Constitutional amendments and immigration reform
ARINTHIA S. KOMOLAFE
Published: Jul 24, 2013
Constitutional reform and changes to the supreme law of The Bahamas have dominated public discussion and the airwaves in recent times. It is anticipated that this extremely important discussion will continue as we approach the much-anticipated referendum scheduled for November 2013. The chairman of the Constitutional Commission noted that the topic of citizenship generated significant interest and scrutiny; ranking only behind the issue of the death penalty and the role of the Privy Council in our legal system.
The commission recognized the complexity involved and level of specialization required to properly address this vital subject in recommending the establishment of a Citizenship Commission. The comments of the commission that the future peace and internal harmony of the Bahamian society may depend on how well we handle this matter provides much food for thought. As the government carefully reviews the commission’s report in detail, it would be prudent to take a holistic view of the current immigration fiasco confronting The Bahamas with a view to addressing the same in the national interest.
Constitutional Commission recommendations
The Constitutional Committee in its report made certain recommendations relating to amendments to the Constitution while acknowledging the need for immigration reform. Among the recommendations made, there have been proposals to amend and/or delete various articles or language that discriminate against both Bahamian men and women. The commission in section 14 of its report concerning citizenship clauses found in chapter 11 of the Constitution that the articles relating to the acquisition of citizenship should be “recast in gender-neutral language” to provide for equality among Bahamian men and women. The commission also believes that Bahamian women should also have the right to transmit citizenship to their foreign spouses, but encourages strengthening laws and procedures that guard against marriages of convenience. Additional recommendations were made concerning matters of dual nationality and persons engaged in the diplomatic corps.
Perhaps the area that gains a lot of attention and rests at the heart of the Bahamian immigration debate is article seven which outlines the issue of children born in The Bahamas where neither parent is Bahamian. The child in such a case is entitled to apply for citizenship at the age of 18. The difficulty here lies with the unknown status of the child until he/she attains the eligible age. The commission expounded and gave examples of how certain persons who fall in this category and who are in the main persons of Haitian descent could be found to be stateless – more importantly, The Bahamas may be acting contrary to certain international conventions that we have adopted and signed on to as a nation in this regard.
The elephant in the room
There is no doubt that the socio-economic impact of the current immigration framework is significant and successive administrations of government seem to have not taken the bull by the horn on this pivotal issue of national interest for reasons deemed to be more political than nationalistic.
It is also no news as indicated in the report that persons of Haitian descent have been impacted the most by the current system and a number of them feel that they are stateless, belonging to nowhere or no one, disenfranchised and precluded from legally participating in or contributing to the Bahamian economy and society. It is interesting to note that taxpayers’ funds have contributed to the education and healthcare of these individuals, yet we are unable to utilize the human capital we have consciously or unconsciously invested in.
It is difficult to ignore their plight as many of these individuals are victims of circumstances inherited from their parents’ or guardians’ actions in search for a better way of life. Consequently, many of these individuals are resigned to an underground world, which if not addressed could compromise the health and security of ordinary Bahamians.
The commission in its research found that such individuals may be entitled to Haitian citizenship if either of their parents were natives of Haiti; however, second and other successive generations of persons of Haitian descent currently in The Bahamas may find that they may be stateless due to the interpretation of current provisions of both the Haitian and Bahamian constitutions. This writer agrees with the commission that more research must go into ascertaining the class of individuals who fall in this category as recommended at point 12 of section 14 of the report.
Confronting the immigration fiasco
In a previous two-part series titled the “Immigration fiasco”, this writer suggested that the government co-ordinate an amnesty program to ascertain the exact amount of illegal immigrants in the country. Such a program would require self-registration by the immigrant population without legal status whereby they would be given a temporary status or working visa as part of a comprehensive revised immigration policy. It seems apparent that any effort toward immigration reform without the necessary statistical or empirical data to form the basis of any proposed policy will prove to be futile.
Further, this writer also agrees with the commission’s recommendation as outlined at section 14.51 in the report that allows for the registration of persons born to non-citizens in The Bahamas if: (1) the child spends the first 10 years of his/her life in the country; (ii) either parent has permanent status (akin to permanent residence or ordinary residence), or subsequently becomes a citizen or acquires permanent residence; (iii) or where the child would otherwise be stateless if unable to claim nationality in the place of birth. What is unclear, however, is whether points (i), (ii) or (iii) ought to be taken together as a whole or whether a child would be entitled to be registered having satisfied either of the points suggested.
The commission’s recommendation if adopted and agreed upon by the Bahamian people will reduce the waiting period for affected individuals to register by at least eight years. It goes without saying that applicants will have to meet eligibility criteria and be subject to due diligence checks for fitness and propriety and/or penalties or fines.
Changes and priorities in a reformed system
The recommendation that an independent statutory or immigration board or committee should be established charged with the responsibility of considering applications for citizenship and asylum requests is a logical one. The removal of this ultimate power and responsibility from the executive branch of the political directorate should pave the way for more accountability and transparency of the process involved in the granting of Bahamian citizenship. The commission further recommends that decisions by such a body be ratified by the Cabinet.
The expressed view of the commission that the minister’s refusal of a request for registration under section 16 of the Bahamas’ Nationality Act should also be subject to review by the court is progressive and further reinforces a system of checks and balances in government.
There are economic benefits to The Bahamas in embarking upon immigration reform and the potential effects on our society cannot be overemphasized. The inability to adopt expedient immigration reform in specific areas will contribute to the expansion of an underground society, exploitation of foreign workers and decreased earning power by Bahamians as a result of low wages paid to illegal immigrants.
It is also imperative that measures are instituted to further secure our borders and prevent us from finding ourselves in this predicament in the future, further understanding that peace, harmony and unity of our commonwealth must be at the center of all reform initiatives.
• Arinthia S. Komolafe is an attorney-at-law. Comments can be directed at email@example.com.