E CASE FOR CONSTITUTIONAL REFORM
COMMENTARY BY ELCOTT COLEBY
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. The Bahamas is about the business of fixing this with vigorous Parliamentary debates on four Constitutional Bills, followed by an intense public education campaign that will culminate in a Constitutional Referendum for enshrinement on November 6 in accordance with Article 54 of the Constitution.
In short, the amendments to the constitution seek to eliminate gender inequality, discrimination against women and discrimination against unmarried Bahamian fathers. Bills #1 through #4 seek to achieve the following:
The Bahamas Constitution (Amendment) Bill #1, 2014: The transfer of Bahamian Citizenship.
In accordance with Article 54 of the Constitution, this Bill seeks to repeal Article 8 and make a consequential repeal of Article 9 of the Constitution.
Presently, Article 8 enables a child born outside of The Bahamas to a married Bahamian father (who is a Bahamian by birth) to automatically become a Bahamian citizen at birth, but denies this legal right to a Bahamian mother if the father of her child (born outside of The Bahamas) is a non-Bahamian.
In the latter case and under Article 9, the child born to a Bahamian mother and non-Bahamian father can make an application upon attaining the age of eighteen (18) and before attaining the age of twenty-one (21), to be registered as a Bahamian citizen.
Bill #1 seeks to institute gender equality by enabling a child born outside of The Bahamas to automatically become a Bahamian citizen at birth if either of the parents is a Bahamian citizen at birth.
Such an alteration to the Constitution would eliminate the need for Article 9 which is therefore repealed.
The Bahamas Constitution (Amendment) Bill #2, 2014: Marriage to a Bahamian citizen.
Basically, under Article 10 of the Constitution in its current frame, a non-Bahamian woman becomes a Bahamian citizen immediately upon marrying a Bahamian man subject to terms and conditions of paragraph 2 which is designed to protect against marriages of convenience.
Bill #2 seeks to alter Article 10 of the Constitution in accordance with Article 54 to “enable a Bahamian woman married to foreign man to secure for him the same entitlements to citizenship that a Bahamian man married to a foreign woman already has under the constitution.” Of course this too is subject to the terms and conditions of paragraph 2 designed to protect against abuses such as marriages of convenience.
Under paragraph 2, the foreign party may be denied registration for citizenship if there is satisfactory evidence of the following:
I. The marriage no longer subsists;
II. The marriage was entered into for the purpose of enabling the foreign partner to acquire Bahamian citizenship;
III. The parties have no intentions of living together after the marriage;
IV. The foreign party was convicted in another country of an indictable criminal offence involving “moral turpitude.” Bigamy and polygamy would qualify.
The Bahamas Constitution (Amendment) Bill #3, 2014: The transfer of citizenship by a Bahamian man to a child he fathered in The Bahamas with a woman he is not married to.
Currently under Article 14 of the Constitution, an unmarried Bahamian woman can transfer her citizenship to her child born in The Bahamas, but an unmarried Bahamian man cannot. This is the only law that currently discriminates against a Bahamian man based on his gender and marital status. This law has irked single Bahamian men for more than one generation in that they feel that they have all the rights only in making child support payments, but little to no say or sway (including citizenship) as it relates to their child born outside of wedlock. This law cannot be changed fast enough.
Bill #3 seeks to alter Article 14 of the Constitution to “enable the Bahamian father of a child born outside of marriage to pass on his citizenship to that child just as an unmarried Bahamian woman can presently do but subject to proof of paternity.” This amended Bill is directly connected to the Status of Children Act where the result of a DNA test is recognized by Bahamian law as sufficient proof of fatherhood or paternity.
Also, in Article 14(3), the word “father” is replaced with the word “parent” to achieve gender neutrality. Since both the father and mother are treated equally under the proposed amended law, singling out one parent based on sex becomes irrelevant and therefore redundant.
The Bahamas Constitution (Amendment) Bill #4, 2014: Including “sex” explicitly as strictly prohibited grounds for discrimination.
Currently in paragraphs (3) and (5) under Article 26 of the Constitution, the expression “discriminatory” means “affording different treatment to different persons attributable wholly or mainly to respective descriptions by race, place of origin, political opinions, colour or creed….”
Bill #4 seeks to add the word “sex” to the descriptions of the various attributes. Under the amended law, it becomes illegal to discriminate against a person based not only on race, place of origin, political opinions, colour or creed, but also on the grounds of sex. This constitutional move effectively enshrines gender equality as a fundamental right.
It is important to note that pursuant to Article 26(4), there are exceptions to this rule such as matters of personal law, including marriage where the Matrimonial Causes Act protects the position of marriage as a union between a man and a woman. Same sex marriages will NOT be recognized by Bahamian law and will remain illegal after this constitutional amendment.
In closing I share the expressed views of the government via the Commission that there are urgent moral, national, international and political imperatives driving the need to reform The Bahamas Constitution to achieve gender equality and eliminate discrimination based on sex. The Bahamas has international obligations and our efforts are being closely scrutinized by the international community. We need all hands on deck to bring our laws fully in line with a 21st century free global community. Also, as a freedom loving person, I fully support the expansion of personal rights and freedoms.