Monday, February 27, 2012

On February 27, 2002 — exactly 10 years ago today — Bahamians went to the polls in the country’s first referendum... ...A decade after that vote, The Bahamas is still behind many in the so-called civilized world in some respects... ...By voting "no" Bahamians ensured that the country remained in the archaic position of having discriminatory language in its Constitution

A cause for change

Bahamas should revisit issues in failed 2002 referendum

By Candia Dames
Guardian News Editor

There’s an interesting saying in the tropical Southeastern Asian country of Burma: A woman can be equal to a man in all ways, but she must first die and come back as a man. In the 21st century, it would appear that this very saying could be applied right here in The Bahamas.

On February 27, 2002 — exactly 10 years ago today — Bahamians went to the polls in the country’s first referendum.

They were asked by Prime Minister Hubert Ingraham to vote to change the Constitution to eradicate language that made men superior to women.

But in results that Ingraham later admitted "shocked and shamed" him, an overwhelming majority of the voters — women included — voted against the historic change. It was an interesting outcome indeed for a people who have for a long time prided themselves on being among the most progressive in the Western Hemisphere, at least as far as civil liberties are concerned.

A decade after that vote, The Bahamas is still behind many in the so-called civilized world in some respects. By voting "no" Bahamians ensured that the country remained in the archaic position of having discriminatory language in its Constitution.

The results also appeared contradictory to the fact that The Bahamas’ record on the treatment of women and the role of women in society has been a commendable one.

The prime minister’s commitment to improving equality of the sexes was a plank in his campaign platform in 1997.

Ingraham noted in 2002 that for far too long, the Constitution has held double standards; a state of affairs that for too many years deprived the children of Bahamian women, married to foreign nationals, of citizenship; and denied the foreign-born spouses of Bahamian women the right to be registered as Bahamians, a right granted by the Constitution to the spouses of Bahamian men.

There is a classic example of a family negatively impacted by that constitutional provision. The late Dr. Mary Ritchie, a Bahamian woman, married a Trinidadian and they moved to The Bahamas before independence in 1973. The couple’s children who were born before independence automatically became Bahamians. But their children born after 1973 had to obtain work permits to be legally employed there.

Timothy Donaldson, a former Bahamian senator and the country’s former ambassador to the United States, said he has always been "incensed and ashamed" by the constitutional language in this regard. Donaldson was an advisor to the Pindling government during the constitutional negotiations in London.

"To me it’s just not right," Donaldson said. He explained that the thinking of then Prime Minister Pindling was that the provision would ensure that Haitians would not eventually take over The Bahamas which at the time had a population of only about 220,000 and today has a population of well over 300,000.

The country has long been burdened by an ongoing influx of Haitians who come to the country in rickety sea crafts, fleeing the unstable political regime in their poverty-stricken nation.

The Haitian presence in The Bahamas has continued to expand over the decades.

Between 1970 and 2010 births to Haitian mothers in The Bahamas nearly doubled, jumping from 7.2 percent to 13.7 percent, according to a new report released by The Department of Statistics.

"Pindling said ‘These Haitians produce like rats’," Donaldson said. "He said they’re going to produce all those children and at some point in time, the Haitians will outnumber Bahamians. But when you make a law geared at just one particular group of people, it’s certainly not a good policy."

The inequality clause is an entrenched provision of the Constitution. These provisions deal with the fundamental rights and freedoms of people as citizens, establishment and powers of Parliament, the cabinet and judiciary. Entrenched provisions can only be changed by 3/4 vote in Parliament, which happened in 2002, and a majority vote by the people in a referendum, which did not happen. To add provisions to the Bahamian Constitution also requires a referendum. The 2002 referendum sought to both change provisions and add clauses to the Constitution which was written in 1972.

Parliamentary exchange

The inequality issue, undoubtedly the most contentious, was not the only question posed to the Bahamian electorate in the referendum: Initially, the following questions were crafted by legislators.

1 - Do you approve of a Teaching Service Commission?

2 - Do you approve of an Independent Parliamentary Commissioner?

3 - Do you approve of the creation of an Independent Boundaries Commission?

