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Bahamas could be ‘ordered’ to change gender equality laws

The Inter-American Commission on Human Rights (IACHR) could order The Bahamas to amend its laws to create gender equality regarding how citizenship is passed on from parent to child, Rapporteur on the Rights of Women and Persons of African Descent and against Racial Discrimination Margarette Macaulay told Minister of State for Legal Affairs Elsworth Johnson on Friday.

She also said that two failed referenda on the matter indicated a need for greater public education on the issues.

Macaulay made the comments at a hearing on the treatment of migrants in The Bahamas, which took place on Friday at the 172nd session of the IACHR in Kingston, Jamaica.

The request for the hearing was filed by Rights Bahamas in conjunction with Robert F. Kennedy Human Rights, which is headquartered in Washington, DC.

“There is a matter of the referendums in relation to the citizenship which I couldn’t understand, but I understand it is within your law that you must have that referendum,” she said.

“But you know that within our mandate, we can, in fact, if we do have a case presented in relation to that issue, that ultimately we could say, fine, that The Bahamas has to amend its law.

“You know that, we could.

“But we haven’t got to that stage yet. 

“I am dropping a hint for civil society.

“But we don’t really wish for things to get to that stage. That’s why we like to work in partnership with the state in resolving these things.” 

Macaulay added, “The two referendums, it is commendable that these attempts were made under the laws as you have them but if you see the mischief which exists in the circumstance that you wish to correct.

“You clearly recognize it, that’s why you used the referendum system twice.

“And twice means that you need to do education to your citizens about the mischief, clearly.”

The issue was raised when Rights Bahamas identified statelessness of children of migrants as a problem created by Bahamian legislation.

In its presentation, the human rights group pointed to gender inequality in the constitution as it relates to the ability of Bahamian women and men to pass on citizenship to their children and spouses.

However, Johnson argued that Bahamians are those most often affected by these constitutional issues.

“Dealing with the claims that The Bahamas has prohibitive anti-citizen provisions, it is no secret that the constitution of The Bahamas is not gender-neutral, and treats men and women differently and unequally with respect to their ability to transmit citizenship to their children and spouses. But, in fact, the large number of persons affected by these gender provisions of the constitution of The Bahamas are Bahamian men and women and their descendants, not migrants,” he said.

“In this regard, the government has spared no efforts in trying to amend the constitutional provisions, and in recent times, we’ve had two referendums, both of which went to the people and failed.”

Johnson also highlighted the government’s draft Nationality, Immigration and Asylum Bill, 2018, which is out for public consultation, which would establish the right to live and reside in The Bahamas up until the age of 18 for children born in the country to foreign parents, as well as those children born to Bahamian parents who have been impacted by the constitution.

The first referendum on the matter of gender equality in the constitution was rejected by voters in 2002.

In June 2016, another referendum was held to address the issue.

Bahamians voted on four bills to amend the constitution.

The first bill would have given children born outside of The Bahamas to a Bahamian mother and a non-Bahamian father a right to automatic citizenship at birth.

Presently, the constitution provides that a child born in wedlock outside The Bahamas to a Bahamian mother and non-Bahamian father does not have the right to automatic citizenship at birth. However, a child born in wedlock outside The Bahamas to a Bahamian father and non-Bahamian mother has the right to citizenship at birth.

The second bill would have allowed a foreign man married to Bahamian woman the same access to citizenship that has always been available to foreign wives of Bahamian men under the constitution.

The third bill would have given children born out of wedlock to a Bahamian father and a non-Bahamian mother the right to automatic citizenship at birth.

The fourth bill would have added the word “sex”, defined as male and female, to article 26 of the constitution so that it would be unconstitutional for Parliament to pass laws which discriminate on the basis of sex and deny equal treatment under the law.

Bahamian voters overwhelmingly rejected all four bills.

“…The situation is this, as a result, there are so many stateless children who were born in The Bahamas and cannot get citizenship because they cannot provide the sufficient documentation in order to get it,” Macaulay said.

“And as to say, even when they’re 18, they have to apply for citizenship within a certain time or they’ll miss the boat if they exceed that time, this is extremely difficult to accept, and the commission wants to work with The Bahamas to see how we can resolve this issue.”

Macaulay also requested a copy of the Nationality, Immigration and Asylum Bill, 2018, so that the IACHR could analyze it and make recommendations to the government. 

She emphasized the commission’s desire to work with the government and civil society to address the issues together.

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