The Tribune

By PACO NUNEZ

Tribune News Editor

pnunez@tribunemedia.net

THE chances of a peaceful future for the Bahamas may depend on whether the difficult questions of citizenship and the dangerous problem of stateless people is dealt with, the Constitutional Commission has warned.

Noting the “perceived unfairness” in the system as it currently stands, and the serious implications of a very large number of people living in the country without status, the commission recommended that a special task force examine citizenship issues and report back as quickly as possible.

“This must be made a matter of high priority for the government. The future peace and internal harmony of Bahamian society may well depend on it,” the report said.

“The commission cannot overstate the enormous psychological, socio-economic and other ill-effects that result from leaving large groups of persons in limbo in relation to their aspirations for Bahamian citizenship.

“Not only are the affected individuals badly damaged and marginalised, the entire society is put at risk and its future compromised by having within its borders a substantial body of persons who, although having no knowledge or experience of any other society, are made to feel that they are intruders without any claim, moral or legal, for inclusion.

“Such feelings of alienation and rejection are bound to translate into anti-social behaviour among many members of what is, in effect, a very large underclass in our society,” the report said.

The commission said citizenship was a top priority among those it interviewed prior to compiling the report – second only to the death penalty.

Among the recommendations in this area were that all provisions relating to the acquisition of citizenship and its transmission to children be expressed in “gender-neutral” language, so as to remove any sign of discrimination against women.

“Most persons who spoke to the commission or made presentations were of the view that the discriminatory provisions ought to be removed, although there were occasional instances of a clinging to some of the patrilineal provisions in the current constitution,” the report said.

“The point on which there was the greatest divide related to the general provisions providing for citizenship. There could be found no agreement on this issue, particularly with regard to how to treat persons born in the Bahamas to non-Bahamian parents . . . a group that includes the numerically large native-born children of Haitian immigrants to the Bahamas.”

The commission said given the size and complexity of this problem, its work was only preliminary and must be continued.

But, the report emphasised, “the commission is not in favour of automatic citizenship by reason only of birth on Bahamian soil.”

Among its specific recommendations in this area were that:

• the reference to filius nullius, (child of no father) be deleted to remove any difference in treatment based on the marital status of the parent.

• Bahamian men and women have the equal ability to transmit citizenship to their foreign spouses under Article 10, except that there should be provisions (preferably in the Nationality and Immigration Acts) to guard against marriages of convenience.

• amendments be made to ensure that those persons born to Bahamians outside the Bahamas, as well as persons born to non-Bahamians in the Bahamas would not be rendered stateless.

• the ability of a Bahamian father or mother to transmit their citizenship to their children born overseas should be a right not conditioned on how the parent acquired citizenship.

• the provision that applications for citizenship must be submitted within 12 months after the applicant turns 18 be reconsidered.

• changes be made to ensure both men and women can pass on Bahamian citizenship to their children, regardless of marital status.

• the position with respect to dual citizenship or nationality should be stated, and in particular persons who are eligible for Bahamian citizenship should not be denied registration simply because they possess another nationality. Renunciation of another citizenship should also not be made a condition to the grant of citizenship.

SIDEBAR - The issue of statelessness

From the section of the commission’s report on citizenship

The commission notes, and it has also been drawn to its attention in the presentation from the United Nations High Commissioner for Refugees (UNHCR), that several provisions of the constitution might have the effect of creating a class of persons who are stateless.

The 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any state under the operation of its laws.”

As was further indicated in the submission from the UNHCR, these provisions of the constitution are not only “contrary to the ICCPR and CEDAW, but also problematic in light of the Bahamas’ obligations pursuant to the CRC (Convention on the Rights of the Child).”

The most significant of these under our constitution is Article 7 which operates to reduce many persons to a situation of effective statelessness, as the persons who are primarily affected are either unwilling or unable to avail themselves of the other nationality to which they are entitled.

Needless to say, the majority of persons who fall into this category are children born in the Bahamas to Haitian parents.

The issue of statelessness arises in respect of this category of persons as set out below. The Haitian constitution provides for persons to acquire nationality through descent, but only if either of their parents is native-born, and have never renounced their citizenship (Article 11, 1987 Constitution of Haiti).

Thus, those persons born in the Bahamas to a native-born Haitian parent who has not renounced Haitian citizenship would become Haitian nationals at birth and retain it indefinitely thereafter.

But if their parents are not native-born or have renounced, they would effectively be stateless. Thus the right to claim Haitian citizenship by descent is limited to the first generation.

Even where persons falling into this category are entitled to Haitian citizenship, most choose not to acquire Haitian passports, as in any event they would be required to renounce that citizenship at 18 to acquire Bahamian citizenship.

The Haitian Constitution forbids dual Haitian and foreign nationality.

Children born abroad to a Bahamian parent in circumstances where they are unable to acquire the nationality of the Bahamian parent may also be at risk of statelessness, at least until they reach the age of majority.

For example, under Article 8, the right of a father to transmit his citizenship is not available if he himself acquired his citizenship by descent and was not native-born.

Similarly, with respect to a Bahamian female married to a foreign man, the child may be rendered stateless (at least until 18), if the father is unable by the citizenship rules of his country to transmit his citizenship, and if citizenship is not available by birth in the place where the child is born.

Effects of statelessness

The commission cannot overstate the enormous psychological, socio-economic and other ill-effects that result from leaving large groups of persons in limbo in relation to their aspirations for Bahamian citizenship. Not only are the affected individuals badly damaged and marginalised, the entire society is put at risk and its future compromised by having within its borders a substantial body of persons who, although having no knowledge or experience of any other society, are made to feel that they are intruders without any claim, moral or legal, for inclusion. Such feelings of alienation and rejection are bound to translate into anti-social behaviour among many members of what is, in effect, a very large underclass in our society.

The representatives from the Haitian community, in a most frank and open way, shared some of the effects they and others in the Haitian community have suffered:

• Discrimination

• Unable to open a bank account

• Feeling no sense of belonging and feeling rejected

•You feel as if you are the problem

• Not allowed to work in certain jobs

• Young people going through the transitory state are taken advantage of and abused by the authorities

• Many stateless young people feel like aliens not just because they are not automatically entitled to citizenship in their birth country but they also do not feel welcome in the country of their parents’ birth. Essentially, these people become virtually stateless in their own country of birth, the consequence is despair and frustration.

• No opportunity for scholarships afforded to all other children. “These children are cursed to a lifelong penalty and stigma,” one said.

This is obviously a most untenable position in which to place individuals who were born in the Bahamas, have no connection (other than ancestral) to any other country, and have no intention of residing anywhere else.

In this regard, the commission notes the warning of noted Bahamian social scientist, Dr Dawn Marshall, in her classic study on Haitian migration to the Bahamas. Although published in 1979, it is as timely today as it was then:

“The study of Carmichael Road Haitians indicates that many children are being born in the Bahamas who in a decade or two will be claiming their rights as Bahamian citizens. Not all of these native-born Haitians will docilely accept the denial of their rights. It is time, then, that the Bahamas government begins to think about the future of these potential citizens and not condemn them to personal destinies of isolation and relative deprivation.”