Download this publication - PULP

Migration, street democracy and expatriate voting rights 165
that post-national or urban citizenship transcends the old distinction
between national citizens and non-citizens, and relocates democratic
citizenship in local residence and active everyday life on the streets of the
world’s great migration cities: 83
Today we are caught not only in the reconfiguration of sovereignty but
also in the reconstitution of citizenship. We are moving away from
citizenship understood as national membership increasingly towards a
citizenship of residence which strengthens the multiple ties to locality, to
the region and to transnational institutions. [...] This new modality
decouples citizenship from national belonging and being rooted in a
particular cultural community.
The value of democratic accountability implied in the territorial
jurisdiction of the law requires, as a starting point, that democratic
citizenship be tied to ordinary residence. It requires, as Agamben argues,
that citizens of nations increasingly turn themselves into denizens of
cities. 84
5 Conclusion
A full defence of a post-apartheid theory of denizenship along these lines
will have to wait for another occasion. On this occasion I simply
considered whether the recent voting rights cases of the Constitutional
Court create any insurmountable difficulties for any such theoretical
defence. My conclusion is that they do not. While the Richter case rejects
any distinction between resident and non-resident citizenship for the
purpose of absentee voting rights, the judgment ultimately fails to provide
any constitutional justification for this rejection. On closer analysis, the
Court’s tentative appeals to voter registration and global citizenship cannot
serve as ground for that rejection. Given the Constitutional Court’s own
reluctance in the AParty case to engage with the complex constitutional
connections between residence and political participation, the second
severance order of Ebersohn J should never have been confirmed in the
81 democratic civil society back into the representative law-making and law-applying
institutions of the state. Politics is then reduced to law making and litigation. This point
is forcefully argued by B Honig ‘Another cosmopolitanism? Law and politics in the new
Europe’ in S Benhabib Another cosmopolitanism (2006) 102 against Benhabib’s lawcentred
approach to politics or ‘democratic iteration’. This is also the basis of Karin van
Marle’s critique of Christof Heyns’s struggle theory of rights (see K van Marle ‘Lives of
action, thinking and revolt: A feminist call for politics and becoming in post-apartheid
South Africa’ in W le Roux & K van Marle Post-apartheid fragments: Law, politics and
critique (2007) 34, 41).
82 W le Roux ‘From acropolis to metropolis: The new Constitutional Court building and
South African street democracy’ (2001) 16 SAPL 139; and W le Roux ‘Planning law,
crime control and the spatial dynamics of post-apartheid street democracy’ (2006) 21
SAPL 25.
83
Benhabib (n 4 above) 262.
84 Agamben (n 3 above) 22 - 24.