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144 Chapter 5
Once the distinction between resident and non-resident citizens is
accepted as constitutionally mandated by the value of democratic
accountability, it becomes possible to radicalise the idea of resident nation
state citizenship into a form of post-national and nationalist denizenship.
Throughout the discussion my real concern therefore lies with the effect
that the construction of emigrant citizenship and the allocation of absentee
voting rights might have on the continued disaggregation of citizenship as
a critical process, or the allocation of voting rights to various classes of
resident non-citizens. I assume, without arguing the case here, that the
same constitutional principle that governs the allocation of voting rights to
non-resident citizens at one end of the spectrum should also govern the
allocation of voting rights to noncitizen residents at the other. 10 The key
question is whether that principle is to be located in the idea of global
citizenship and diasporic nationalism (as the Constitutional Court seems
at times to suggest), or rather in a robust conception of local or street
democracy. 11
The discussion is framed by two important recent events. On
16 August 2005, the Protocol on the Facilitation of Movement of Persons
was adopted by the Southern African Development Community
(SADC). 12 The Protocol explicitly recognises the right to migrate and to
economically establish oneself throughout the SADC region. However,
the Protocol does not link these newly acquired migration rights to any
post-national notion of community citizenship. It is equally silent about
the political status and rights of economic migrants, both in their host and
sending countries. In more ways than one, the Protocol therefore echoes
the limits of the African Common Position on Migration and
10 I do not question here whether voting retains any link to transformative politics and
whether the focus on voting rights inevitably inscribes the argument within a national
constitutional paradigm. Ample material exists for such an argument. M Hardt &
A Negri Empire (2000) 210, eg, locate the future of republican politics in the antiinstitutional
‘will to be against’ that characterises the ‘multitude’ as opposed to ‘the
people’ of classical republican thought. Compare in this regard the idea of
‘constitutional mob action’ as a legitimate form of political participation celebrated by
LD Kramer The people themselves: Popular constitutionalism and judicial review (2004) 25 -
27. The importance of the right to vote in transformative politics surfaced in a less
radical form in the recent jurisprudence of the Constitutional Court. One of the reasons
presented by Yacoob J in Doctors for Life International v Speaker of the National Assembly
[2006] ZACC 11; 2006 12 BCLR 1399 (CC); 2006 6 SA 416 (CC) for refusing to read a
participatory element into the law-making process, was precisely that it would diminish
the value of the right to vote that is said to form the focus of liberation and postliberation
politics.
11 W Le Roux ‘From acropolis to metropolis: The new Constitutional Court building and
South African street democracy’ (2001) 16 SAPL 139; W le Roux ‘Planning law, crime
control and the spatial dynamics of post-apartheid street democracy’ (2006) 21
SAPL 25.
12
SADC Protocol on the Facilitation of Movement of Persons, www.sadc.int (accessed
4 September 2009). Sec 21 of the South African Constitution explicitly recognises the
right of South African citizens to migrate across state boundaries as an integral part of
the right to freedom of movement. By signing the SADC Protocol, the South African
government has committed.