SA’s democracy cannot survive a state that strips its critics of citizenship: Terence Corrigan - Biznews

Terence Corrigan

There is something profoundly sinister in the suggestion that South Africans who supposedly spread misinformation about the country abroad should be stripped of their citizenship. First advanced by ANC MP Supra Mahumapelo (who seems now to have walked it back) and given support by International Relations Minister Ronald Lamola, it struck at something more fundamental than free expression or even contestation around policy: even as its advocates frame it as a defence of South Africa’s democratic order, it is an assault on its very basis. 

No details of this mooted legislation were made public, and in all likelihood, none were formulated. The political idea, though, was and remains plain enough: this is that citizenship is conditional. It is the view that to be a citizen is a status conferred by the state and that can be terminated by the state. It is to say that citizenship is contingent on acquiesce in the political positions of the government, and that its deprivation is a legitimate penalty for a failure to do so. 

I’ve made the point before that citizenship is not the entitlement to a passport, a right to live in a territory, or a marker of national identity. These things matter, but none of them encompasses the meaning of the term. Citizenship is a distinctly political relationship between the individual and the state. It links them to each other – and each to the broader community of citizens – and confers a unique political standing on the individual.  

This makes citizenship unique to constitutional democracies. All countries have nationals, and some may have multiple nationalities. A monarchy or a potentate has subjects. A cultural, ethnic or religious community has members, adherents and devotees. But it takes a particular order, with its set of rules and institutions, to make citizens.   

Citizenship enables its holders to engage politically in their interests within the polity, as individuals or with others, with or without the approval of the state. This is precisely why citizenship is important, as it describes a relationship that gives citizens a basis from which to question how that authority is used – and in which the state pledges to respect that. 

But it is also a relationship founded on unequal practical power. In the modern world, the state is commonly understood to monopolise the legitimate use of force. It can imprison, confiscate property, and even wield the power of life and death over those under its jurisdiction. It is a rare individual indeed who is able effectively to challenge the state alone with his or her own resources.  

Hannah Arendt, writing from her experience of having been expelled from the Nazi German “national community” on account of being Jewish, termed citizenship the “right to have rights”. Take it away, and everything that follows from that becomes impossible.  

Inherent in citizenship is a restraint on the extent of the use of the state’s coercive powers. One of the most fundamental of these is that the deprivation of citizenship is a matter of the utmost gravity, to be undertaken only in the most exceptional of circumstances. In my view, the centrality of citizenship is such that unless it can be shown that the entitlement to it was never there in the first place – citizenship acquired through fraud, for example – it must be treated as a binding irrevocable condition that only the citizen as the weaker party, and never the state, can sever. And then, only strictly voluntarily. 

This is why I have called citizenship the “sacred contract”. 

Citizenship exists before politics and before behaviour. No citizenship worthy of the name can be determined by fealty to a government’s politics or even indexed to the character and conduct of the individual citizen. 

People may be bad citizens, in that they violate the implicit contract they have with their fellow citizens and the state, and in South Africa there are no shortage of these. (Those seeking examples need not bother with Lex Libertas or the Solidarity Movement; plenty of eminently bad citizens have occupied seats in the cabinet, in our legislatures, civil service and judiciary.) 

This is common to all societies, and constitutional democracies have mechanisms to deal with it. Crimes must be properly specified and adjudicated; but even for those who have perpetrated the most heinous crimes invariably continue to be recognised as citizens. In South Africa, this extends to the franchise. (Note this well: the same Constitutional Court that disenfranchised hundreds of thousands of ordinary people in 1999 for not having a bar-coded identity document ruled that inmates were entitled to vote.) 

Indeed, a constitutional democracy may incarcerate criminals. It may even under circumstances take their lives. But their citizenship? That is a rare penalty indeed, and so it should be. 

Mahumapelo and Lamola were walking a well-travelled path. During the state capture controversy, there were calls to strip the Gupta family of their naturalised citizenship during the state-capture controversy, while a similar demand was made recurrently regarding Janusz Waluś. Be mindful that there were legal issues complicating these matters – were the Guptas property naturalised in the first place, for example? – but the calls were made explicitly as punitive measures. There would have been support for doing so, no question, but doing so would have come at a steep cost to us all, setting an awful precedent for the future. It would have debased the idea of citizenship from a contract foundational to a constitutional democracy, one that evens the ground between the individual and the state, to a conditional privilege that the state can revoke. To my mind, this is not citizenship at all. A sort of nationality perhaps, but not citizenship. 

Perhaps this what is staring us in the face now?  

And perhaps it is worse. The Guptas stood accused of recognisable crimes. Waluś had been convicted of murder, and it was an ironic twist that it was the constitutional democracy he opposed that commuted his death sentence.  

No crimes have been proven against any of the lobby groups that have travelled abroad. Accusations that they have engaged in “treason” remain so much rhetoric until it can be properly articulated what this means, and whether anything they have done meets this definition. I doubt that this is possible, yet I hardly think it is the point. Misinformation is, after all, a vague concept category and not one well codified in law.  

The idea of denationalising critics on these grounds seems to rely on nothing more than the sense that citizenship depends on the approval of the state, and support of its view of the national interest. It is political penalty for a political transgression. And it would leave us all poorer and more vulnerable. 

A constitutional democracy cannot make belonging conditional on political obedience. It can punish crimes, challenge falsehoods and hold people accountable for their actions. But citizenship is not a reward for good behaviour, nor is its withdrawal a legitimate weapon against dissent. The danger in this proposal is not merely that it may be legally objectionable, but that it treats the state as the arbiter of who deserves to belong. Section 20 of South Africa’s Constitution states, unequivocally: “No citizen may be deprived of citizenship.” Take that seriously, literally, and in its fullest expression. Disregard it, and the constitutional edifice collapses. 

Doing so would be a matter of greater disloyalty to South Africa – and more importantly, to South Africa’s people – than anything that is communicated abroad. 

Terence Corrigan is the Project and Publications Manager at the Institute of Race Relations (IRR), where he is in overall charge of bespoke work, and long-form publications. A native of KwaZulu-Natal, he holds a BA (Hons) from the University of KwaZulu-Natal (Pietermaritzburg), and an MPhil from the University of Free State. He has held various positions at the IRR, South African Institute of International Affairs, SBP (formerly the Small Business Project) and the Gauteng Legislature – as well as having taught English in Taiwan. He is a regular commentator in the South African media and his interests include African governance, land and agrarian issues, political culture and political thought, corporate governance, economic growth and business policy. Corrigan is a connoisseur of films, an amateur historian and a lover of the German language.

https://www.biznews.com/leadership/sa-democracy-cannot-survive-state-strips-critics-citizenship

This article was first published on the Daily Friend.