The Bahamas

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Legal Resources for The Bahamas Constitution of the Commonwealth of the Bahamas E-Learning Resources eLearning Courses for Criminal Defense lawyers

Background

The Bahamas were originally inhabited by Arawak Indians, who traveled from South America to settle there. However, the Islands were left depopulated by the Spanish, who shipped off the peaceful population to become slaves, just a few decades after the landing of Columbus on San Salvador in 1492. In 1647 a group of English Settlers, called the Company of Eleutheran Adventures, organized a community which became the first permanent settlement in The Bahamas. Piracy then flourished throughout the late 17th and early 18th century until the first Royal Governor, Woodes Rogers, established orderly conduct in 1718. The American War of Independence resulted in 6000 loyalists and their slaves settling throughout the islands and The American Civil War brought further prosperity through the trade of munitions and medical supplies. Now The Bahamas has become most famous as a tourist destination and just over 40 percent of the country's gross domestic product is accounted for by tourism. The Bahamas has been a fully self-governing member of the Commonwealth since it achieved independence from Britain on July 10th, 1973. It is also a member of the United Nations, the Caribbean Community, and the Organisation of American States.

The Legal system

The Bahamas has a legal system based on the English common law which is supported by an American-style constitution. The Bahama Islands (Constitution) Act 1963 enabled Her Majesty the Queen, with the advice of Her Privy Council, to order the independence of the Bahamas through the Bahamas Independence Order 1973, which led to the creation of their written constitution.

Legal aid

The Bahamian constitution sets out the right to adequate trial preparation. It includes the requirement for sufficient time and facilities for the preparation of a defense. Furthermore, the accused has the constitutional right to defend himself in court in person, by a legal representative of his own choice, or at the public expense where so provided by the law of the Bahamas (Chapter III Section 20d). In the Bahamas, legal aid is offered not by the state but by the Eugene Dupuch Law School which provides the opportunity for members of the public to visit its legal clinic. However, they must be entitled to legal aid by the opinion of the Director, and the educational interest and value to the students at the Law School must also be taken into account. The total prison population was recorded as 1,600 prisoners (in August 2012).

Source of Defendants Rights

The rights of the Bahamian people are primarily set out in its written constitution. Article 15 states; "Whereas every person in the Bahamas is entitled to the fundamental rights and freedom of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the protection of the public interest, to each and all of the following namely:

life, liberty, security of the person and the protection of the law;

freedom of conscience, of expression and of assembly and association; and

protection for the privacy of his home and other property and from deprivation of property without compensation".

Furthermore, Article 2 declares the supremacy of the constitution over any other law.

Rights of the Accused

Fair Trial Rights: Section 20 in Chapter III of the Bahamian Constitution sets out the right to a fair trial and states: “If any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law (Section 20 (1)).
The Constitution also declares that every person who is charged with a criminal offence must be given notice of charges “as soon as reasonably practicable”. Furthermore, “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty” (Section 20 (2)).

Witnesses: Defendants in the Bahamas are generally permitted to question witnesses at trial and view government evidence (Chapter III Section 20 (2e)). However, in order to protect witnesses from intimidation or retribution, in some cases witnesses are allowed to testify anonymously. Yet, these efforts are hindered by the fact that 70 percent of citizens live within the 80 square miles that make up New Providence Island and the fear of death (25 witnesses have died in the last 5 years) has led to a shortage of witnesses.

Punishment: The Bahamas outlines the types of criminal punishments in Section 115 of its Penal Code. These include capital punishment for the crime of murder (Section 291) and treason (Section 389), but no longer include corporal punishment (Section 118). The definition of murder is, however limited and reduced to manslaughter by matters of extenuation. These are set out in section 299 and are loss of self-control by extreme provocation, terror of immediate death, belief there was a legal duty to cause death and the disorder of the mind caused by child-bearing (for women). Furthermore, the attempt to prevent an execution is punishable by a sentence of 15 years in prison (Section 446).

