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Culture Clash: Where Next For Legislation On Gender Equality?

By ALICIA WALLACE

Prime Minister Dr Hubert Minnis announced last week the current administration will amend legislation in order to allow Bahamian women to automatically transfer citizenship to their children at birth in the same way Bahamian men already do. At present, children born to Bahamian women and non-Bahamian men outside of The Bahamas must apply for Bahamian citizenship between the ages of 18 and 21, and registration as a Bahamian citizen is at the discretion of the Minister.

The Bahamas Nationality Act — not the Immigration Act — speaks to the acquisition of Bahamian citizenship which, in many cases, must be granted by the Minister. By use of the word “automatically” in his statement, it appears Minnis means to amend the Bahamas Nationality Act so there is no application or, at the very least, no interference by the Minister. It is not clear how he intends to do this or the form the new process will take, but it is not “overturning” the referendum vote. Minnis has proposed a completely different action which will not have the same effect as a constitutional amendment.

Recall the conversation about the constitutional referendum of 2016. The Constitutional Commission repeatedly made the distinction between the right to automatic citizenship and the right to apply for citizenship. While bill one — specific to Bahamian women married to non-Bahamian men being able to transfer citizenship to children born outside of The Bahamas — would have made citizenship automatic if it had passed, bill two — specific to Bahamian women transferring citizenship to their non-Bahamian husbands — would have allowed for an application process that would not have guaranteed citizenship. This is an important distinction to make and understand: the right to apply for citizenship is not the same as the right to acquire citizenship.

Constitution vs. legislation

Since 2014 when the constitutional referendum was announced, some insisted the same goal — equal rights to transfer citizenship to spouses and children — could be achieved through legislation. They insisted the PLP administration, if it was serious about gender equality in citizenship, should just use the Bahamas Nationality Act to get the same results as a ‘yes’ vote in the referendum. They did not, however, acknowledge the difference between the constitution and legislation.

The constitution is supreme law. Article two states, “This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.” Legislation, such as the Bahamas Nationality Act, fits the “other law” category. This means what is written in the constitution overrides any legislation. That is why it was important to go through the referendum process, making an effort to change the constitution so gender equality in the right to transfer citizenship would exist in supreme law rather than in the Bahamas Nationality Act (which is superseded by the constitution).

What if the Bahamas Nationality Act is amended to allow children born outside of The Bahamas to Bahamian women married to non-Bahamian men to automatically access Bahamian citizenship? In theory, it would be great.

There would be no need for applications to the Minister, more paperwork going through Cabinet, or waiting for the age of 18. What if, however, there is a legal challenge? What if someone, or a group, decides it is not constitutional? If taken to court, based on Article two of the constitution, we know supreme law holds. This means Article nine — which says those “born legitimately outside The Bahamas after 9th July 1973 whose mother is a citizen of The Bahamas shall entitled, upon making application on his attaining the age of eighteen years and before he attains the age if twenty-one years… to be registered as a citizen of The Bahamas” — would carry more weight than any allowance made in the Bahamas Nationality Act.

No change the current administration makes to legislation is the final word. This is the reason the previous administration spent money and other resources on the constitutional referendum of 2016. Is it a step? Maybe. Is it a cure-all? Not at all.

Convention on the Elimination of All forms of Discrimination Against Women (CEDAW)

Many Bahamians were first introduced to CEDAW after the 2014 announcement of the constitutional referendum. CEDAW was adopted by the United Nations General Assembly in 1979 and ratified by The Bahamas in 1993. Though we have signed the convention, The Bahamas has made reservations on some Articles including 2(a) on the elimination of discrimination against women in “national constitutions or other appropriate legislation”.

This reservation exists because while Article 26 of the constitution is on protection from discrimination, it does not list sex as a prohibited ground for discrimination and cannot be changed without a simple majority vote by Bahamian citizens.

Article 54 of the constitution states changes to Article 26 — along with many others including 8, 10, and 14 which relate to transfer of citizenship and were included in the 2016 referendum — can only be made following a vote of at least three-quarters of both Houses and a simple majority of eligible Bahamian citizens.

The Bahamas also reserved on Article 9 of CEDAW on equal nationality rights including the ability to acquire, change, or retain nationality and the same rights with respect to their children’s nationality.

Both CEDAW and The Government of The Bahamas recognise the constitution as supreme law and understand the process of changing it. This is at least a part of the reason for The Bahamas’ reservation on the two Articles mentioned here, the decision to go to referendum in 2016, and the response from the Constitutional Commission to the argument that legislation would get the good done just as well.

Power of the Houses

It is critical we understand democracy, governance, law, and power. It is difficult to participate in national discussions without an understanding of the constitution, legislation and how they can be changed. Legislation is being tabled and amended on a regular basis, largely without the public’s attention, much less understanding or agreement. We need to pay more attention to what our Members of Parliament are doing, especially if they are looking to increase their own salaries.

“The People’s Time” can’t just be a snappy slogan; it needs to be a way of life. The people need to set the agenda, supervise our employees, and actively participate in democracy.

It is easy to see Minnis’ announcement as a victory for those of us who wanted a ‘yes’ vote in 2016. It is easy to become distracted by seemingly benevolent actions and to be assuaged by convincing rhetoric. We need to ask questions. What difference will legislative amendments make?

How is this administration acting to shift culture? Does the current composition of Parliament or the Senate reflect an interest in gender parity? How can we learn more about our constitution and existing legislation?

Who is the government, and who is responsible for protecting democracy? Where does the power really sit, and it is being used effectively? How have we contributed to the current political environment? Are we ready to change it?

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