By Frederick Smith, QC
The Bahamas has a problem with human rights. Specifically, this society harbours a deep distain for two basic propositions:
That all individuals should be equal in the eyes of the law, and
That as members of the human race, every single one of us is entitled to enjoy certain non-negotiable rights and personal freedoms.
Most Bahamians do not believe, for example, that irregular migrants should have the same legal protections as citizens; that women should have the same rights as men; that same sex couples should enjoy the same privileges as their heterosexual counterparts. Nor do they believe all people should enjoy freedom from arbitrary detention; that everyone should be considered innocent of wrongdoing until proven guilty; that each of us has the right to move about the country without hindrance.
This perspective has led to a disturbing capacity for and toleration of all manner of abuse – from ridicule and stigmatisation, to physical and sexual abuse, to indefinite deprivation of freedom and even murder. Many, if not most, Bahamians can calmly witness their fellow man being mercilessly brutalised, provided there is some convenient excuse – the victim must be an “illegal” Haitian, an “uppity” woman, a “sissy” man, etc. In The Bahamas, only certain categories of people qualify for sympathy.
Stoking the fire
The events of the past few years have only fanned the flames of this bigotry. The harsh, xenophobic immigration policy introduced by former minister Fred Mitchell - which was clearly no more than a cynical attempt to effect ethnic cleansing as a scapegoat for the PLP’s political floundering and to make himself politically relevant - found a public already well conditioned to scorn those perceived as being different or of lesser value. The result was an inferno of victimisation that threatened to engulf anyone and everyone who even looked or sounded as if they might be “foreign”.
Nurses began turning people away at public clinics because of their accent; NIB workers refused to hand out payments to those with insufficiently “Bahamian” names; traffic police took it upon themselves to stop drivers and demand proof of their right to be in the country. Banks illegally froze their own clients’ accounts because they did not have “papers”! Perhaps worst of all, principals and teachers began turning children away from schools.
The PLP had clearly sought to use our conditioned distain for the concept of basic human equality to its advantage by stirring up racist emotion; but in their attempts to pass a referendum on gender equality, both they and the FNM learned that discrimination is a double-edged sword. In successive elections, the effort of the governing party to protect women’s rights contributed heavily to their loss of power. Like Dr Frankenstein, our politicians created a monster, only to see it lead to their downfall.
Generally speaking, Bahamian women have a particularly bad time; not least because their inequality under the law has been vocally reaffirmed through successive public votes. They also must live with the knowledge that their spouse can rape them without facing any legal repercussions – a situation casually accepted by the public and viscerally defended by regressive institutions such as the Christian Council.
Then there is the plight of LGBTQ individuals, with the gender equality referenda sparking an upsurge in harassment, intimidation and several instances of violence including the brutal beating of two locals and a tourist last year on suspicion they might be gay.
This trend towards intolerance has been further exacerbated by the increasingly connected nature of our society. Social media has on the one hand empowered thousands of formerly disconnected grassroots people to become part of the national conversation. But the flow of information goes both ways and the same tools have been used to virally spread messages of hate that reinforce and enhance long-held prejudices while inciting the mob to target specific individuals.
This trend shows no signs of slowing down and if Bahamians are to hope for a future that is more tolerant and inclusive, more equitable and fair, we urgently need to pass a law that explicitly bans such behaviour.
But, many will say, fundamental rights are already enshrined in the Bahamas Constitution, a document which prohibits discrimination and arbitrary detention, while protecting freedom of expression, movement and speech. But the Constitution provides protection only as between the State and the person abused. It does not provide protection as between private persons and institutions.
The reality is most Bahamians remain unaware of even their Constitutional rights and protections, while the authorities routinely contravene and ignore them. And powerful monied interests abuse with impugnity. Meanwhile, only a handful of Bahamians can afford the cost of mounting a lengthy constitutional challenge in the courts when their rights are infringed upon.
Human rights legislation, on the other hand, could establish various means of immediate recourse, between private persons and between the state and persons; for example a human rights board empowered to review and rule on complaints, as well as a clear regime of prohibitions and penalties which would serve as guidelines for the authorities, thereby helping prevent rights infringements before they happen. It is an approach that has worked well for other countries.
The UK passed human rights legalisation in 1998, essentially incorporating European Convention on Human Rights into domestic law. The result was a legal framework allowing individuals to take action when their rights are infringed, as well as the imposition of new rights protection duties on the authorities.
