By Frederick Smith, QC
In the wake of Hurricane Dorian, a great deal of public conversation has focused on the injunction prohibiting demolition of communities of Haitian ethnicity called shanty towns.
Despite the noise in the market, the injunction is simply an order made by the Supreme Court to maintain the status quo until trial of the Judicial Review - which is itself very discreet and self-contained - to determine whether the process undertaken by the Government to eradicate shanty towns was lawful and constitutional. The injunction applies to all communities in New Providence as well as the properties occupied by certain of the 177 plaintiffs in Abaco. The merit, or lack thereof, is a matter for the courts, and should be left in the hands of our independent judiciary. It is regrettable the Prime Minister and his new ally, Fred Mitchell, have chosen to politicise this through demagogic hyperbole in Parliament.
But I wonder if those ranting for the injunction’s removal have considered what a rare and valuable opportunity this pause, this mandatory respite, may have presented to Bahamian society. For decades, the immigration debate has been fiercely contested on all sides in a virtual vacuum devoid of evidence, statistics and fact. Instead, an irrational reign of state encouraged terror against the Haitian ethnic community has prevailed.
On the one hand, you have those who claim the country is being ‘overrun by Haitians’ who are causing unemployment among Bahamians and inundating and degrading our medical, educational and social institutions. The only thing to be done – by virtually any means necessary – is get them out, and get them out now! And if some people’ rights are violated in the process, oh well, there are always casualties in war, to make an omelette you have to break a few eggs, and the end justifies the means in any case.
On the other side is the perspective which, while acknowledging the country’s Immigration laws must be enforced, argues that it is wrong to throw the baby out with the bath water, that the current enforcement procedures are illegal, terrorise people unnecessarily, wreck innocent lives, violate due process under the Constitution and lead to all manner of discriminatory actions and human rights abuses, often against women and minors, but ultimately undermining the rights of everyone.
According to this view, there is a tolerant, legal and humane way to enforce the law; a way that would actually be more effective in halting undocumented migration in the long run, given the current unsuccessful hardline approach remains mired in corruption, superstition, inefficiency, selective enforcement and the sordid taint of political grandstanding.
I and my fellow human rights advocates fight to defend the latter view, and have enjoyed invaluable support in our efforts from international observers like the United Nations, the Inter-American Commission on Human Rights, Amnesty International and more. Whereas the former view is avidly promoted by both the PLP and FNM, in particular by politicians who feel the need for a convenient scapegoat when the polls seem to be turning against them.
In this moment of respite with the injunction in place, is it not the time to try once and for all to get to the underlying facts, so this national discussion can finally become an enlightened and informed one? Should we not for example, take this opportunity to establish roughly how many undocumented migrants are actually in the country? The truth might surprise us, might give us pause, even alleviate some of the anxiety felt by the ‘fight for your country or lose it’ crowd.
Preliminary evidence from the government’s own shanty town reports conducted last year in New Providence and Abaco suggests there may be a few thousand undocumented migrants living across both islands combined. Around 20 percent of those interviewed in Abaco and only six percent of those in New Providence. Hardly the hordes of invaders who many assume are intent on overrunning our little country.
It could be argued this evidence is by no means definitive, but that is precisely the point: we don’t have anything else concrete to go on. The various outlandish numbers of ‘invaders from Haiti’ that are flung about on a regular basis and with an imposing air of authority are based on nothing but superstition, fear mongering and old wives tales.
Are undocumented migrants really swamping our healthcare system? It is common for outsiders to be blamed for poor public services that are more plausibly failing due to mismanagement, underfunding, labour unrest and corruption. Again, Bahamians speak of the scourge of the Haitian hospital patients based on hearsay, hasty generalisation and ad hoc argument. No studies, no surveys, no actual evidence.
Are undocumented migrants really degrading the quality of our public education system? How many undocumented students, how many children of undocumented parents, are actually in our classrooms at the moment? What percentage of the student body do they represent and to what extent can their presence be said to contribute to overcrowding? Again, the facts are simply not available.
