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Migration, street democracy and expatriate voting rights 145
Development recently adopted by the African Union. 13 Like the Protocol,
the Common Position both embraces economic migration as a
development strategy and restricts itself to the economic rights of Africa’s
diasporic communities.
The danger that this one-sided economic or development approach
might pose to the well-being of migrant populations was sadly underlined
by the wave of xenophobic violence that broke out in South Africa on
11 May 2008. In two long weeks the violence escalated to such an extent
that the military had to be deployed in residential areas to curb the civil
unrest. By the time it was eventually brought under control, the violence
had left more than 60 persons dead, 670 injured and 100 000 displaced.
According to one study of the events, the outbreak of the xenophobic
violence can be attributed to a breakdown of democratic governance and
participatory politics at local government level. 14 As such, the violence
underscores the urgent need to explore ways to legally and politically
integrate migrants through an inclusive notion of post-national and, even
more importantly, a post-nationalist notion of local democratic
citizenship, or more specifically, street democratic denizenship.
2 Formulating the basic question
Any suggestion that a qualitative distinction can be drawn between
resident citizenship and non-resident citizenship for the purpose of the
allocation of voting rights, must from the outset deal with the fact that the
Constitution does not itself distinguish between resident and non-resident
citizens. It simply states that all citizens are ‘equally entitled to the rights,
privileges and benefits of citizenship’. 15 These benefits include ‘the right to
vote in elections for any legislative body established in terms of the
Constitution’. 16 In this manner the Constitution gives comprehensive
recognition to the founding constitutional value of ‘universal adult
13 ‘African Common Position on Migration and Development’ adopted by the Executive
Council at its 9th ordinary session, 25 - 29 June 2006, Banjul, The Gambia (EX CL/
227 (IX)).
14 JP Misago et al Towards tolerance, law and dignity: Addressing violence against foreign
nationals in South Africa (2009) 52.
15
Sec 19(3) of the Constitution. Unequivocal as these provisions might be, they do not
comprehensively define who citizens are. The Constitution explicitly leaves it to
parliament to determine who are citizens and merely imposes a duty on parliament to
adopt national legislation to ‘provide for the acquisition, loss and restoration of
citizenship’ (sec 3(3)). See J Klaaren ‘Citizenship’ in Woolman et al Constitutional law of
South Africa (2008) 60-1.
16
Sec 19(3) of the Constitution. Unequivocal as these provisions might be, they do not
comprehensively define who citizens are. The Constitution explicitly leaves it to
parliament to determine who are citizens and merely imposes a duty on parliament to
adopt national legislation to ‘provide for the acquisition, loss and restoration of
citizenship’ (sec 3(3)). See Klaaren (n 15 above) 60-1.