Double Jeopardy: In the Bahamas, no person can be tried again on the same charges once they have been pardoned. This right is set out in the constitution which states under Chapter III Section 20(5) that “No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal” and further declares that “No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence” (Chapter III Section 20 (6)).

Ex Post Facto punishment: The Bahamian constitution makes provision for the prevention of retroactively increasing punishment, unless the offence was more severe in degree or description than the penalty would have imposed when the offence was committed. In Chapter III Section 20 (4) of the constitution it states that “No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed”.

Pre-Trial Procedure

Police procedures: The Bahamian police are under five general duties set out under the Police Act of 1965 and subsequent revised editions. These are the maintenance of law and order, the preservation of the peace, the prevention and detection of crime, the apprehension of offenders, and the enforcement of all laws with which the police force is charged.

Ways of Enforcing Rights: Chapter III of the Bahamian constitution is titled the “Protection of fundamental rights and freedoms of the Individual” and describes in detail the protected rights of the Bahamian people.

Pre-trial detention: The general rules for detention are set out in the Bahamian constitution (Chapter III Section 19) and it is generally accepted that the “reasonable” length of pre-trial detention as described in the constitution is defined as no longer than two years. However, there have been mainly complaints of excessive pre-trial detention due to failure to try cases in a timely manner. Furthermore, the electronic ankle-bracelet surveillance system allowing suspected suspects to leave under specific guidelines has created many problems for police, including the tampering of the devices and the re-offending of potential suspects.

Furthermore, it has been found that the average length of detention varied significantly by “nationality, willingness of governments to accept their nationals back in a timely manner, and availability of funds to pay for repatriation” and immigrants often were held weeks or months after serving their sentences pending deportation.

Note that 46% of the prison population is made up of pre-trial detainees (2011).

Court Procedures

Pre-trial:
In the Bahamas, an arrestee is brought before the Magistrate within 48 hours of his arrest. The Magistrate then decides whether the arrestee should be formally charged and, if so, he will enter a plea. If this is a guilty plea the Magistrate usually gives an immediate sentence but if the plea is not guilty, they will most likely be remanded in custody pending trial. There is no reliable way to predict the penalty a magistrate will decide in regards to fines and there is often inconsistency. However, once the fine is paid the arrestee will be released shortly. For more serious offences prison sentences are given, which range from 7 days to life, or a mandatory death sentence for murder. However, in these cases the Magistrate is bound by the sentencing guidelines in the Statute Law of The Bahamas. Through the permission of the court the police can extend the initial 48-hour detention. Furthermore, the right to a judicial determination of the legality of arrests was generally accepted by the government.

Trial and Appeals:
The first court of instance is the Magistrates Court which tries both criminal and civil cases. There are seventeen such courts in the Bahamas and Magistrates have the jurisdiction “to try all summary offenses, investigate all charges of indictable offences and to hear and determine any civil case where the amount to be recovered or the value of the property in dispute does not exceed $5,000.00”. There is also an Industrial Tribunal which primarily deals with trade disputes. The second highest court in the Country is the Supreme Court, with unlimited original jurisdiction in criminal and civil cases and appellate jurisdiction conferred by the Supreme court Act 1996. The Supreme Court consists of a Chief Justice and between two and eleven Justices of the Court. The Bahamian Court of Appeal has the jurisdiction to determine appeals from the Supreme Court and from the Magistrates if there was a lack of jurisdiction, the decision was unreasonable, the decision was based on the wrong principle, illegality had affected the case, or the sentence was too severe or lenient. The court consists of a President, the Chief Justice, and no less than two and no more than four Justices of Appeal. The highest court in the Bahamian judicial system is the Judicial Committee of the Privy Council in London, England. It serves as the ultimate Court of Appeal where such appeal is permissible.