What about the argument that the children of undocumented migrants, particularly those of Haitian descent, consistently outperform children with Bahamian parents, thereby elevating the learning atmosphere in the classroom to the benefit of all students and contributing qualities such as discipline, effort and excellence to our society when they enter the workforce?
Are undocumented migrants really taking all of our jobs? What of the argument that all over the world, migrant populations occupying the lowest paying jobs in a society is regarded as a sign that the society is evolving, the economy is growing and the local population is moving into more skilled, better paying jobs?
Is our hardline, draconian approach to immigration enforcement – the terrifying nighttime raids, the unlawful roadblocks and indiscriminate roundups – really working?
Targeting established communities of predominantly Haitian ethnicity, populated for the most part by a combination of documented foreigners and poor Bahamians, makes for dramatic headlines, but it does not make for dramatic results. Most of the people detained are eventually released, after their fundamental rights have been terribly abused, with perhaps a handful of people remaining in illegal detention.
If the injunction is set aside, pray tell, where will the ten thousand or so newly dispossessed find shelter? We already have a crisis with those from the shanty towns in Abaco; does the government really wish to exacerbate this challenge?
This approach is really all for show and does nothing at all to address our porous maritime border through which undocumented migrants enter in the first place. It is the equivalent of bailing out your boat with a spoon, before plugging the massive hole in your hull. Not to mention the fact the culture of corruption within the Immigration Department means of the few detained, those who can pay are often released again.
Would it not make sense to try a different way? Perhaps the Immigration enforcement budget could be shifted to better surveil our borders, using drones and other modern technology to detect and stop undocumented migrants arriving in the first place. The $450 million Defence Force vessels are usually out of commission. Perhaps focus on a little more maintenance? Perhaps then the Department of Public Prosecutions could investigate the numerous allegations of extortion within Immigration and clean up that Department with a view to ensuring any gains made in enforcement are not lost to corruption.
Once the situation has been thus stabilised, the government could then perhaps abandon the knee-jerk reactions – even frantic emergency – with which it always approaches these issues.
There seems to be a complete failure to appreciate that we are dealing with human beings. Yes, Haitians are human too! With new arrivals reduced to a minimum, they could then get some real sense of the situation on the ground, and launch an efficient, patient and humane system of identifying and addressing the relative handful of remaining individuals with document issues, regularising those who qualify or have applied to qualify, and issue deportation orders for those they feel they must, while affording them all the rights, privileges and due process protections mandated by the Constitution.
Finally, and perhaps most importantly, does this injunction not open the space for a long overdue, frank and honest discussion about certain well established and widely held assumptions and prejudices that fuel much of the hysteria and misinformation which besets the issue of undocumented migration in the Bahamas? Assumptions about the nature of nationhood, identity and the public’s susceptibility to being manipulated by politicians through the twisting of these ideals.
Before independence, unskilled labour moved fairly freely between the Bahamas and Haiti in an amicable and calm fashion. Lucrative business arrangements, friendships and even marriages were the norm – hence the many French sounding surnames that are now considered to be ‘true true’ Bahamian families.
What was it about independence and its aftermath that gave rise to the now deep-seated hatred and paranoia about Haitians in the Bahamas? Why do we treat undocumented migration, a relatively minor infraction in terms of penalties on the books, as if it were the worst crime imaginable, more terrible even than murder and rape? Where did this mindset come from, and why and by what means have the fires of distrust and disgust been stoked since then?
It is our hope on the tolerant side that young, increasingly well educated Bahamians are growing immune to the misinformation, superstition and intolerance of those on the other side. Who knows, such a discussion might reveal to political leaders that the time has come to rethink the trusted formula: ‘Tough immigration policies = election wins’.
But we won’t really know unless we take this opportunity to discuss the above questions and more – in the press, on social media and face to face with our fellow Bahamians. It is a rare chance to take stock of who we really are, where we find ourselves today, and where we want go - towards a more humane and enlightened future, or remain mired in intolerance.