4 - Do you approve amending the Constitution to increase the normal retirement age of judges from 67 to 72 for the Supreme Court, and up to 75 for the Court of Appeal justices? and,

5 - Do you approve amending The Constitution to permit the foreign spouse of a Bahamian citizen to reside and work in The Bahamas for the first five years of marriage, and thereafter entitled to citizenship?

6 - Do you agree that all forms of discrimination against women, their children and spouses should be removed from the Constitution and that no person should be discriminated against on the grounds of gender?

Ingraham made the announcement in the House of Assembly on December 6, 2001, informing members that it was the government’s intention to have the referendum on the same day as the next general election so that The Bahamas could "kill two birds with one stone".

"Election time is the time when you are likely to get the maximum number of persons to participate in the process," he said, "and so it is our intent to hold a referendum on the same day as the election."

On December 6, 2001, Ingraham drew attention to the discrimination question and gave it an early highlight as the key issue in the upcoming referendum.

"The one dealing with discrimination against women is fundamental and we propose to move that and as I understand it, there is consensus in the House in support of that particular amendment," Ingraham said. He told Parliament that he had in hand letters from the leader of the opposition, Perry Christie, and the only third party member in the House at the time, Dr. Bernard Nottage, that registered their support.

By the afternoon of December 20, 38 of the 40 members of the House voted on a sweeping amendment to the Constitution to abolish discrimination against women, their children and spouses.

"At last, 28 years following our independence, we are acting to remove from the supreme law of our land constitutionally-mandated discriminatory provisions against 50 percent of the population of The Bahamas," the prime minister said. "This is heavy stuff."

On January 16, members of the House of Assembly — with the exception of Dr. Nottage — approved the package of constitutional bills. Before his vote, Christie had this to say:

“We are headed for general elections. Those of us in the opposition have a view of what is fair.  If we regard the process [of the referendum] as unfair, then this is what will happen.  We will criticize and go to the country on the basis that this is an illegitimate course of action being advocated and you should not participate or you should vote no.”

A failed process

A month of public debates on the approaching referendum gave way to Referendum Day. What appeared to be a valiant and noble effort by the government to bring The Bahamas in compliance with international conventions that it endorsed, turned into a national debacle.

On all five questions, the majority of voters voted no

• Creation of an independent election boundaries commission.

Valid "Yes" 30,903

Valid "No" Votes: 57,291

• Creation of an Independent Parliamentary Commissioner.

Valid "Yes" 30,418

Valid "No" Votes: 57,815

• Gender discriminating language will be removed from the constitution and if children born to Bahamian mothers and foreign fathers will have Bahamian citizenship.

Valid "Yes" 29,906

Valid "No" Votes: 58,055

• The retirement age of judges will change from 60 to 65 years of age and 68 to 72 for appellate court judges.

Valid "Yes" 25,018

Valid "No" Votes: 60,838

• The creation of a commission to monitor the standards of teachers nationally.

Valid "Yes" 32,892

Valid "No" Votes: 55,627

For the opposition, the resounding no votes amounted to a great victory.  The Progressive Liberal Party celebrated the win as if it were celebrating election victory.

“The clear and unmistakable signal that the Bahamian people telegraphed yesterday is that they do not want any government messing with “their things” unless they, the people, are fully included in the process of constitutional reform from start to finish — and that the process of constitutional reform must never be rushed,” Christie said the morning after the vote.

The day after, Prime Minister Ingraham — who had called the referendum his last major agenda as leader of the country —  stunned many Bahamians when he said he was “ashamed” that Bahamians rejected his proposed amendments to the Constitution.  He also told reporters that he was “mistaken” when he declared that the party that won the referendum would win the general election.

“I have no regrets whatsoever,” he said.  “People are perfectly entitled to accept or reject any proposition put to them and they rejected this proposition.  I accept that this is their entitlement.  I move on.  I am ashamed, but I accept it.  That is the will of the people.”

When he returned as prime minister in 2007, I asked Ingraham at his first press conference after his re-election whether he was minded to re-visit the 2002 referendum questions.

Ingraham said there will be no more referenda under his watch.

But the prime minister has been known to change his mind.

In 2010, he advised that if re-elected his administration would hold a referendum so Bahamians could decide whether they want gambling legalized.

Whatever government is elected this year ought to take another look at the discriminatory questions in our Constitution.

Perhaps in a less politically charged atmosphere, we could finally succeed in making the necessary changes.

Feb 27, 2012