By Nicolette Bethel
The Commonwealth of The Bahamas is amending its 41-year-old constitution. I’m using the present continuous tense, because the amendment is a process, one that began some twelve years ago in 2002. Back then, a constitutional referendum was held and failed—the proposed amendments to the Constitution were rejected by the general public. But the need for amendment has persisted, and ever since 2012 a constitutional referendum has been imminent.
The main issue at hand is the question of equality between the sexes under the constitution. The most striking instance of inequality in our constitution is that between men and women in relation to their ability to pass on Bahamian citizenship, but, as the most recent Constitutional Commission has noted, the inequalities in the current constitution are manifold. This Commission has narrowed them down to the following categories: inequality between men and women, between children and between married and single people. To this we can add inequality based on place of birth.
The last item on that list notwithstanding, the Constitutional Commission has drafted four bills which, if passed by the two Houses of Parliament and agreed to by the general public, will make Bahamian citizens more equal than non-Bahamians by seeking to address the first three inequalities.
Put simply, the main inequalities are as follows:
- Married Bahamian men and unmarried Bahamian women automatically pass their citizenship on to their children at birth.
- Bahamian women cannot pass their citizenship on to their overseas-born children at birth, if they are married to a non-Bahamian.
- Single fathers may not pass their citizenship on to their children, as the constitution defines children born out of wedlock as not having a father.
- The non-Bahamian wives of Bahamian men are afforded the right to be granted citizenship upon application.
- The non-Bahamian husbands of Bahamian women are afforded no such right.
The issue, however, is complicated by several other requirements that make the passing on of citizenship from parent to child less straightforward. Primary among these is a clause which addresses the institution of marriage. Under this clause, unmarried Bahamian mothers are defined as “fathers” for the purpose of passing on their national status to their babies. This particular clause also nullifies single Bahamian fathers’ ability to pass on their citizenship.
The four bills drafted to amend the constitution seek to rectify the situation. They are designed to promote equality for children, among men and women, and to enshrine the principle of equality throughout the constitution. The first of these seeks to award the children of both Bahamian men and women citizenship at birth. The second entitles all non-Bahamian spouses of Bahamian citizens to Bahamian citizenship. The third allows single Bahamian fathers to pass their citizenship on to their offspring. And the fourth bill seeks to enshrine the principle of equality between the sexes in the constitution by adding the word “sex” to the list of categories under which discrimination is prohibited.
On the surface, this seems a simple enough task. It is complicated, however, by a public discussion which has focused mainly on the fourth amendment—the one which is, in its own way, the simplest of the proposed changes: the adding of “sex” to the categories prohibiting discrimination.
The current categories include race, place of origin, political opinions, colour, and creed, but currently exclude sex. The opponents of this amendment have construed the word “sex” as relating to sexual orientation, and have gained much traction in the eyes of the public by claiming the constitutional amendments are designed to permit same-sex marriage. If this Article is amended, their story goes, Bahamians will be giving the government permission to allow same-sex marriages to take place. These arguments obscure the principle of equality between the sexes and make this clause appear the most controversial—which also makes it the most threatened as the time for the referendum draws near.
And there are other questions of inequality that have not been addressed. Most notable among them is the question of birthplace and its effect on the awarding of citizenship to Bahamian children. There are two elements at work here. The first is the fact that birth on Bahamian territory is no avenue to citizenship if neither of one’s parents is Bahamian. The most that a person born in the Bahamas is entitled to is the right to be registered as a citizen upon making application at the age of 18.
The second, more difficult challenge, is the kind of citizenship one is granted if one is born abroad to Bahamian parents. One peculiarity of the current constitution which has not been put forward for amendment, is that children born to Bahamians abroad, even if they are classified as citizens, have no automatic right to pass their citizenship on to their own offspring. In other words, children born to Bahamians studying or working abroad, or giving birth in another country for reasons of health, may be classified as Bahamian citizens. However, if they themselves have children outside of The Bahamas, those children are not Bahamians at birth, and have no right to claim Bahamian citizenship whatsoever.
The issue is complicated, and most Bahamians are not aware of this stipulation. Most of the discussion relating to citizenship and our constitution has focused on the next generation—on our children. We have not yet thought about our grandchildren. What the current situation does ensure, though, is that not one of us, whatever the outcome of the referendum and whatever amendments are made to the constitution, can be confident that our grandchildren will be Bahamians at birth.
Let me bring this home. In my family, I have cousins who were born abroad because their Bahamian father was studying in the UK at the time of their birth. They are Bahamian. Their children, though, unless they are born in The Bahamas, are not.
Similarly, I have a nephew who, once again, was born in Canada when his Bahamian father was studying. He is a Bahamian, but his children, unless they are born in The Bahamas, will not be.
Finally, I have another young cousin who was born in Miami while his parents were there getting medical treatment for their older son. That cousin, even though both his parents are citizens, will not be able to pass on his citizenship unless his children are born in The Bahamas.
And none of these issues even begins to address the question of statehood for the many children of undocumented immigrants (most of them of Haitian origin) in The Bahamas. Most of those children currently have no national status at all. It is a situation which must be addressed, but which has not been touched upon in the present referendum.
So critical is this question of citizenship that a 2013 Report on the constitution recommended appointing a second commission altogether to focus exclusively on the issue of statelessness in The Bahamas, as the commissioners did not feel they could give it the necessary attention. No such move has yet been made.
The constitutional amendments are long overdue. They will go some way to equalizing the granting of Bahamian citizenship to children, and to even out the distinction between male and female, married and unmarried, that currently exists. But they are only a beginning. Serious issues of inequality remain, and the climate in which the discussions regarding the referendum is taking place has grown fraught with misdirection. The popular interpretation that the addition of “sex” to the categories where discrimination is prohibited is an endorsement of same-sex marriage plays into a deep-seated homophobia in Bahamian society. But it’s also worrying for another reason: it is entirely possible that this relates to homophobia only tangentially, and is in fact a strategic move to campaign for constitutionally-sanctioned misogyny without openly admitting that fact.
Nicolette Bethel is a Bahamian teacher, writer and anthropologist. She was the Director of Culture in The Bahamas, and is now a full-time lecturer in Social sciences at the College of the Bahamas. She blogs at Blogworld and tweets at @nicobet.