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Pre-Texts

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Pre-Texts with Haitian Immigrants

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 Bahamas

2015

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A MORAL READING OF NATIONALITY LAWS

Marco Abarca [1]

This essay is about a bittersweet story. On the one hand, it addresses the cruelty rooted in nationality laws and national identities. Explicitly, the cultural hostility against Haitian migrants and the alienation of their children, some who grow up in legal limbo at risk of becoming stateless persons. On the other hand, it is about a group of people in The Bahamas who wrought challenging texts, using simple cultural practices from Pre-Texts, to interpret nationality laws. They also learned about human rights research and the art of interviewing. Encouraged by that experience, they sought, enrolled, and interviewed over 1000 persons who, like themselves, were born in The Bahamas to Haitian parents.

Ultimately, this essay will tell a story of how their collaboration brought to life a project aimed to study the impact of Bahamian nationality laws on persons of Haitian descent, to document their status regarding nationality and to determine the presence of stateless persons or at risk of statelessness in their communities.

Following a background presentation on the research project, four essential questions served as a framework for the analysis: What was the problem and the objectives of research? Why were members of the affected population asked to become co-researchers? How did the Pre-Texts proposal prepare members of the affected communities as co-researchers? Was Pre-Texts effective? How did it work?

Background

In early January 2015, professor Annette Martínez, Director of the Caribbean Institute of Human Rights, was contacted by Bahamian human rights advocates about new immigration policies effective since September 2014.  These policies, not surprisingly, had resulted in an escalation of raids targeting Haitian migrants and persons of Haitian descent, including school-aged children who were being used as decoys to get to the parents. Professor Martinez invited me to join a fact-finding mission aimed to examine allegations of inhumane treatment endured by detainees at the immigration center in Nassau.     

On arrival to The Bahamas, we met with local human rights advocates and members of affected communities before visiting the Carmichael Detention Center, where hundreds of persons were kept during deportation procedures. We were not allowed inside the detention facilities but were able to conduct our work as regular visitors. We accessed an open field near the living halls where we stood facing two parallel lines of cyclone-fence separated by a dirt corridor. Detainees, including men, children, women (some pregnant and close to term), gathered on the opposite side of the corridor, some of whom were able to give personal testimony about conditions in this overcrowded detention facility. In the following days, we contacted their families to gather details concerning their nationality status and the actions taken by immigration officers who, based on cultural profiling, detained anyone who could not produce nationality papers on the spot, including persons born in The Bahamas.

On January 30, 2015, our findings were published on the front page of the Sunday edition of the New York Times under the title "Immigration Rules in Bahamas Sweep Up Haitians." In their official response to this article, using the phrase "victimhood is often a practiced art,” the Bahamian government tried to brush off the allegations of human rights abuses. Thereupon, international alarm grew, in part because of the facts portrayed in the news, in part because of the government's dreadful reaction to media coverage, all of which ignited a prolonged and unusual interest in Bahamian politics. Finally, on February 20, 2015, in a follow-up piece titled “Bahamas Told to Improve Conditions at Center Housing Haitian Immigrants”, The New York Times announced the decision of the Inter-American Commission on Human Rights to grant our request for precautionary measures to protect detainees in The Bahamas and initiate proceedings to hold a hearing on the question of Bahamian immigration policies.[2]

Research problem and objectives

Persons of Haitian descent face unique challenges to acquire Bahamian nationality. The Constitution of The Bahamas establishes that only children born to Bahamian citizens can acquire Bahamian citizenship automatically, at birth. Clearly, this leaves children of non-Bahamian parents out. Further, any other alternatives available to them to acquire Bahamian nationality, at some point in their lives, are riddled with administrative barriers in processes that make decisions both discretionary and final. They do not require any reason for refusal of any nationality application and are not subject to appeal or review in any court. 

Our research objectives aimed to study the nationality status among persons born in The Bahamas to non-Bahamian parents and to identify stateless persons or persons at risk of statelessness amongst the population of interest. Further, the research aimed to provide insight into people affected by problems concerning nationality status, the reasons for their predicament, the extent to which it had an impact on their lives, and to demonstrate the need for legislative and policy changes to address problems found.

Why did we choose a collaborative research approach?

