General — 17 February 2015 — by Rowland A. Parks
Supreme Court Appeal of Penner private prosecution decision

BELIZE CITY, Fri. Feb. 13, 2015–On September 20, 2013, the Office of the Prime Minister issued a press release that shook the country by announcing that the Hon. Elvin Penner, Minister of State in the Ministry of Immigration, had been fired from Cabinet due to his apparent connection to the illegal issuance of a Belize passport.

The Barrow administration, however, seemed to impede the levying of criminal charges against the disgraced area representative for the Cayo North East constituency—and not even a Supreme Court-issued writ of mandamus to the Commissioner of Police was able to move the process forward.

Last year, two members of Citizens Organized for Liberty through Action (COLA) — Giovannie Brackett, the organization’s president, and Nidal McLaren — filed a criminal complaint against Penner in a private lawsuit in Belmopan.

In July 2014, Belmopan Magistrate Aretha Ford struck out the case on a technical ground, citing “want of prosecution” when she refused to allow Commissioner of Police Allen Whylie to be summoned as a witness under the provisions of the Summary Jurisdiction Procedures Act. COLA appealed Ford’s decision.

This morning, COLA’s appeal of Magistrate Ford’s decision came up for hearing in the Supreme Court of Chief Justice Kenneth Benjamin. The matter had to be adjourned, however, because Penner’s new attorney, Tricia Pitts-Anderson, who was retained only two days ago, requested an adjournment so that she could prepare for the case.

Attorney Kareem Musa, who is prosecuting the case for COLA, did not object, and Chief Justice Benjamin adjourned the case to February 27, when a full hearing is expected.

CJ Benjamin found it “unacceptable” that the accused Penner was not present for this morning’s hearing. Penner is required to be present in court when the case comes up in two weeks, however.

After the hearing, Musa told Amandala that he was grateful to have gotten a hearing date, since the application to appeal the magistrate’s decision was filed last August.

Musa said that it was the Chief Justice who had ordered the writ of mandamus against the Commissioner of Police, so it is only fitting that this case be heard before him.

“We have only been informed this morning that Mr. Penner has had a change of attorney, and his new attorney, Tricia Pitts-Anderson, has only received the case file yesterday. We here at COLA are ready to proceed,” Musa explained.

“We have submitted our grounds of appeal and made out skeleton arguments,” he further said.

Musa added: “Mr. Brackett and Mr. McLaren made an application to the court for the Commissioner of Police, Mr. Allen Whylie, to be summoned as a witness, under Section 30 of the Summary Jurisdiction Procedure Act, which says that if on the complaint a statement is made which then prompts the magistrate to summon, she has that discretion to summon, based on evidence that is adduced before the court.”

Musa said that both complainants in the case, Brackett and McLaren, have adduced that evidence, but Magistrate Ford did not exercise that discretion and she gave several reasons why.

“So that is what we are actually challenging in court in two weeks’ time,” said Musa.

Musa said that Magistrate Ford was under the impression “that we had asked her to review the writ of mandamus, but at no time did we ask her to review the writ of mandamus.

“In that regard, she stated that she did not have jurisdiction to summon Mr. Whylie, but we respectfully disagree with her. That section that we are relying on provides for the magistrate that very discretion and jurisdiction to summon anybody, who is in possession of material evidence,” Musa said.

“The Belize passport that was issued to Won Hong Kim forms a huge basis in the criminal case against Penner,” Musa said, adding that “if we were to have a retrial at the Magistrate’s Court, that passport would have to be in evidence.”

“Another reason Magistrate Ford gave for not exercising her discretion in summoning Commissioner Whylie, is that she said it is the duty of the complainant to summon the Commissioner, but if you take a careful reading of Section 30, it states that that discretion is for the magistrate to exercise,” Musa pointed out.

“Under that particular section, it was up to the magistrate to summon, not the complainant,” Musa explained.

Musa said that he is very thankful that the case has reached this far, because it is a very serious national issue that has been on the back burner for too long.

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