Citizenship is not for sale

12th May 2017

Citizenship is not for sale

South Africa is angry. The sense that the recent cabinet reshuffle, and the mess that has come with it, was at the behest of ‘interests’ in dark corners outside the president’s office has sent a wave of indignation across South Africa. Seldom since 1994 have South Africans risen up in the numbers and diversity – a veritable rainbow in both racial and political terms – as they have over the past few weeks.

‘Our souls are not for sale’, said axed finance minister Pravin Gordhan. For millions of South Africans, this put it in a nutshell. They were not going to accept what was, for them at least, the machinations of a self-interested president and his coterie of handlers headquartered in Saxonwold.

Paradoxically, the turmoil and anger in South African politics has affirmed some of its best qualities.

It has also revealed some of the worst. Speaking at a memorial service to the late Ahmed Kathrada at St George’s Cathedral in Cape Town on 6 April, Jeremy Cronin of the South African Communist Party called for the controversial Gupta clan, originally from India, to be stripped of their South African citizenship and residence rights. No doubt many South Africans would fulsomely agree.

The allegations – backed by apparently credible, if untested, testimony – are serious indeed. The Guptas are widely portrayed as state-capture merchants, hawking cabinet posts and generous payoffs in exchange for a policy shift here, a concession there. Cronin’s colleague, Solly Mapaila, ascribed to them a ‘poisonous nature’.

What could be more fitting that endorsing them out of the country they have been feeding off?

Satisfying, no doubt, but dangerous. This is not just because there is at present no clear legal ground for this, as the Guptas stand accused, not convicted. Nor because this could easily play into a xenophobic narrative. It’s because citizenship is too important a part of our democratic and constitutional order to allow it to be used as a political weapon.

Rather than just the right to live and work in a country and to carry its passport, citizenship is a foundational relationship between the state and the individual. Holding citizenship does not, and should not, imply a mere subjection to the authority of a state. Just as much, citizenship means that the state carries inalienable responsibilities towards its citizens. It is the foundational condition for much of what those fortunate enough to live in democracies enjoy – notably the right to participate in government.

Citizenship declares one part of a political community. It is typically a condition of the vote, the right to form political parties and to stand for public office. Depriving a person of his or her citizenship is a deeply political act, not merely a legal or administrative one. And it is an act loaded with potential for abuse. If at all, it should be undertaken with the greatest care and circumspection.

To borrow the words of Hannah Arendt: ‘Man as man has only one right that transcends his various rights as a citizen: the right never to be excluded from the rights granted by his community.’

This issue is not unique to South Africa. Accelerating migration and increasingly heterogeneous populations around the world has forced societies to face as major policy challenges what might once have been novelties; the questions of dual or multiple citizenships, the growth of ‘ghettoised’ minorities and what all this means for societies’ cohesion.

Added to this is the rise of ideology-driven terrorism, which has seen recruits from across the world joining groups like Al Qaeda and Isis, participating in conflicts against their nominal co-nationals abroad, and returning to carry on the fight domestically. For this reason, a number of countries have mooted punishing those engaging in such activity by stripping them of their citizenship.

The impulse is understandable – why retain people in the political community when they seek to do it harm? – but it is also misplaced.

Such measures cheapen the importance of citizenship. They can invariably not be applied evenly, but target holders of dual citizenship. Or even those merely eligible for other citizenships. This creates a bifurcated system of citizenship and ‘citizenship lite’, native-born versus ‘the others’.

Equally importantly, they turn citizenship into a lever for retribution. This is extraordinarily dangerous. In 1958, a decision of the United States Supreme Court condemned it as effecting the ‘total destruction of the individual's status in organised society’. More recently, in countries such as Canada and the Netherlands, concerns have been voiced that citizenship deprivation measures would enable governments to circumvent standard legal procedures in dealing with serious threats.

This is not to trivialise the very serious challenges that modern societies face. A democratic state has the right to punish those who seek to undermine its interests through illegal or violent means. But laws exist to do precisely this – laws which assume the accused to be citizens with rights and agency, living within the frame of a two-way relationship between the state and its citizens. Dutch legal academic Professor Gerard-René de Groot cautions in relation to developments in his country: ‘You shouldn't undermine the principles of your own legal system because you're afraid of people threatening that system.’

And this is why the SACP’s proposal – and any others similar to it – must fail. It seeks to use citizenship as a means of punishment. In so doing, it would distort the healthy symbiotic relationship between the state and its citizens. It would grant the state altogether overbearing powers that would risk tilting the conception of citizenship towards a privilege conferred and withdrawn.

The precedent would be concerning, and it is not the well-heeled and politically resourceful Guptas who should fear it. On the contrary, the enduring danger is to the shallow-pocketed South African who might find him or herself faced with a vengeful state.

Whatever anger and frustration the country may be feeling, tampering with citizenship rights is a dangerous road to travel. Our souls are not for sale – and neither is our citizenship.

Written by Terence Corrigan, an independent governance, research and communications consultant with an interest in business and corporate governance. He is a Policy Fellow at the South African Institute of Race Relations.