Persons born in The Bahamas to Haitian parents are hard to reach and even harder to involve in research. The exact number of persons of Haitian descent residing in The Bahamas remains unknown. The Bahamian government relies on estimates drawn from studies published by international organizations to speak in rough numbers of some 30 to 80 thousand Haitian migrants. These numbers refer both persons migrating from Haiti and persons born in The Bahamas of Haitian descent. Social issues regarding national status or statelessness are sensitive or even contentious subjects to talk about with state officials and some NGOs. Our population of interest is also sensitive to issues regarding national status, fearing that identification could cause exposure and deportation. Typically, they live at the margins of Bahamian society, in precarious conditions, in shantytowns encroached on former agricultural land out of sight.

With no public data on the population of interest nor access to a sampling framework, a chain of referrals was needed to engage research participants. Developing social ties between the first group of referrals and other unknown members of the population of interest became the best option to conduct our study. Assisted by local NGOs, we enrolled 25 persons as the first group or referrals, all members of the affected population, who participated in a training program with the option to became co-researchers.

How did Pre-Texts help to engage local partners as co-researchers?

A two-day program was designed to address three basic requirements of collaborative research with members of the affected population: knowledge of substantive topics of research, development of interviewing skills, and practical knowledge of research ethics. The overarching objective was to afford trainees a personal experience of how human rights standards were used by researchers as a basis to design the research instruments that they, as co-researchers, will use to collect data on how reality manifests itself through language, words, signs, symbols.

The translation of universal human rights standards into local socio-cultural conditions is not a simple task. A growing body of studies shows that traditional doctrinal methods don’t work. It also shows that the vernacularization of human rights documents can have profound impacts on the rights consciousness and empowerment of marginalized groups. Proponents of this approach have adopted several strategies, like socio-drama, participatory workshops, creating learning materials collectively, theatre, testimonies, deep listening activities, talking circles, personal and group reflections on specific events, and collective protests.[3]

Pre-Texts provided us with a unique opportunity to integrate a non-traditional method into our training program. Pre-Texts’ three-pronged strategy promotes literacy, creativity, and civic engagement, inviting participants to interpret challenging texts by digging into difficult words, concepts, and grammar. Its core proposal is to develop a democratic setting where teachers take the role of facilitators who, acting like Common Law judges in hearings, are only required to see that the rules of engagement are observed so that everyone has equal opportunities to participate. Not coincidentally, Pre-Texts is inspired by different cultural variations of norm-making, norm-enforcing ad norm-interpreting procedures. To mention a few: Augusto Boal's Legislative Theater, Antanas Mockus' Cultura Ciudadana, Paulo Freire's Pedagogy of the Oppressed, and Jacques Rancière's Emancipated Spectator.[4] 

Pre-Texts first contribution to our training program was its simple binary structure: read, then act. Our training program included three presentations on topics of research (international law, local nationality laws), the former two were followed by dialogues and workshops providing time and space for participants to compare facts and law concerning the status of the right to nationality and the problem of statelessness in their communities. 

A second contribution was its rules of engagement. Much like the rules of practical discourse, Pre-Text allowed trainees to figure out -quite quickly- that entitlements to speak had to be matched with equal responsibilities towards other participants, that is, to make sure that all had an equal chance to benefit from the training program and to become co-researchers. However, contrary to the aims of rules of discourse, Pre-Texts' proposal is not aimed at fixing meanings to texts. This proposal helped trainees understand that the aim of interpretation was also to allow other persons -research subjects that they would interview- to contribute to research findings, mainly through one of the research instruments we prepared consisting of semi-structured questions regarding the extent to their nationality status had an impact in their lives.

Finally, Pre-Texts helped us materialize our training program's objective by equipping our local partners to conduct field research, especially since they became acquainted with the legal texts we used as a basis to design the research instruments. Toward that imaginative exploration, Pre-Texts helped us encourage trainees to own the texts by interpreting creatively; to connect texts to one's own lived experience; and to experience that all reading necessarily engages in dynamic negotiations.

Diagram 1, below, illustrates how Pre-Texts was integrated into the preparatory stages of our study: stages 1 to 3 refer to the process preceding the design of research instruments. Using Pre-Texts’ core pedagogical proposals for stages 4 and 5, we developed a two-day training program “mirroring” stages 1 to 3. Finally, in stage 6 we convened, as a research team, to start field work with the collaboration of members of affected communities as co-researchers.  

Was Pre-Texts effective?

