By FRED SMITH QC
The 2017 general election has gifted us with a tremendous opportunity to strengthen and entrench crucial democratic principles in the political, social and economic life of The Bahamas.
Principles such as transparency, accountability, individual rights and respect for the rule law are cornerstones of good governance and key to improving the quality of life for everyone who calls this country home.
Our democracy took a battering under the last Progressive Liberal Party (PLP), which quickly degenerated into little more than a petty kleptocracy tainted by corruption, crony capitalism, gross human rights violations and increasingly anti-democratic tendencies.
All the blame for this disaster cannot be laid at the feet of Perry Christie and his comrades, however.
The truth is the failure of successive governments, both PLP and FNM, to implement legislative safeguards ensuring good governance and protecting against corruption and political manipulation paved the way for the collective nightmare that was the Christie Administration.
Going forward, if we want to prevent a return to the dark days of 2012–2017, The Bahamas must make concrete legislative changes to entrench democratic principles and remove, to the greatest extent possible, all opportunities for elected officials to engage in corruption, malfeasance and oppression of the populace.
If this FNM government is to remain true to its mantra, ‘It’s The People’s Time,’ a number of steps must be taken to improve the state of democracy in The Bahamas.
Freedom of Information
The government should overhaul the existing Act to:
• Ensure the Information Commissioner is chosen by a truly independent selection committee.
• Expand the definition of “Public Authorities” subject to the Act to include ALL bodies owned, controlled or substantially financed by the government.
Minimise time limits for the release of documents. Currently it takes 30 years for information to be declassified.
Remove the provision giving veto rights to a Cabinet Minister. All decisions should be made by the Information Commissioner alone.
Strengthen the judiciary
The FNM has already taken an important step in this regard, announcing the creation of an Independent Director of Public Prosecutions (DPP).
The government should also:
• Create a mechanism for prosecuting officials who fail to comply with court rulings.
• Create a mechanism to prosecute anyone who may seek to intimidate, coerce, hinder or unduly influence a judge.
End executive control over the tenure of judges.
Grant non-citizen judges and their families permanent immigration status.
Allow the judiciary to manage its own affairs and budget.
The existing FOIA makes only cursory mention of protection for civil servants who uncover and expose cases of official neglect or malfeasance.
The government should go further with a Whistleblower Act that is both modern and comprehensive. It should encourage and even incentivize those with knowledge of wrongdoing to come forward.
New role for the
With the creation of an independent DPP, there is no longer a need for the Office of the Attorney General to manage thousands of prosecutions each year. The resultant free time could be used to a number of positive ends.
For example, the AG could concentrate on ensuring our laws are in line with the various international treaties which The Bahamas has signed – particularly those designed to enhance human rights protections, strengthen democracy and promote the rule of law.
The AG could also focus on developing and expanding legal provisions against top-level corruption, especially regarding sitting Cabinet Ministers.
During the last Christie Administration, hate speech became the chief mode of political attack on minority groups such as undocumented migrants, the LBGTQ community and activist that fought human rights abuses, fiscal mismanagement and environmental pollution.
Legislation criminalising and outlining penalties for all forms of hate speech and harassment in urgently needed. Careful consideration must of course be given to balancing this with the right to freedom of expression enshrined in the Bahamas Constitution.
A new definition of ‘policy’
Longstanding confusion regarding the role of ‘government policy,’ has meant successive administrations have been able to substitute policy for law – the result being government officials regularly, though sometimes unknowingly, operate illegally.
The government should create legislation that clearly outlines the role and limits of policy and reinforces in explicit terms, the priority of statute and constitutional law.
The FNM has foreshadowed the creation of an independent Office of Ombudsman, although details have yet to emerge.
Independent units should be established in all key departments and report regularly to the Ombudsman on matters such as: fiscal management; complaints and claims of negligence or malfeasance; operational efficiency; and systematic issues leading to poor service or breaches of basic rights.
Despite the existence of a Local Government Act, decision-making power on each island remains vested in central government, which also retains control of local budgets and collects all tax revenues for payment into the public treasury.
