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Migration, street democracy and expatriate voting rights 143
the country, could not be beneficiaries of the rights in the Constitution. 5 In
Khosa v Minister of Social Development, the Court held that the constitutional
right to social security also applies to citizens of Mozambique who have
permanent resident status in South Africa. 6 Finally, in Union of Refugee
Women v Director, Private Security Industry Regulatory Authority, a minority of
the Court held that the reservation of work in the security industry to
citizens and permanent residents violated the constitutional rights of
refugees. 7 Given this jurisprudence, the crucial question that follows next
is whether the disaggregation of post-apartheid citizenship should be
extended beyond civil and social rights to political rights as well. Benhabib
believes that it should. According to her, the disaggregation of citizenship
reveals its real critical potential precisely where claims are made for an
extension of the process to include voting rights as well. 8 At this point, the
legal and political integration of migrant populations fundamentally
disrupts our traditional understanding of nation state citizenship as a form
of political membership and action.
In this essay I begin to investigate the influence of migration on
citizenship and the allocation of voting rights from the alternative model
of legal (dis)integration suggested by Benhabib. I do so by presenting a
detailed analysis of two recent judgments in which the issue of migrant
voting rights was served before the South African Constitutional Court for
the first time. 9 The discussion most immediately involves the question of
whether resident citizens retain the constitutional right to vote in general
elections. I argue with the Constitutional Court that they do. The
discussion inevitably includes the question of whether non-resident
citizens (expatriates) retain the constitutional right to vote in the general
elections of the Republic. I argue (some would say against the
Constitutional Court) that they do not.
5
[2004] ZACC 12; 2004 4 SA 125 (CC); 2004 7 BCLR 775 (CC).
6 [2004] ZACC 11; 2004 6 SA 505 (CC); 2004 6 BCLR 569 (CC).
7 [2006] ZACC 23; 2007 4 BCLR 339 (CC).
8
According to Benhabib, the disaggregation of citizenship rights is a political process
that is centred on the democratic iteration of cosmopolitan norms; a process that finds
its clearest expression in the debates around migrant citizenship and voting rights in
Germany and the European Union. As an example of democratic iteration, Benhabib
discusses the enactment of a new citizenship law by the German Federal Parliament in
January 2000, in direct response to the 1990 judgment of the German Constitutional
Court in which a law that granted resident non-citizens the right to vote in municipal
elections was declared unconstitutional (Benhabib (n 4 above) 62 - 67; BVerfG 83, 37
Ausländerwahlrecht Schleswig-Holstein). Even before the adoption of the new
citizenship law, the judgment of the Court had been overtaken by the Maastricht Treaty
of 1993, which granted the right to vote in municipal elections to all European citizens
on the basis of residence alone. Benhabib (n 4 above) 35 goes as far as claiming that
critical theory finds its contemporary expression in the drive for the extension of voting
rights as part of a new ‘politics of cosmopolitan membership’. This politics concentrates
on rights litigation that burdens courts with the task of ‘negotiating the complex
relationship between rights of full membership, democratic voice and territorial
residence’.
9 Richter v Minister for Home Affairs [2009] ZACC 3; 2009 5 BCLR 448 (CC); AParty v
Minister for Home Affairs; Moloko v Minister for Home Affairs [2009] ZACC 4; 2009 6
BCLR 611 (CC).