General — 30 May 2014 — by Rowland A. Parks
COLA vs Elvin Penner adjourned to June 26

There appears to be unwillingness on the part of officials to prosecute Hon. Elvin Penner, the disgraced Cayo North East area representative accused of signing a Belize passport and nationality certificate for the unqualified South Korean criminal Kim Won Hong.

Despite a Supreme Court writ of mandamus directed to the Commissioner of Police, Allen Whylie, to conclude the police’s investigation into the matter, according to Citizens Organized for Liberty through Action (COLA), Whylie has refused to hand over the file to them, saying that the investigation has still not yet been completed.

Additionally, in a recent letter to COLA, the Auditor General, Dorothy Bradley, submitted that she could not turn over information she has gathered from an audit of the Immigration Department, saying that the report has to be handed to Cabinet and tabled in the House of Representatives first.

And the Ministry of Immigration’s so-called internal investigation led by Immigration Minister Godwin Hulse and his CEO, Candelaria Saldivar, has yielded “nada.”

Added to this mixture are some missing Immigration files.

Today was scheduled to be disclosure day in COLA’s private prosecution of the former Minister of State for Immigration, Elvin Penner, who was charged with two summary offences for his alleged violations of the Belize Passport Act and the Belize Nationality Act.

But when the parties gathered in the courtroom of Belmopan Magistrate Aretha Ford, attorney Kareem Musa, who is representing COLA, could only deliver a partial disclosure and implored the court to grant COLA an adjournment to pursue the evidence against Penner.

“The evidence is in the public realm. The Commissioner of Police says the investigation is still on-going, and the Director of Public Prosecution has not turned over the file to us. I am requesting an adjournment of no longer than one month to provide full disclosure,” Musa told the court.

Penner’s attorney, Ellis Arnold, S.C., however, objected to the material handed to him by COLA. He submitted that what was given to him does not amount to disclosure.

Arnold asked Magistrate Ford to strike out the case, because his client was not properly before the court.

But in his reply to Arnold’s submission, Musa told the court that “it is not the duty of counsel to determine that what was given to him is not disclosure.”

In response, Arnold said: “They are searching for evidence. They have none.”

“The minimum evidence must be before the court to justify Mr. Penner being here,” Arnold said. “You must now stop this abuse of the judicial process. It is time now for you to intervene,” Arnold told the Magistrate. “I humbly ask the court to strike out the matter,” he requested.

Ruling in COLA’s favor, however, Ford decided to grant the one-month adjournment to allow them to get the necessary disclosure evidence against Penner to continue the private prosecution.

After the hearing, Musa told reporters that after a month and a half, they received a correspondence on May 20, from ComPol Whylie, who told them that because the police’s investigation may lead to a public prosecution and that the investigation is still ongoing, he is not in a position to turn over the files to COLA.

“It is on that basis and on the basis that the DPP has written to us saying that she has absolutely no problem in turning over the file to us, once she receives it from the police,” Musa explained, “It is on that basis that I asked for an adjournment today.”

Musa added that while this may be a private prosecution, a lot of the evidence is in the public realm.

“We do rely heavily on what the police have gathered, and I think the Magistrate has realized that,” said Musa, “It is a very frustrating experience. I am not expecting to get the file, but I am hopeful that at the end of the day, the rule of law will prevail.”

Asked by Amandala what his next course of action would be, in terms of the private prosecution, if he does not get the file, Musa replied, “There are provisions in the Summary Jurisdiction Procedures Act under Section 30, which provides for the summoning of witnesses.”

“There are several witnesses who have gone on the media and disclosed that they have relevant materials, including the Prime Minister, including the Hon. Godwin Hulse, including the Commissioner of Police, who has the actual file. That will be the next step for COLA come June 26,” Musa explained.

On the question of the Penner file which recently appeared to have been lost in transit between the office of the DPP and the Police Department, Musa said “That was completely reckless on the part of the Commissioner of Police to come to this nation and say such a thing.”

“He has come to his senses now, saying that he has the file, but he won’t turn it over to us. That is his last words,” said Musa.

With respect to the missing Immigration files, Musa said they cannot do anything about that, but the Minister of Immigration can file criminal charges against the person who took the file out of the Immigration Department, if they can determine who took out the files.

“The Minister needs to step up to the plate and charge who stole the file,” Musa said.

Giovanni Brackett, COLA president, said that they are happy that their attorney has gotten another adjournment date, even though they see that the politicians and certain bureaucrats have done their best to frustrate the process.

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