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The government’s new Smuggling of Migrants Bill was passed in Parliament on Monday. Still, only after a major controversy that forced the removal of Clause 11, a section critics said offered protection to migrants while only placing the full burden of punishment on the smugglers.

Clause 11 became the most debated part of the bill, causing public backlash and political pushback from Bahamians who believe both the smuggler and the smuggled should face consequences.

Here’s what Clause 11 actually said and why it was ultimately removed:

What clause 11 actually stated

Before it was struck from the bill, Clause 11 read:

“Without prejudice to the applicability of any other law establishing criminal offence, a smuggled migrant shall not be liable to criminal prosecution under this Act, in respect of —
(a) illegal entry into the receiving country or transit country;
(b) remaining illegally in the receiving country or transit country; or
(c) possessing a fraudulent travel or identity document, where such act is a direct consequence of the smuggling of the migrant … and the migrant is a victim of that criminal conduct.”

The clause appears to protect the smuggled migrants from prosecution under the new Act for:

• illegal entry into The Bahamas,
• remaining in the country illegally,
• and using fake documents

as long as those acts happened because they were being smuggled.

The clause positioned migrants primarily as victims of smuggling networks.

What critics said

The official Opposition, the Free National Movement led by Michael Pintard, and members of the Coalition of Independents, argued that Clause 11 imposes unequal accountability because it heavily punishes smugglers but shields smuggled migrants from prosecution under this Act. Many say this made the law one-sided.

“Kill the bill,” Pintard said. “Having been caught as they normally are caught, then they make adjustments, dry eye and not again with any full throated apology and repentance.”

They also said the clause is a potential “pull factor.” Some feared the clause could encourage migrants to willingly use smuggling routes, knowing they would face no legal consequence once in the Bahamas. And it conflicted with public sentiment. Bahamians said both the smuggler and the smuggled should be prosecuted.

What the government says after the clause was removed

Wayne Munroe, leader of government business in the House, said the government intends to reduce human smuggling in the country and strengthen the borders.

“As I have indicated, an [amendment] will be moved to delete section 11. We have heard the outcry. This is a responsive government. This government is responding by removing it. People had. A problem with there being immunity, it is being removed.”

Michael Pintard said he is pleased with the removal of clause 11 but the Opposition will not support the bill.

The bill, though, was passed by the government sometime after 8pm lastnight.

Only the strong survived the boat tragedy on Sunday when 17 Haitians including a child died when a human smuggling vessel capsized in Bahamian waters on their way to Florida.

The dead included 15 women, one man, and a child. The other 25 passengers were rescued from the 30-foot speedboat which overturned in choppy waters in Nassau.

It was reported that 60 people may have been on board the boat and authorities may be searching for up to eighteen missing people, unaccounted for.

In a picture issued by the Royal Bahamas Defence Force, only men were seen sitting atop the capsized vessel, awaiting rescue by divers.

A woman was pulled from the hull of the boat and was reported to have survived due to an air pocket.

Commissioner of Police Clayton Fernander said divers heard a knocking from the hull of the boat and found one woman.

“I think that’s what kept her alive.”

Haitian Prime Minister Ariel Henry said he sympathized with the parents of the victims.

“This new drama saddens the whole nation,” he said. “While sympathizing with the parents of the victims, I launch, once again, an appeal for national reconciliation in order to solve the problems that are driving away, far from our soil, our brothers, our sisters, our children.”

The passengers who survived the ordeal said they paid smugglers $3000 to $8000 to catch the boat ride to Florida. Authorities have since arrested two Bahamian traffickers who are known for other criminal acts.

Twenty-two-year-old Columbian native, Juan Esteban is the sole survivor of the human smuggling ordeal where all of the passengers died during the passage from Bimini to Florida.

Thirty-nine people died in Florida waters on their way from Bimini when the boat capsized.

Esteban described the horrific ordeal on Tuesday at a press conference in Miami where he was reunited with his mother after 11 years.

Esteban said he made the trip with his sister María Camila, who also perished because they were promised that the route –flying into the Bahamas where no visa is required then two short boat rides to Florida, was easier and less dangerous than the Mexico transit.

The Bimini passage to Florida is becoming a popular transit point for human smuggling. In recent times, boats that traversed the route have capsized with missing passengers who have not been recovered.

Of the 39 passengers, authorities found five bodies, but not María Camila.

Juan Esteban said, “They tell you, you’ll be in Miami in three, four hours… It’s all a lie.”

Immigration officials did not detain Esteban but permitted him to join his mother where he will seek political asylum.

He did not say how much he paid for the journey which he said included people from Haiti, Jamaica, the Bahamas, and the Dominican Republic. He said one woman held a baby girl.

“That seemed bad to me, but I had such a desire to get to the country,” Esteban said.

When the boat capsized, he said, one by one, those left in the water began drifting away from the vessel, some dying, others so exhausted they didn’t have the strength to hold on any longer, he said.

By early Monday evening, nearly two days after departing, he was alone.

Dehydrated, he was found by a tugboat that spotted him atop the capsized vessel. He was rescued, hospitalized, and released to the care of his mother.

Thirty-nine people left Bimini aboard a boat on Friday night but never made it to their destination.

US Coast Guards believe it was a smuggling ring. 

The lone survivor who was found atop the capsized vessel said the group encountered srong winds as they traversed the seas which caused the boat to capsize.

The lone survivor was rescued by a passerby and the matter was reported to officials around 8:45 pm on Tuesday.

The search has been ongoing since the unfortunate incident.

Officials say they are searching between Bimini and Fort Pierce for the missing boaters.

Photo credit: CNN (Tina Burnside)