By Marion V. Ali
The private prosecution against Elvin Penner, former Minister of State in Immigration, is over, after it was thrown out last week for lack of evidence, but the prosecution, headed by COLA, has up to August 14 to appeal the Magistrate’s decision.
There is also the possibility that Penner will be charged again criminally by the Office of the DPP.
COLA will appeal Magistrate Aretha Ford’s decision because it feels that she erred when she did not allow evidence, which was the written order of the Writ of Mandamus against Police Commissioner Allen Whylie, to be allowed as evidence given by COLA President Geovanni Brackett against Penner.
The activist group, through its attorney, Kareem Musa, was trying to establish that even with the order of a supreme court, Commissioner Whylie failed to comply with and hence, the private prosecution, which relied heavily on the evidence that would have surfaced, could not proceed.
“The Mandamus order can only force Whylie to carry out to completion the investigation into the incidents at the Immigration and Nationality Department,” Musa stated, “but there is no time limit that the judge could have placed on Whylie, and Mr. Whylie is using that to his advantage.”
Musa, has told The Reporter that whenever the police
investigation is completed, Allen Whylie, the Commissioner of Police will have to turn the file over to the DPP and she can then institute a new charge under section 178 of the Criminal Code. Musa says that in addition to other charges, Penner can be charged with “Theft” upon the DPP’s instruction, for allegedly walking into the Immigration and Nationality Department in early September of 2013 and taking away the Kim Won Hong file and others which he had signed.
This was revealed in the Auditor General’s leaked report to COLA, a statement that was given by Ady Pacheco, a senior officer at the Immigration and Nationality Department and recorded in the report.
Musa says that while the Commissioner did not produce the case file for COLA’s private prosecution, “his (Whylie’s) investigation cannot go on forever. There is evidence out there that the Commissioner of Police has evidence that ought to have been turned in pursuant to section 30 of the Summary Jurisdiction Procedure Act.”
Musa also questioned the Prime Minister’s decision to give Penner the power to sign nationality certificates and Belizean passports.
“I have done my research and I have found that nowhere in our constitution or in our laws that allows the prime minister to have done what he did…the Governor General would have had to approve that,” Musa contends.
Meanwhile, Prime Minister Dean Barrow, in answering a question on why Whylie appeared in the Supreme Court with a lawyer from the Attorney General’s Ministry, said “The Commissioner of Police is a public servant…when process is issued against a public official it is the obligation under law for the Attorney General to represent such a public servant. There is no way in the world that any public officer is going to be required to contract the services of a private attorney and pay for those services.”
If he had been convicted on the summary charges, Vouching the Fitness of Won Hong Kim and Making a False Statement in a Material Particular, Penner could have faced maximum sentences of a year for each charge of faced a fine.