The Tribune

The Bahamas’ leading human rights lawyer continues his analysis of the Minnis administration’s December 31 deadline for illegal immigrants to leave the country.

By Frederick Smith, QC

Most of our politicians still believe a tough stance on immigration can win elections. Especially when struggling with low popularity or seeking to deflect from some high profile blunder, governments continue to turn to highly visible yet woefully ineffectual “crackdown” tactics. Clearly the political class has not been paying attention, as – sadly for them – this well-worn gimmick no longer works, if it ever really did.

Over the past four decades, the PLP in particular has specialised in the art of politically-timed high profile raids, illegal roadblocks and aggressive round-ups. Nor has the FNM been adverse to indulging in these tactics when they believed it to be expedient.

An ominous example

But just consider what happened to the last PLP administration. Two-and-a-half years before having to face the electorate at the polls again, they launched what was perhaps the most aggressive, inhumane and impractical immigration crackdown ever in The Bahamas.

They turned the presumption of innocence upside down and created a police state where anyone, anywhere and at anytime could be arbitrarily stopped, questioned, searched and commanded to produce “papers” showing they had “status”, failing which they would be carted away to the Carmichael Concentration Camp and denied all due process.

On November 1, 2014, armed officers from the Immigration Department and The Royal Bahamas Defence Force began descending on sleeping communities in the dead of night, terrorising residents and rounding up people indiscriminately, Bahamian and foreigner alike.

What followed were more aggressive round-ups and swift deportations, including the expulsion of minors - born here to migrant parents - who have a right to be registered as Bahamian citizens. As is always the case, there was a spike in reports of physical and sexual abuse of detained persons, but the real infamy of this policy was it mobilised and encouraged xenophobic feeling throughout the country – in both the public and private sector alike – leading to countless cases of casual bigotry against those who looked or sounded “foreign”.

Women were denied prenatal care at public clinics because of their heritage; prospective college students were turned away at the door; the elderly were denied National Insurance payments because of their last name. This was illegal, unapologetic and blatant state institutionalised terror and discrimination.

The policy also brought enormous international repercussions and severely damaged the reputation of The Bahamas abroad. The crackdown became the subject of hearings before the Inter-American Commission on Human Rights (IACHR), a hugely important regional body which had already sanctioned The Bahamas for our inhumane and degrading migrant detention conditions. We were openly criticised by Amnesty International, The Robert F Kennedy Center for Human Rights and other organisations, and were lambasted on the front page of the New York Times for blocking migrant children from attending school.

The PLP, and in particular former Immigration Minister Fred Mitchell, made immigration into the biggest show in town. What was the result? The most devastating election defeat in Bahamian history. This was also supported 100 percent by the FNM which publicly stated it was “standing shoulder to shoulder with the PLP”, this to show, in the run up to elections that they were not weak on immigration. The harsh immigration policy was said to be popular with the public, yet it failed to actually impact voting patterns. Clearly, there are other issues of far more importance to today’s electorate than undocumented migrants.

Know your voting blocs

Given the disastrous consequences of the PLP’s failed crackdown, it was astounding to hear Prime Minister Minnis follow in Mitchell’s footsteps and issue an ultimatum to “illegals” – get out of the country by December 31, or else!

This was clearly and transparently yet another attempt to distract the attention of the electorate and drum up support. This misguided stunt is at least as doomed to fail as Mitchell’s Purge. In fact, given the make-up of today’s voting blocs, the impact on the FNM may be even more profound and catastrophic.

The composition of the Bahamian electorate is of course fluid and changeable, never more so than in the last 15 years. Nevertheless, certain truisms persist. One is that, for the time being at least, around 30 to 35 percent of voters remain steadfast supporters of the PLP and identify with its traditional symbols and message. A significant percentage of this is drawn from grassroots communities, augmented by professionals who make up what is known as the “PLP elite”.

While the PLP must always attract some middle class voters, they have tended to concentrate on shoring up this base, and it is precisely to this crowd their immigration pantomime is directed.

The FNM on the other hand, has less of a solid core, as we saw in 2012 when the DNA was able to erode it significantly within a very short space of time. Still, it can roughly be said the current governing party has relied more on the support of middle-class families and white-collar professionals, as well as their own established and entrenched elite.