 

Pre-Texts’ contributions to the training program had a positive impact on the study as a whole, explicitly, in trainees’ understanding of topics of research and the quality of work produced. This assessment was obtained by contrasting the work of persons who were able to participate in a full two-day training program (see stages 4 - 6 in Diagram 1), to those who participated only in activities relating to interviewing skills (stage 6). The two-day training program was offered only once, just before the 30 days field research activities began. The abbreviated version of the training program was offered at least five times, after field research had begun. 

Assessments were carried out daily. A typical workday started in the morning, first reviewing the work of the previous day and then distributing blank questionnaires to co-researchers. They carried out interviews and delivered results in the afternoon; with finalized questionnaires, hand notes, and voice recordings of interviews. Samples of work were processed that same day to conduct tests with cross-tabulations of data and the analysis of hand notes and voice recordings to corroborate how co-researchers were using research instruments.  

The outcome of daily assessments showed that trainees who participated in the full training program had a better understanding of topics of research than those who could only participate in the brief version of that program. Of 19 trainees who participated in the Pre-Texts activities, only 3 had some problems understanding the subject of research. In comparison, of 23 trainees who did not participate in Pre-Texts workshops, 14 had problems understanding the basic premises of research, explicitly, differentiating nationality from national identity. This problem led them to improper use of research instruments. In fact, of 933 interviews conducted by trainees who participated in the two-day training program, 12 interviews were discarded. Of 137 interviews conducted by trainees who did not participate in the full training program, 43 were discarded.

How did Pre-Texts work?

Ask questions: The overall aim of our first activity was to provide trainees an opportunity to contrast the predicate of international norms with their personal history regarding nationality status. Following a presentation delivered by researchers on the right to a nationality and the problem of statelessness, trainees were asked to elaborate questions based on both legal texts and personal experience. The following are examples of texts used:

  • Article 15 of the Universal Declaration on Human Rights: “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”[5]

  • Article 1 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws: “It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, custom, and the principles of law generally recognized with regard to nationality.”[6]

  • Article 1 of the Convention Relating to the Status of Stateless Persons: “The term ‘stateless person’ means a person who is not considered as a national by any State under the operation of its law.”[7]

Our first volunteer, "JB," a young woman educated in performative arts, reached into her purse and took out a document issued by the Government of The Bahamas. The document resembled a passport, but its cover read "Certificate of Identification." She opened the Certificate in its first pages to point out that it established her nationality as Haitian. She challenged the meaning of "Haitian", as used in that document. First, she explained that she was born in The Bahamas to Haitian parents, and then she asked, what if she never had documents issued by Haitian authorities regarding her nationality, were Bahamian authorities entitled to affirm Haitian nationality?

Based on “JB”’s story, the texts describing basic principles on nationality became vulnerable to questions. Open to discussion, trainees and researchers returned to the object of JB’s inquiry again, and again, each time with an improved understanding and a complete interpretive account on how the law applies to specific conditions. In JB’s case, Bahamian authorities should not have assumed, without proper documentation issued by Haitian authorities, that she is a Haitian citizen. Haitian authorities would have required evidence of the quality of either of JB’s parents as being “native-born” Haitians, meaning being themselves born in Haiti to Haitian parents. If these conditions are met, it means, according to the Constitution of Haiti, [1]  that JB acquired Haitian nationality automatically (at birth). Thereof, she was entitled to register and be recognized as a citizen in compliance with Haitian statutory provisions and State practices.[2] The act of recognition, while declarative (not constitutive) of Haitian nationality, is necessary to obtain documents to prove that JB is a Haitian national. However, if her parents are not native-born Haitians or had renounced Haitian nationality before JB was born, she would be stateless.

How was this activity useful? It allowed trainees to become open to the possibility that once in the field, conducting interviews, reality might show them that neither the relations between facts and norms, nor between questions and answers, are straightforward. Most important, it allowed trainees to realize that the research instruments are a product of the researchers’ decisions to include some details and exclude others. For instance, to understand why questions regarding evidence of Haitian nationality permitted only certain answers related to documents issued by Haitian authorities and exclude any documents issued by Bahamian authorities. 

