30 Years into Democracy: Let’s Make Some Changes
“We, the people of South Africa…. Believe that South Africa belongs to all who live in it.”- Preamble of the Constitution of the Republic of South Africa, 1996.
South Africa’s Constitution and its ‘visionary Bill of Rights’ is often hailed as the epitome of democracy. Emerging from a history marked by colonialism, apartheid, social injustice and entrenched inequality, the Constitution has become a cornerstone of the nation’s transformative journey since 1994. It reflects years of struggle and aspirations for a more equitable and inclusive society.
After almost 30 years of democracy, it is crucial to reflect on how we can enhance our constitutional framework for the next phase. A deeper understanding of the Constitution's purpose and vision, especially within certain aspects of the Bill of Rights, remains essential. As we strive for substantive rather than mere formal equality, it is important to constantly adapt and change the way the law works to ensure that it coincides with the manner in which society functions.
To do so, one has to understand that, although the Constitution is Supreme (s2 of the Constitution), it is not immune to controversy and critique, particularly concerning rights such as the contentious property clause in section 25, which allows for property expropriation subject to compensation. Another critique to the Bill of Rights is its failure to include and recognize the right to internet access as a basic right every person should be bestowed with, particularly in our increasingly digital era. In this article, I argue that one of the constitutional provisions in desperate need of change is section 19; the right to vote.
After South Africa’s recent (2024) electoral cycle which saw the African National Congress lose its majority rule and the formation of a Government of National Unity, one cannot help but wonder what the government landscape would look like if South African permanent residents could vote?
An amendment to the right to vote (s19 of the Constitution) may be overdue. Currently, this right is a qualified right, restricted to South African citizens only. However, I propose that it should be expanded to include permanent residents within South Africa. This would allow both South African citizens and permanent residents to equally enjoy the right to vote.
“It is time for permanent residents to not only only benefit from the participatory efforts of our democracy but also from its representative elements.”
My personal experience underscores the urgency of this amendment. While my family members are South African citizens through naturalization, I am a permanent resident that has lived in South Africa since childhood and consider it my home. Despite applying for naturalization in 2016 and navigating a drawn-out bureaucratic process that spanned seven years, my application was only approved in 2023. Now, in 2024, I am still waiting for the final steps to confirm my naturalization. Throughout this period, I have been repeatedly denied the right to vote in elections. This experience highlights the frustrating consequences of the existing restrictions.
The minimal legal distinction between South African citizens and permanent residents further justifies an amendment of the right to vote. Permanent residents and citizens enjoy similar legal benefits such as working rights, legal residency, and access to identification documents. Therefore, denying permanent residents the right to vote infringes upon the principle of equality and their right to dignity under the law.
Many permanent residents have established deep roots in South Africa and intend to remain long-term residents. As such, they should have the right to actively participate in the political process of the country they call home. South African permanent residents are not just foreign nationals but people who actively contribute to the growth of the country’s gross domestic product and economy. Most have families that are also resident in the country. Apart from being holders of the South African passport or voting rights, they are essentially citizens in all but name.
While acknowledging that citizenship grants additional privileges, such as the right to a South African passport, permanent residents should not be excluded from political participation merely due to bureaucratic inefficiencies. Many permanent residents face obstacles in naturalization not out of choice but due to systemic delays within the Department of Home Affairs.
South Africa prides itself on being a representative and participatory democracy. It is time for permanent residents to not only only benefit from the participatory efforts of our democracy but also from its representative elements. In Doctors for Life International v Speaker of the National Assembly and Others, the importance of public participation, particularly in a constitutional democracy like South Africa was explained as follows:
“one of the distinctive features of public participation processes in South Africa has always been that it is firmly grounded in the constitutional imperative of democratic participation and keeping society involved in legislative, policy and other decision-making processes……..The people have a voice in these institutions, not only through elected representatives, but also through access to committee meetings and deliberations. The people also have the right to speak and make representations to committees and meetings, which is in line with the Constitution, which states that ALL people shall be entitled to take part in the administration of the country.”
In line with this precedent, expanding the right to vote to include permanent residents would be reflective of the inclusive principles of democracy such that all individuals who form the fabric of South African society can also influence its political direction.