Rights in Prison

Conditions of confinement: According to the Country Reports on the Human Rights Practices in the Bahamas (2012) conditions generally failed to meet international standards at Her Majesty's Prison at Fox Hill (HMP), the country's only prison, with harsh and unsanitary conditions for many inmates. There is a serious issue of overcrowding due to the “large number of petty criminals incarcerated and the backlog in processing at the remand center”, according to the Minister of National Security, Bernard Nottage. To address overcrowding the maximum security block houses detainees (900 last June - twice the number it was built to contain) therefore, approximately 46% of inmates in the block are awaiting trial. There have been reports of 6 inmates confined to cells intended for 1 or 2 prisoners and attempts to install toilets and prevent “slopping” have been unsuccessful. Furthermore, guards complained of the need for repairs, lack of running water, improper management, lack of a full-time dentist, failure to appoint a staff psychiatrist, the damaged roof in the maximum security block, incomplete perimeter walls, and potential violation of the Prison Act. Furthermore, one death of an inmate in 2012 was allegedly due to the authority’s failure to “ensure adequate medical treatment in a timely manner in this case, despite repeated requests for medical treatment.” For maximum-security inmates, exercise is permitted on four days a week for one hour per day. medium-security and minimum-security units have running water and toilets, and, in some cases, a television.

Juveniles: Instead of having a separate section for juvenile offenders the prison has a classification system to protect 16 to 18 year olds them from the most dangerous adults. Offenders younger than 16 are held at the Simpson Penn Centre for Boys and the William Pratt Centre for Girls. Common escapes have led to the minister of social services identifying the security conditions at both juvenile centers as an " urgent issue." Juvenile support services, including counseling are provided to those who are in temporary police custody and whose relatives cannot be located. Furthermore, care services are provided to residents of the juvenile offenders’ centers both during and after their sentences.

Immigrant detention: Immigrants are held in the Carmichael Road Immigrant Detention Center which was converted from a school in the mid 1990s. Dormitories are secured with locked gates, metal fencing, and barbed wires and are gender segregated. The maximum number of immigrants recorded at one time during the year was 375 and, when at maximum capacity, additional detainees slept on the floor of the medical building or outside. Children were held with their mothers in the women’s dormitory and unaccompanied minors were housed separately. There are reports that access to basic necessities and medical screening was limited and routine medical checkups were not available. Furthermore, there are reports that physical abuse was regular, causing the alleged death of a Trinidadian male (it was reported by the authorities as respiratory failure). Although the authorities only reported minor complaints from detainees, human rights organizations received reports of rodent - infected living quarters, denial of the ability to contact embassies, no means of making complaints, and broken sinks in the women’s quarter. It has been reported by the authorities that they repatriated 3318 irregular immigrants to their home countries in 2012.

Mental health care: There is a welfare service provided for both juveniles and adults who are convicted of non-serious offences which is intended to provide counselling to inmates of Her Majesty’s Prisons and their relatives. Such counseling takes place during the hours of community service and once completed, a report is presented to the court which is kept by the Probation Officer until the case is completed and then recommendations are made as to the type of services required by the inmate.

Restriction of rights: Reasonable access to visitors and religious observance is permitted in prison. Although there is no ombudsman, prisoners are entitled to an audience with the superintendent or a designee to lodge complaints. This service is available every day of the week except Sunday. There have been reports that the government did not consistently grant requests to access detention centers and maintained bureaucratic procedures for NGOs therefore preventing regular visits.

Women: There is a separate women’s unit in the prison. Conditions for women are “less severe and less crowded” than for men but the same work release programmes are not available for women as they are for men. Female prisoners make up only 6% of the prison population in the Bahamas (August 2012)

Resources

- The Government of The Bahamas: Overview of The Bahamas: https://www.bahamas.gov.bs/

- Constitution of the Commonwealth gf The Bahamas: https://mofa.gov.bs/wp-content/uploads/2016/02/TheConstitution_11.pdf

- United States Department of State, 2012 Country Reports on Human Rights Practices - Bahamas, 19 April 2013, https://www.refworld.org/reference/annualreport/usdos/2013/en/94625 [accessed February 2025]

- Penal Code of the Bahamas: https://seafarersrights.org/legal_database/penal-code-of-the-bahamas/