The Act should be amended to create a system in which each island is able to envision and create its own future, with district councils empowered to collect taxes, pass by-laws and enforce them, and control issues such as town planning and Crown Land use.
Exchange control reform
Severe exchange control regulations are a major barrier to meaningful citizen participation in this economy.
Virtually all the key players in the tourism industry are internationally traded companies, yet citizens are prevented from investing in any of these enterprises. Bahamians can aspire to no more than employment in what is essentially, a foreign-owned industry in their own country.
A review should be conducted with a view to systematically liberalizing and eventually abolishing exchange control, thereby empowering Bahamians to both have a stake in their own economy and conduct business overseas.
Campaign finance transparency
The FNM has pledged to introduce some level of campaign finance reform through the expansion of the Public Disclosure Act to cover political donations.
Secret campaign donations are the driving force behind the networks of corruption and nepotism that plague the political life of The Bahamas. Shedding light upon and regulating political financing must be a priority in any effort to further entrench democratic principles.
The overwhelmingly public rejection of proposed constitutional amendments aimed at bringing about gender equality was due, to a large extent, to the politicization of the referendum process and misinformation campaigns by special interests.
Luckily, neither a national referendum, nor changes to the constitution are actually needed to bring about gender equality, at least in the short term.
A few simple changes to existing statute law could effectively plug the gaps in gender equality, thereby allowing the public to adjust to the new reality and see that most if not all of their fears are unfounded.
The creation of a Land Use Plan (LUP) for New Providence was mandated in the 2011 Planning and Subdivision Act. The Christie Administration simply ignored this, however.
LUPs aim to make development more rational, efficient and ethical. They aim to bring an end to the unhealthy development model currently employed, which leads to environmental destruction, disregard for traditional customs and culture, social upheaval and economic uncertainty.
LUPs should be made mandatory for all islands in The Bahamas.
Over the years, secret ‘Heads of Agreement’ deals with developers have resulted is the giveaway of hundreds of millions of dollars worth of land which is supposed to be the property of the Bahamian people.
A Crown Land Act must be passed which clearly outlines the circumstances under which leases and grants can be issued. Dialogue with the local population should be a key and binding cornerstone of this law.
Applications by Bahamians should be prioritised over proposals from foreign developers. There must also be provisions for clearing the backlog of 30,000 applications by Bahamians and providing for transparency in all matters relating to the granting and lease of Crown Land.
There is a worrying lack of awareness among some sectors of society regarding the nature of constitutional rights, the role of government and the function of the law.
A comprehensive awareness campaign is therefore a crucial component of any successful effort to enhance our democracy.
This must begin at the grade school level across the public education system and extend to courses in Civics, Good Governance and Constitutional Theory at the University of The Bahamas.
Other key target groups include: law enforcement, immigration and correctional services; civil society, in particular groups that deal with minority, migrant and gender rights; staff at the Office of the Attorney General, the Ministry of Legal Affairs and the Judicial and Legal Services Commission; social services providers.
The FNM administration has already taken an important step in this regard with the announcement of an impending Environmental Protection Act.
This Act must be the all-encompassing final authority on environmental matters in The Bahamas and must deal decisively with urgent issues such as unregulated development, abuse of Crown Land, and the wanton destruction of natural resources.
It must also provide for the training of Environmental Officers on each island, answerable to the Local Government authorities and empowered to investigate any and all alleged environmental infractions. It must establish an Independent Environmental Czar, who is mandated to work closely with the Office of Ombudsman to investigate matters of concern fairly and without prejudice.
The way forward
For those Bahamians who value democracy, fairness and justice, the way forward is clear: we must erect firm legal barriers to prevent recent history from ever repeating itself.
Never again can we allow our progress towards a more democratic and prosperous future to be hijacked by underhanded officials and their associates whose only interest is lining their own pockets.
Never again can we submit to shamefully regressive laws or condone the violation of people’s fundamental human rights, all in the name of scoring cheap political points.
The FNM have been given an unprecedented mandate. The Minnis Administration has an incredible opportunity to go down in history as the government that ushered in true democratic change in The Bahamas and pointed the way to a brighter future for us all.
Let us pray they have the political courage to live up to their potential.