Of course, these are only rough outlines – many grassroots Bahamians support the FNM and there is a healthy element of middle-class voters within the ranks of the PLP. Nevertheless, as a general outline of the political scene today, I believe this to be a fair assessment.

A grave danger for the FNM

Now, it just so happens Bahamians of Haitian descent, while occasionally changeable as a voting bloc under the right circumstances, have traditionally tended to be reliable supporters of the FNM, in particular under former Prime Minister Hubert Ingraham. No doubt this has much to do with the PLP’s cruel approach to immigration issues over the years.

Though many Bahamians don’t like to admit it, a significant portion of the current middle class in this country are citizens and voters who descended from Haitian migrants – some of them documented, some of them not.

The members of this bloc may not advertise their feelings on the issue, no doubt for fear of further discrimination, but they feel very strongly about the manner in which successive governments have abused people who share their heritage.

And herein lies a grave danger for the Minnis administration: they stand to gain far less than the PLP from playing immigration brinksmanship games, yet they have so much more to lose. The FNM are kidding themselves if they think any of the opposition’s core will switch sides over immigration. Why would they, already having enforcer-in-chief Fred Mitchell in their ranks?

Yet the FNM risks alienating one of the few core voting blocs they could rely on in the past. The PLP may no longer gain anything from their crackdowns, but nor do they lose anything. The same cannot be said for the FNM.

Outside the law

Political maneuverings aside, we must keep in mind the tactics used in all the crackdowns of the past, and in Minnis’ threatened crackdown, are actually illegal.

First of all, there is no law which requires anybody to walk around with proof of citizenship and Immigration officers have no right to demand you produce such proof, or to detain you if you cannot. This is a flagrant violation of the constitution, which guarantees freedom of movement and that you are presumed innocent until proven guilty. It is illegal to arrest someone, hold them and make them prove something.

For the very same reason, the indiscriminate roadblocks and checkpoints which Immigration enjoys setting up on our roads are also illegal, a fact that has been explicitly stated by the Supreme Court of The Bahamas in a landmark ruling.

You can only be lawfully arrested if they have reasonable probable cause to believe you committed a crime. For example, if you are driving the same model and colour car as someone wanted in connection with a robbery. The blanket stop, search and question policy violates everyone’s rights and means the government is operating outside the law.

No political will

So far, the focus has been on the political payoff, or lack thereof, of immigration crackdowns which are pursued as nothing more than public relations exercises for struggling governments. Certainly, there can be no question these policies have failed to produce any actual results, as undocumented migrants, primarily from Haiti, continue to arrive in significant numbers.

Meanwhile, such tactics have become a vehicle for systemic corruption and exploitation, and the only tangible results are the loss of hundreds of millions of dollars in revenue, the establishment of an entrenched culture of bribery, and the creation of a sub-class of marginalised and “illegal” citizens with all the attendant social challenges.

Up until now, this has not presented a problem for whoever happens to be the government of the day. As long as leaders continued to believe there was political capital in having a strong stance on immigration, they saw no reason to bring undocumented migration under control. Why fix a problem that keeps on giving?

A real solution to immigration

Now that the old approach has become politically unproductive, perhaps politicians might consider a real solution to the problem; one capable of producing tangible results in the long-term.

The first step would be to move immediately to clear the backlog of applications for citizenship and other forms of status that have lain dormant for decades.

Aside from the gross violation of the rights of these people during crackdowns, it is insanity to send armed, aggressive officers into communities in which thousands of undocumented migrants mingle with thousands of others who have various claims to status, including children with the right to apply for citizenship in the future. Chaos, wrongful detentions and the wholesale abuse of people’s rights are the only possible results.

The second step would be to vastly improve the efficacy of border control, part of which involves arresting and prosecuting immigration officers who are suspected of taking bribes to look the other way as undocumented migrants cross into our territory.

Once the government has done the above, the comparatively few people left who are still suspected of being undocumented migrants can be brought before the courts in a humane and orderly fashion, based on demonstrable probable cause and not on discrimination, then given a chance to argue their case, all of them being considered innocent until proven guilty.

The time has come for both political parties to stop playing politics with immigration – if for no other reason than their own political survival. This is much more so the case for the FNM than it is for the PLP.

However, whichever party ushers in a real and lasting solution to this issue that is humane, fair and effective might be capable of gaining a durable and lasting political advantage. It also happens to be the right thing to do.