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Dame Joan: Expand the Nationality Act

‘Children born to Bahamian women abroad should be registered as citizens’

Former Court of Appeal President Dame Joan Sawyer said yesterday the children of Bahamian women born abroad should be permitted to be registered as citizens of The Bahamas at birth.

Dame Joan supports the expansion of the Bahamas Nationality Act to deal with the issues raised in the two failed referenda in respect of this specific citizenship matter.

“Such an expansion of the Nationality Act should include express provisions for the registration of the birth of children born abroad to Bahamian men as well as Bahamian women married to non-Bahamian men at the nearest Bahamian embassy or consulate within, say, 21 days of the child’s birth,” Dame Joan stated.

“Such registration should be evidence of the citizenship of that child as Bahamian from birth just as children born here to a Bahamian parent are citizens of The Bahamas and the evidence of that citizenship is the birth certificate.”

Dame Joan expressed that position in a 2019 paper examining the Nationality, Immigration and Asylum Bill as it was then proposed.

She repeated that view yesterday when asked her thoughts on the Davis administration’s plan to bring a citizenship bill, which it said would effect gender equality in the constitution.

That bill has not yet been circulated for consultation and as such Dame Joan stressed that she has not seen it.

But she pointed out that the Bahamas Nationality Act currently empowers the minister responsible for nationality and citizenship to use his discretion in registering minors of Bahamian citizens as citizens.

Under Section 6 of the Bahamas Nationality Act, “The minister may at his discretion cause the minor child of a citizen of The Bahamas to be registered as a citizen of The Bahamas upon application made in the prescribed manner by the parent or guardian of such child.”

Dame Joan told The Nassau Guardian, “I would prefer to have that discretion removed and then set out in law the actual terms that the women can register their children at the nearest Bahamian consulate or embassy, so that that becomes the child’s birth certificate.”

She also said, “They (those in government) have the duty and the right to make citizens of those children because the article [of the constitution] that deals with the child when [the child] gets 18 is the right for the child. They don’t seem to read the constitution and understand.”

The first question of the failed 2016 gender equality referendum asked voters: “Do you approve of the constitution amendment number one bill, 2014? Under this proposed change to the constitution, a child born outside The Bahamas would, after the coming into operation of this amendment, become a Bahamian citizen at birth if either its mother or father is a citizen of The Bahamas by birth.”

In an August 2014 communication to Parliament on proposed constitutional amendments, then-Prime Minister Perry Christie emphasized that the right to pass Bahamian citizenship to one’s child under Bill #1 would only have applied where the Bahamian parent is himself, or herself, a native-born Bahamian.

“This has always been the case in relation to Bahamian fathers of children born abroad and this will not change when this right is extended to Bahamian mothers of children born abroad,” Christie said.

“In either case, only a native-born Bahamian will be able to pass citizenship to their children born abroad.”

But voters rejected that proposed change and the other proposed amendments to the constitution.

Influential voice

Ahead of the 2016 referendum, Dame Joan had expressed the view as well that the law already provided for the minister to grant citizenship to the children of Bahamian women married to foreign men in cases where those children are born aboard.

The second question in the 2016 referendum asked voters: “Do you approve of the constitution amendment number two bill, 2014? Under this proposed change to the constitution, a foreign spouse of a Bahamian citizen would, after coming into operation of this article, be entitled to apply for and obtain citizenship subject to satisfying, one, existing national security or public policy considerations and two, new provisions guiding against marriages of convenience.”

Asked whether that citizenship issue ought to also be addressed by ordinary legislation, Dame Joan said “that is a whole other kettle of fish” and declined to expand on the point, though she said she knew personally of a Bahamian family separated as a result of the foreign husband of a Bahamian woman having no automatic right to citizenship.

Dame Joan’s voice featured prominently in the lead up to the 2016 referendum as she raised critical objections to what was being proposed for constitutional change.

Question number four sought to end discrimination based on sex.

This would have involved the insertion of the word “sex” in Article 26 of the constitution, so as to make it unconstitutional to discriminate based on whether someone is male or female.

At the time, Christie said, “In addition, there will be a new amendment designed to allay fears that this might somehow open the door to same-sex marriages. In this regard, it is now proposed to insert a definition of ‘sex’ as meaning male or female.”

Speaking yesterday, Dame Joan suggested there is nothing that ordinary legislation can do on this issue.

“If they mess with Article 26, that [won’t] fly because Article 26 is an entrenched provision that has to be amended in a certain way,” she said.

“You can’t put in there same-sex marriage by the backdoor, and that is what they were trying to achieve (in 2016).”

Fears that a successful referendum would pave the way for the introduction of same-sex marriage in The Bahamas led many voters to reject the referendum.

Attorney General Ryan Pinder said last week the Davis administration will not address the citizenship issue by way of referendum, suggesting that referenda could lead to the wrong result.

“Look at what happens in referendums,” said Pinder at a press conference at the Office of the Prime Minister.

“A lot of time, the right thing doesn’t get done. We are about governing for the right thing. We will do it and do what is correct. And the judgment in this instance is that in this we go by legislation.

“And that’s just my opinion. I have detractors in that opinion and I have people with contrary opinions. That’s fine, too. Everybody is entitled to their opinion but that is the opinion and my recommendation to the prime minister.”

Dame Joan shared her August 2019 paper with Christian Council President Bishop Delton Fernander and government officials after she completed it.

She did not support the Nationality, Immigration and Asylum Bill, as was then proposed, and had recommended that the Bahamas Nationality Act remain separate from the Immigration and Asylum Bill.

Pinder said the citizenship portion of the bill will be brought as a separate bill.

Fernander told The Nassau Guardian on Sunday he does not support the bid to bring constitutional changes via legislative means.

In bringing the citizenship bill, the government will most certainly point to Article 13(a) of the constitution which states: “Parliament may make provision (a) for the acquisition of citizenship of The Bahamas by persons who do not become citizens of The Bahamas by virtue of the provisions of this chapter…”

Pinder initially said the government intends to bring the citizenship bill by end of summer, but more recently said it will be introduced before the end of the current budget year.

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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