 

Further, all discussions on the evidence of nationality were crucial for the objectives of our study. As reflected in research findings, of 1015 persons interviewed, only 524 (52%) had documents that would prove they had acquired Haitian nationality automatically or had been naturalized at some point in their life as Bahamian nationals. The nationality status of the remaining 491 (48%) persons interviewed remained undetermined because, although they might have acquired Haitian nationality at birth, they were unable or unwilling to fulfill requirements to be recognized as Hattian citizens. Finally, among these 491 persons, 42 were red-flagged as possible cases of statelessness. After in-depth interviews conducted by researchers, we found that of these 42 red-flagged cases, 16 would be stateless persons because, even if they moved forward to be registered as Haitian citizens, it would be materially impossible to prove Haitian descent according to the conditions required in Article 11 of the Haitian Constitution.

Write questions: Following our second presentation, this time on Bahamian nationality laws, trainees were asked to gather in groups to develop three questions based on the texts presented to them and to create "intertexts," with interpolated sets of questions. Finally, in one of our favorite Pre-Texts activities called "Literature on the Clothesline," trainees published their intertexts on a clothesline with clothespins to display their work while reading the work of peers. The objective of this activity was to continue using legal texts as "raw materials," this time to write questions that they would ask in interview (see intertexts 1 and 2 in Table 1, below) or to write questions challenging the legal framework on Bahamian nationality (see intertext 3).

Intertexts 1 and 2 provide examples of questions addressing the exclusions made in Bahamian laws regarding age, parentage, marital status, and the administrative barriers to acquiring Bahamian nationality. Discussions on administrative barriers were vital to grasp the complexity of problems intertwined in the process of acquisition of Bahamian nationality. Guided by simple questions, the discussion allowed us to foresee cases of persons who, holding no other citizenship, they would be at risk of statelessness because: 1. being under the age of 18 they are ineligible to register or be naturalized as Bahamian citizens, or 2. being eligible (by age) to be registered or naturalized, they have not applied or had applied but have not acquired Bahamian nationality. As it was eventually found in our study, of 491 respondents who remained with undetermined nationality, 276 (56%) had applied but have not acquired Bahamian nationality due to problems with supporting documents; problems understanding or obtaining guidance to continue the application process; inability to continue paying the costs of application; reluctance to apply for the Haitian passport as pre-requisite to continue the process to acquire Bahamian nationality, or are waiting (some for several years) for a final response on their application for Bahamian citizenship. The remaining 215 (44%) have never applied to be registered as Bahamian citizens because they are unable to meet formal requirements regarding proof of Haitian nationality; are not willing to comply with the specific requirement to present a Haitian passport; are unable to pay the costs of application; were unable to meet the deadline to apply for registration as Bahamian nationals under Art.7; or are simply unaware of possibilities to obtain citizenship.

In Intertext no. 3, trainees addressed the problem of exclusions very differently. This Intertext was written by two women, here referred to as "EL" and "DA." Together they argued that the only purpose of exclusions -based on gender and marital status of parents- is to treat foreigners unfairly. Using an argument of "fairness," trainees did not settle for a traditional doctrinal perspective about "what is the Law," nor for an elaboration of questions to gather facts corresponding to "the Law as is." Instead, they challenged the popular opinion that the Law is unambiguously given, and interpretation is a simple mechanical application. They argued, instead, that the Law should pursue higher moral objectives. During the presentation of their Intertext, DA, a Haitian woman educated in natural sciences, explained that she was a single mother of two children born out of wedlock to a Bahamian father, further she explained that their first question “If a foreign woman has kids with a Bahamian man, why don't the kids have Bahamian passports?” was meant to underline the injustice promoted in Arts. 6, 8 of the Bahamian Constitution, which read jointly with Art. 14 (1) exclude children born out of wedlock, to a Bahamian father and a non-Bahamian mother, from acquiring Bahamian nationality at birth. In their second question “why does unmarried people have more rights than married people?” both trainees began by making a disclaimer regarding their personal views in favor of social conventions like marriage and matrilineal parentage. Then they asked if it was true that moral conventions were a basis for the exclusion made in Arts. 6, 8 and 14 (1), why is it that Art. 9 excludes children born to a married Bahamian mother from acquiring Bahamian nationality at birth? The only possible answer would be that the mother is married to a foreigner. Finally, against this backdrop where the common link for exclusions in Bahamian laws is the existence of a foreign parent, their third question became self-explanatory: "Why Bahamian treat foreigners unfairly?" Moreover, “DA” asked, how is it possible that, in The Bahamas, a paternity test is not accepted in courts to afford her two children a legal remedy concerning their deprivation of Bahamian nationality?

