Statelessness in the Caribbean. Kristy A. Belton

belonging at nearly every turn. Unable to secure any effective citizenship, their rights are highly precarious and they are displaced in situ.

      While states have created an intricate web of domestic laws to distinguish who has membership in the polity, the right to belong formally to a state via citizenship is conditioned by other factors as well. Political practices, bureaucratic procedures, and discrimination also play their part in determining who belongs. The fulfillment of one’s human right to a nationality is thus far more complex in practice than simply determining to whom (jus sanguinis citizenship acquisition) and where one was born (jus soli citizenship acquisition). Through the case study of The Bahamas, this chapter illustrates how exclusionary citizenship laws, electoral politics, bureaucratic inefficiencies, and cronyism work together to displace Bahamian-born persons of Haitian descent into liminality or into the category of Haitian national without consent.

       Situating the Case Study

      The Bahamas is a chain of over seven hundred islands and cays off the coast of Florida. Its northern tip, located in the Abacos, reaches as far north as West Palm Beach, Florida, while its southern land mass extends as far as southern Cuba. Great Inagua, the most southerly island in the archipelago, lies less than eighty-five miles from Port-de-Paix, Haiti. Despite their geographical closeness, The Bahamas and Haiti could not be more distant in terms of economic, political, and human development. With a Gross National Income (GNI) of $21,280 per capita, The Bahamas is considered a high-income developing country (UNCTAD 2012, xii, xvi; World Bank 2013a). Haiti, on the other hand, is considered a “heavily indebted poor country” (UNCTAD 2012, xv), with a GNI of only $760 and with more than 75 percent of its population living in poverty (World Bank 2013b). Although The Bahamas’ unemployment rate is high at nearly 13 percent (Government of The Bahamas 2016, 17), it pales in comparison to the estimated 70 percent or higher unemployment rate in Haiti (Bergdahl 2012 n. pag.).

      In comparison to the peaceful transitions of power in The Bahamas, Haiti has undergone numerous political challenges since the 1950s.¹ From political violence and the dictatorships of the Duvaliers to coups d’état and environmental catastrophes—such as the 2010 earthquake that destabilized much of the country and left hundreds of thousands internally displaced—Haiti is far from the “Pearl of the Antilles” that it once was. Due to The Bahamas’ proximity both to Haiti and to the United States, its stronger economy, and the fact that it outranks Haiti in education, healthcare, sanitation, and other measures of the UN Development Programme’s Human Development Index (UNDP 2013b),² it is unsurprising that Haitians migrate to The Bahamas, whether temporarily or permanently, in search of a better life. In fact, and noted in Chapter 1, The Bahamas is one of the top three destinations for irregular Haitian migration (IOM 2013, 23).³

      Although the precise number of irregular Haitian migrants in The Bahamas is unknown, hundreds, if not thousands of Haitians are speculated to migrate to the country each year through irregular or unauthorized channels. Many of these migrants remain in The Bahamas. According to the latest census numbers, 11 percent of the Bahamian population⁴ is made up of Haitian nationals⁵ (Government of The Bahamas 2012, 89 and 90, Table 9.0), but this figure does not capture the undocumented population,⁶ which is notoriously difficult to enumerate. Many of these migrants have children in The Bahamas, some of whom are at risk of becoming stateless.

       The Legal Context

      Bahamian nationality law is neutral in theory. Thus, while Dawn Marshall argued that The Bahamas Independence Order of 1973 “further restricted the possibilities for children born of Haitian parents in the Bahamas to claim Bahamian citizenship” (1979, 127), neither the Bahamian Constitution, nor any of The Bahamas’ Acts addressing nationality—such as Chapter 190/Bahamas Nationality Act and Chapter 191/Immigration Act—specifically target Haitian migrants or their descendants when it comes to the acquisition of Bahamian citizenship. The qualified nature of the jus sanguinis and jus soli provisions of the Constitution applies equally to all persons born of noncitizens on the territory.

      Nationality acquisition is qualified in the following ways: a child born in The Bahamas may only become a Bahamian citizen if one of his or her parents is a Bahamian citizen (Government of The Bahamas 1973a, Article 6). This Article is not specific to any particular race or ethnicity. Those individuals born in the country, neither of whose parents is a Bahamian citizen, are permitted to apply for Bahamian citizenship through registration within twelve months of turning eighteen (Article 7), but there is no guarantee they will obtain Bahamian citizenship. As a former Free National Movement (FNM) official makes clear, “it’s not an automatic entitlement.”⁷ Statelessness is therefore a possibility if the child does not possess another nationality. Those who miss the eighteen- to nineteen-year-old application window must go through the regular naturalization procedure, a more involved, time-consuming, and costly process than registration. It is of note that being born in The Bahamas does not provide any benefit in expediting the naturalization process for those who miss the one-year registration window. As an official from the Ministry of Foreign Affairs (MFA) makes clear, “The fact that the individual was born in The Bahamas has no bearing on the application for naturalization” (italics added).⁸

      The Bahamian Constitution states that only the governor-general is able to deprive a Bahamian national of citizenship (Government of The Bahamas 1973a, Article 11), but adds that Parliament has powers to deprive and bestow citizenship on persons by means that are not addressed in the Constitution (Article 13). Chapter 190/Bahamas Nationality Act (1973b) provides more extensive details regarding the acquisition and loss of Bahamian citizenship and also discusses the provision of nationality to non-Bahamian adopted children and minors generally. It details the reasons for loss of Bahamian citizenship, which include acquiring Bahamian citizenship through fraudulent means, committing a crime within five years of obtaining said citizenship, or demonstrating disloyalty to the country, among other criteria, if a naturalized citizen or a citizen via registration (Article 11.2). Again, in none of these cases are individuals of Haitian descent—or of any other particular ethnicity—specifically targeted.

      What is of note is that the Nationality Act provides extraordinary leeway and power to the minister in charge of naturalization and immigration, which today falls under the portfolio of the minister of foreign affairs. In a thirteen-page act, not including the final two pages that deal with schedules of different types, the phrase “the Minister may at his discretion” appears ten times. The minister may thus grant and revoke citizenship at his or her discretion, often without having to confer with any other governmental body. Even when the minister is supposed to refer a case of citizenship deprivation to a “committee of inquiry,” which then recommends whether or not said deprivation should take place, the minister is under no obligation “to act upon or in accordance with any such recommendation” (Article 11.8). Moreover, any decision of the minister regarding citizenship acquisition or deprivation is not subject to judicial review:

      The Minister shall not be required to assign any reason for the grant or refusal of any application or the making of any order under this Act the decision upon which is at his discretion; and the decision of the Minister on any such application or order shall not be subject to appeal or review in any court. (Article 16)

      In practice, however, questions regarding the grant of citizenship are typically performed by cabinet, which consists of the ministers of the executive branch of government, and not by the minister “in charge of naturalization and immigration.” As one former minister of the FNM government explains, a citizenship application “goes before Cabinet, and Cabinet considers it” or the citizenship application goes to the minister of foreign affairs who “prepare[s] a Cabinet brief” and then sends that brief to cabinet to consider.⁹ The entire cabinet then decides on the basis of consensus whether to grant or deny citizenship to an individual. Alfred Sears, former attorney general of The Bahamas (2002–2006) and former minister of education, science, and technology under the Progressive Liberal Party (PLP) administration admits that such a procedure often “takes up a lot of cabinet time” because each application is dealt with individually, making it a “cumbersome” process.¹⁰ It remains, however, that these cabinet citizenship decisions