This model makes a key assumption — that rights will be protected not simply through after-the-fact decisions by courts, but also by establishing opportunities and obligations for reviews of rights by ministers, MPs and public officials prior to any judicial action.
New Zealand’s Human Rights Act, passed in 1993 protects individuals from discrimination in a number of areas of public life, listing the areas and grounds where discrimination is prohibited. The Act also prohibits sexual and racial harassment and the excitement of racial disharmony.
A Human Rights Commission exists to mediate alleged cases of rights infringement. If the commission is unable to create a resolution, an Office of Human Rights Proceedings provides free legal representation to victims.
Legislation creating a board or commission that can take immediate action in the face of alleged human rights abuses is precisely what The Bahamas needs if we hope to stamp out the scourge of bigotry and stimulate a paradigm shift in national thinking. Legal aid for victims would empower the most vulnerable and helpless among us to defend themselves. We must begin to eradicate the “Roots” of discrimination seeded by the PLP under Sir Lynden Pindling and fertilised by Fred Mitchell.
New forms of discrimination
A Bahamas Human Rights Act could go further, addressing new and emerging forms of discrimination and abuse, for example the alarming rise of hate speech and digital harassment over the past several years. This has been largely ignored by the authorities despite repeated complaints, either through a lack of political will or the absence of a legal framework and appropriate tools to tackle it.
As a result, hate speech and anonymous digital abuse have quickly become the chief modes of public attack on minority groups including undocumented migrants, members of the LBGTQ community and civil society organisations, as well as a primary arena of political combat, intentional slander and organised character assassination.
One need only look at the recent revelations of disgraced journalist Sherman Brown, who admitted to the Supreme Court that, at the behest of Peter Nygard, he engaged in a long-running smear campaign against second homeowner Louis Bacon and others, including myself, spreading ever-proliferating streams of false and malicious accusations through a number of anonymous websites and fake social media pages.
Either through sheer ignorance, or – more frighteningly – as a result of financial inducement or political interference, law enforcement appear totally unequipped and unprepared to deal with this phenomenon, preferring to bury their heads in the sand and ignore what is happening.
This was the case in 2015, when groups of masked, menacing men began staging aggressive and intimidating KKK-themed protests designed to destroy the reputation of certain individuals, while placing them in fear of their lives and safety. These incidents, which were ignored by police despite repeated reports by the victims, culminated in an invasion of our premier national cultural event, Junkanoo, in an unprecedented international display of toxic hatred and vile discrimination.
This incident did not go without repercussions for The Bahamas; the shocking images made their way around the world, while the sustained campaign of harassment, of which the protests were but a part, and which went on to include serious physical threats to the lives and safety of the victims, led to the country being cautioned by the Inter-American Commission on Human Rights in Washington DC. To this day, no action has been taken to bring those responsible to justice.
A human rights law could define, criminalise and outline appropriate penalties for all forms of harassment or hate speech, including online attacks and the incitement of intimidating mobs against specific individuals. In doing so, careful consideration must of course be given to the delicate balance between the right to freedom of expression and the right to freedom from intimidation, vilification and stigmatisation.
The past few years have witnessed encouraging signs of a break with the past among younger Bahamians, an increasing number of whom feel unconstrained by the prejudices of their forebears and regard all human life and freedom as equally sacred. This is obviously very good news, but the process of organic change is often slow and incremental. The question is, how many people will we allow to suffer discrimination and injustice in the meantime?
The experience of other countries has shown that implementing human rights laws is an extremely effective way of jumpstarting or boosting the pace of progressive change. The setting and enforcement of official standards lets everyone know where the battle lines are and encourages the voices of progress to speak more loudly and with confidence.
Such an Act would take enormous political will. But the government of the day came to office promising to be a fearless and determined force for change – a different kind of administration, one that finally put the people’s interests first. While in opposition, the FNM courted human rights defenders and promised to defend the constitution. There is no better way to do this, than to bring a comprehensive Human Rights Bill to the floor of Parliament for debate, thereby placing us on the path of true and meaningful progress, once and for all.
The human rights community and all of its international partners stand ready to assist in this effort; all of our experience and expertise is at the disposal of the Minnis administration. All the government has to do is have the courage and conviction to ask.