How was DA’s and EL’s input valuable? Discussions relating to the nationality status of children among affected communities underlined the increasing likelihood of their becoming stateless persons, a problem that should be a prime concern of Bahamian authorities. In fact, the findings of our study came to show that of 491 respondents classified as persons of undetermined nationality, 107 (22%) have at least one child under the age of 18, for a total of 197 dependent children.  Only 19 (10%) of these 197 children had proper nationality documents. Being children of respondents with an undetermined nationality, acquisition of Haitian citizenship would be contingent on the nationality of their other parent. However, children whose both parents are of undetermined nationality or were born to an unmarried Bahamian father would be either stateless or at risk of statelessness.

To conclude, different types of questions asked in different intertexts turned out to be valuable tools to explain to trainees why researchers had designed a structured questionnaire for questions on both demographic characteristics and nationality status of respondents and a semi-structured questionnaire to gather qualitative information on the impact of nationality laws in their life. During the interviewing skills workshop, we asked trainees to continue working in groups to interview each other. When DA interviewed her peer EL, we observed that in their semi-structured interview, they were able to strike a balance writing a brief life story with all the information necessary to give context to the data gathered in the structured questionnaire. Had we read EL’s response to the structured questionnaire alone, it would seem a mistake that she is Bahamian citizen because data showed that it was materially impossible for her to be recognized as Haitian citizen or acquire the Bahamian nationality. After listening to the voice recording it became clear that, yes, she grew up stateless, but whoever worked her application for Bahamian nationality must have made an exception to grant her Bahamian nationality. Unfortunately, this kind of humane, moral reading of nationality laws was just an exception. Bahamian nationality laws offer no safeguards against statelessness. In turn, the government has never developed appropriate nationality determination procedures to grant nationality rights to children born in their territory who would otherwise be stateless.

"I was born to Haitian parents in The Bahamas. My mother had passed away when I was the age of seven, and I had no dad with me. I was left without a birth certificate or any type of documents. When I was twelve, I went to live with a friend of my mother, and she's the one that helped me get an affidavit to prove that I was born in the Bahamas [..]. "I was detained in 1993, at six in the morning, some Immigration officers broke down our door. I was at the age of thirteen at that time, and there were five of us in the house, they took all of us up to Hawkins Hill Department [..] they let me go with the school ID I had, and the affidavit which the lady had prepared for me [..]. 

“At the age of eighteen I applied for citizenship [..] when I received the application form, I read it and I did just as the application said [..] I provided what was needed, a month later I got a letter saying I needed my mother's birth certificate, a letter from the hospital saying that I was born here, and an affidavit from two persons that knew me from birth [..]. I was not able to find the documents I needed, especially my mom's birth certificate.

“So, years passed by, and cause I applied in 1998, in 2002, I received a letter saying that if they don't have these documents, they are going to close the file. I didn't have my mom's birth certificate, but I gave them a death certificate plus the other documents that they added. But thank Lord they took what I had and probably about a month later they wrote to me saying that I was accepted and then I gave them some additional stuff, some additional documents and about three weeks I came to swear in [as a Bahamian citizen]." 

 

Transcription of voice recording: EL

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[1] Marco Abarca, the author, is an independent researcher in areas of human rights. He holds a Master of Studies in International Human Rights Law from the University of Oxford, United Kingdom, and a Postgraduate Diploma in Rural development and Project Planning from the International Institute of Social Studies at The Hague, The Netherlands.

[2] See Human Rights Situation of Migrant Persons in The Bahamas Report on the 154th Session of the IACHR, June 19, 2015.

[3] See McConnell, Lee; Smith, Rhona (2018), Research Methods in Human Rights (p. 133). Taylor and Francis. See, also, Risse, Thomas; Sikkink Kathryn and Ropp, Stephen C (eds), (1999) The Power of Human Rights: International Norms and Domestic Change, Cambridge University Press.

[4] Sommer, Doris (2014), The Work of Art in the World: Civic Agency and Public Humanities (p. 134). Duke University Press.

[5] Further, Article 24 of the Covenant on Civil and Political Rights, states that every child has the right to be “registered immediately after

birth” and “to acquire a nationality.”

[6] Convention on Certain Questions Relating to the Conflict of Nationality Laws, Art.1. Signed at the Hague, 1930.

[7] According to the International Law Commission this definition is also part of customary international law. See: The International Law Commission, Articles on Diplomatic Protection with Commentaries, 2006.