist and submitted that in this case alternative remedies are available to the Applicant . 4 . 15 . Order 53 practice note 53/14/27 Rules of the Supreme Court 1999 was cited as authority for the argument . The note provides as follows; R35 ''It is a cardinal. principl.e that, save in very exceptional circumstances, the jurisdiction to grant judicial review wil.1. not be exercised where other remedies were available and have not been used" . 4.16The Solicitor-General then went on to reproduce lengthy extracts from an English and a Zambian decision , in essence speaking to the cited notes from Order 53 . 4 . 17The learned Solicitor- General further reproduced Sections 20 , 25 and 27 of the Judicial Code of Conduct Act which provide for the complaint procedure and the procedure before the Judicial Complaints Authority . 4 . 18I will not reproduce the said extracts as I will just state my views on the same later . 4 . 19The case of Chama Mutambalilo v the Attorney-General 3 which speaks to the vesting of authority in the Judicial Complaints Commission to receive complaints under Article 236 (2) (a) (c) (d) and (e) of the Constitution was adverted to . • R36 5. 0 MYANALYSIS AND DECISION 5 . 1 There are two decisions rendered by the Principal Resident Magistrate which have given rise to the renewed application for leave to apply for judicial review. In both cases, the decisions are interlocutory and therefore not appealable as no interlocutory appeals lie in criminal trials . The two decisions are the refusal by the Principal Resident Magistrate to recuse himself from the criminal proceedings and the second one was to refer the matter to the High Court for the determination of a constitutional issue raised by the accused which was equally refused. (a) ILLEGALITY In both cases it is argued that the Principal Resident Magistrate had no discretion to refuse to recuse himself and not to refer the matter to the High Court for determination of a constitutional issue. 5.2. In view of the clear provisions of Section 6 (2) (a) of the Judicial (Code of Conduct) Act No 13 of 1999, which is couched in the mandatory terms, it is my considered view that the learned Magistrate, ought to have recused himself in view of the gravity of the allegation . • R37 5.3. The Applicant in this case raised the issue of possible personal bias by the learned Magistrate and whether or not the allegation was true should have been left to another tribunal . 5 . 4 As for the learned Magistrate's refusal to refer the matter to the High Court for determination of a Constitutional issue , it is my considered view that based on my understanding of Article 28 (2 ) (a) morphology vis a vis the juxtaposition of the words "may" and "shall", the learned Magistrate had no discretion since the constitutional issue was not at the instance of the Court but at the instance of the Applicant . 5 . 5 All this is said on the backdrop of the fact that both applications were interlocutory in nature within a criminal proceeding from which no appeal lies. 5.6 Can it be said that in view of the case of the People v the Principal Resident Magistrate Ex-parte Faustin Kabwe and Aaron Chungu (Supra) the Applicant should have waited for Judgment so that he could appeal the rulings in the interlocutory applications? 5.7 I think the facts in t he case of Principal Resident Magistrate are different from the facts in the application before us . ,, ,· R38 5 . 8 In the Principal Resident Magistrate Ex-Parte Faustin Kabwe case , the leave to move for judicial review was made at "No case to answeru stage when the Applicants wanted the Principal Resident Magistrate to be compelled to give reasons for his decision to place them on their defence . 6 . 0 ALTERNATIVE AVENUE 6 .1 Order 53/1 - 14/13 of the Rules of the Supreme Court 1999 Edition was also relied upon for the argument that the Applicant had an alternative avenue for redress ; namely the Judicial Complaints Authority. The argument is said to be supported by Sections 24 and 25 of the Judicial (Code of Conduct) Act. 6.2 What I see therein is the prescription of the Authority ' s functions (section 24(1)) namely; to receive complaints or allegations of misconduct. 6.3 Section 25(1) specifically authorizes members of the public to inform the Authority of any complaint against a judicial officer . 6.4 My understanding of these provisions is that they are administrative and not judicial . In the view I take, the import of Order 53/1 - 14/13 of the Rules of the Supreme Court is that the alternative avenue should R39 be such as would avail a party simi lar rel i efs to those available in judicial review . 6 . 5 I do not know of any provision that empowers the Judicial Complaints Authority to grant reliefs such as the Applicant was seeking in his two applications. 6 . 6 I am the r efore , of the firm view that the Applicant , in this case , did not have an alternative avenue for the type of reliefs he was seeking before the Subordinate Court. 6 . 7 For the above stated reasons , apply for judicial review . I would grant leave to M. J . SIAVWAPA COURT OF APPEAL JUDGE