Defining the Content of the Right to Citizenship in South Africa through Ubuntu
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The right to citizenship is entrenched in the Constitution of the Republic of South Africa (the Constitution). This blog explores the concept of citizenship in South Africa according to the socio-legal principle of Ubuntu.
Ubuntu is useful in advocating for and providing a foundational basis for easier pathways to citizenship. This is because the central theme of Ubuntu focuses on communalism, inclusivity, equitable access to social services, political participation, and protection of individual rights. Citizenship promotes social- cohesion and assures that an individual can access other rights and is, therefore, critical for an individual’s existence and is fundamentally supported by Ubuntu.
This discussion aims to provide a different lens to assist policymakers in drafting laws that will aid those wishing to attain citizenship in South Africa.
The Existing Legal Framework
Despite International law and the Constitution protecting the right to citizenship, there have been instances of arbitrary deprivations of citizenship for citizens and non-citizens alike. This is perpetuated by the bureaucratic processes that contribute to the difficulty of accessing citizenship for non-citizens.
Under international law, the words citizenship and nationality are often used interchangeably. However, it is important to note that the two are mutually inclusive but different. To illustrate the difference, Article 15 of the Universal Declaration on Human Rights provides that everyone has a right to a nationality. This enables access to other rights including the right to citizenship and the right not to be arbitrarily deprived of one. Nationality is innate to each person by virtue of being human and can be called a birthright. Nationality can be attained through birth, descent, or place of birth depending on the nationality laws of a country.
In South Africa, a nationality is attained through birth where at least one of the parents is South African in accordance with the principle of jus sanguine. On the other hand, citizenship is administrative. It can be attained automatically through birth and/ or place of birth, and through an administrative process of marriage, and naturalisation. Klaaren states that Citizenship is a legal relationship between the individual and the state, also known as constitutional citizenship.
The South African Citizenship Act (SACA) provides for citizenship based on jus soli basis in terms of section 2(2)(b) for any child who does not have citizenship of any other country. This is a child who would otherwise become stateless if not given citizenship. Section 3 of the SACA ensures that a child born in South Africa to non-national parents can apply for citizenship when the child turns 18. This is dependent on the child’s birth being registered.
Several noteworthy rulings have been made such as, in Minister of Home Affairs and others v DGLR and another (DGLR) the Supreme Court of Appeal ruled that the Department of Home Affairs should promulgate regulations that will enable applications for citizenship to be made for children who would otherwise be stateless.
Mulowayi and Others v Minister of Home Affairs and Another (ruled that it is unconstitutional to require children to wait until they reach the age of the majority to be able to apply for citizenship as this precludes them from accessing other socioeconomic rights. The fact that these important judgments have yet to be implemented increases the number of children who are at risk of statelessness as defined in Article 1 of the Convention Relating to the Status of Statelessness of 1954.
Another cause of statelessness linked to citizenship is the failure to provide effective access to naturalisation procedures. For example, if a parent cannot naturalise, and the state does not safeguard birthright in the territory, a child born to non-citizen parents is at high risk of statelessness, especially if the state of origin lacks effective consular services and the parents are refugees. The risk increases with each generation.
Much still needs to be done to realise the ambitions of the Constitution. Fidelity to the value of Ubuntu demands recognition that aspiring citizens have every right to share these communal ambitions
The South African procedures for naturalisation through permanent residence continue to pose a challenge for many non-citizens including those residing in South Africa through various exemptions and permits (study permits/work permits/spousal permits, etc.) and seeking permanent residence and naturalisation.
These exemptions/permits provide only temporary status, with no options for non-citizens to apply for permanent residence regardless of the number of years spent living in South Africa. Given that the permits were offered as once-off events, migrants from Zimbabwe, Lesotho, and Angola, those who missed the original window for applying have not been eligible to apply during the subsequent renewals, leaving them outside a program that was meant to protect them. The xenophobic sentiments expressed towards immigrants, including legally present workers and asylum seekers, compound the challenges faced by non-citizens and necessitate revisiting citizenship and access to it.
Ubuntu and Citizenship
The socio-legal lens of Ubuntu, now recognised as a constitutional value, may be useful to assist in unconventional thinking. Critics have viewed Ubuntu as a “bloated concept” that means everything to everyone and as such should not be translated into a legal principle. Given the high prevalence of xenophobia, some criticism is legitimate as some South Africans have been unwelcoming and hostile towards non-nationals. It is therefore important to go back to the drawing board and reflect on what it means in the broader African context. How can Ubuntu assist in developing constitutional jurisprudence concerning citizenship, particularly for non-nationals who have become permanent residents and are applying for naturalisation?
In Nelson Mandela’s words, “freedom is indivisible”. Cornell & Van Marle conceptualise Ubuntu as an integral connection between freedom and empowerment that is enhanced and made possible through engagement with people. It is important to ensure that each person contributes to what is considered “togetherness”, which in turn yields a process through which each person can come into their own and create a community that entrenches a sense of belonging for all.
So, how can citizenship be reimagined through Ubuntu?
The case of Rafoneke and Others v Minister of Justice and Correctional Services and Others (Rafoneke) shows how the pathway to citizenship could have been made possible through the permanent residence route and naturalisation. In this case, the applicants had studied in South Africa and complied with all the requirements to be admitted as legal practitioners. However, due to their lack of citizenship or permanent residence, they could not be admitted as such. The state used the Exemption permits to remove the possible route to permanent residency. This exemplifies the injustice of the exemptions granted to Zimbabwe, Lesotho, and Angolan nationals who have resided in South Africa for many years but cannot attribute these years towards permanent residence and, eventually, naturalisation.
This begs the question why would the state make it possible for non-citizens to enrol and spend many years on a qualification just to deny them an opportunity to be admitted to practise? In this case, Mr Chakanyuka is a waiter and cannot practise law per his qualifications. The advantages of an Exemption permit do not seem to translate from paper to practice, and the pathways to permanent residence and eventually naturalisation.
One of the arguments advanced by the Department of Home Affairs in the Rafoneke case was that “granting an exemption to a foreign national for the sole purpose of gaining admission to practise law in South Africa will circumvent the very provisions of the Attorneys Act which reserves the right to practise law in South Africa to South African citizens and permanent residents”. While Rafoneke’s case was dismissed by the Constitutional Court on the grounds that the right to practice law is reserved for South African citizens, it is submitted that in the spirit of ubuntu and inclusivity, there should be more flexible pathways to citizenship through naturalisation for individuals who have studied law in South Africa and have fulfilled all the necessary requirements for admission as Attorneys.
The Department of Home Affairs has been lagging in actioning the rulings of the Court. For example, the regulations that should have been established in terms of the DGLR case, remain outstanding. This demonstrates to some extent, that the principles of ubuntu still need to be considered as a foundation which is based on mutual consideration and interest of the non-citizens.
Conclusion
Non-nationals, especially permanent residents, through their engagements within South Africa, have become part of the ethical interactions that make up the country and should be considered part of the promise for justice offered by the Constitution. Furthermore, the principle of ubuntu would require that administrative processes be transparent and clear so that easier pathways are available for non-nationals.
Citizenship should be viewed as reconciliatory without the negative stereotyping and stigmatising of non-citizens. The LuVenda saying that “a huna dindi la u lata muthu” (“there is no dustbin to throw away a human being”) is apposite. Much still needs to be done to realise the ambitions of the Constitution. Fidelity to the value of Ubuntu demands recognition that aspiring citizens have every right to share these communal ambitions.
