By Marion Ali
The private prosecution of former government minister, Elvin Penner, has reportedly hit an impasse, and the plaintiff, Citizens Organised for Liberty through Action, say they might subpoena Prime Minister Dean Barrow and others to give evidence in court if necessary.
The announcement came three weeks before the case is called on Thursday, May 29, at which point COLA is expected to furnish the defense with whatever evidence it has against Penner.
At a COLA press conference on Wednesday, attorney Kareem Musa told reporters that there has been no cooperation from a number of public offices crucial to the case. These, he said, had informed that they also are investigating the passport/visa scandal.
Of vital importance to the prosecution is the case file, which Musa said he has formally requested in writing from Cheryl-Lynn Vidal, Director of Public Prosecutions.
Musa said that Vidal’s latest response in a meeting last Friday was that the file was still with the police, after she had re-sent it to investigators for inclusion of additional evidence.
That is also what the DPP told The Reporter when we contacted her on Thursday. “I am not in possession of the file. It is with the Police Department. I have forwarded the request to them and written to them asking that they facilitate,”she said.
COLA’s primary source for the evidence against Penner lies under the jurisdiction of Commissioner of Police Allen Whylie. However, Musa explained that the Commissioner has not responded to any of his requests for disclosure of the evidence.
Two other offices with which COLA has a contention over the investigation are the Offices of the Auditor General and the Office of the Ombudsman.
The Auditor General, Dorothy Bradley, Musa says, referred him to her Auditor General’s Report to the National Assembly, something she must, do as a matter of principle.
“We at no point…asked the Auditor General for her report…What we asked for in our letter was for material and evidence gathered – something separate and apart from her report,” Musa said.
The Reporter also contacted Bradley on Thursday for her reaction to Musa’s comments.
Bradley said that the information that Musa requested is part of a report that she compiled, following an investigation that she conducted at the Immigration Department on the scandal.
That information, she told us, is an “exempt document” – not for public consumption – since there is a procedure that she must follow.
“I normally report to the National Assembly…the channels are the Ministry of Finance, which then forwards the reports to the National Assembly. That (referring to Musa’s request) is not the channel for my reports.”
Musa argued against this, saying that nowhere under Section 22 of the Freedom of Information Act does it make provision for denial of access of documents on the basis of it being exempt.
“I do not have any immunity,” Bradley said. “So if I put anything out there I can be taken to court.
“Those persons (referring to the ones named in the report) must be given a chance to defend themselves before the matter is made public.”
She explained that when COLA wrote to her requesting the evidence, she sought legal guidance from the Office of the Ombudsman and received advice not to share the evidence.
That office too came under fire from the attorney for COLA, who said that he has lost all confidence in the integrity of the two institutions.
But Musa and COLA are not deterred by the hurdles that they face. Musa revealed that there are options at his disposal, and if he must ask the court for an adjournment until he can come by the evidence that he needs to proceed, he will do that.
The avenues that he can explore include, under the District Court Act, to subpoena people who are in possession of evidence material. In this case, Musa says he is prepared to subpoena anyone, including the Prime Minister, who soon after the scandal broke saw it fit to remove Penner from the Cabinet and to strip him of his ministerial rank.
Musa recalled: “The Prime Minister has said that he has seen certain things that led him to dismiss Elvin Penner. We want those individuals to come to court.”
It is a coure of action that Musa says he is prepared to take if the need arises.