The Zimbabwean Exemption Permit and the Boundaries of Citizenship
South African identity book. Photo credit Thandeka Khoza.
Editors note: This post is part of a paper to be presented at The Right to Citizenship in South Africa’s Constitutional Democracy Conference hosted by The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC). For more information, visit our events page.
There is remarkably little attention given to questions of access to citizenship in South Africa. This might seem like an odd statement in a context where migration, and indeed a xenophobic sentiment of otherness, pervades public discourse. But, while deeply interconnected, the questions surrounding migration are not the same as those of citizenship.
The boundaries of citizenship – how we determine who is included and who is excluded – determine who has what kind of political representation. These are questions at the heart of a democracy. The Department of Home Affairs’ persistent efforts to restrict access to citizenship highlights a disregard for this fundamental principle of democracy: that access to participation in forming the rules that govern us is central to our freedom.
The case of the Zimbabwean Exemption Permits (ZEP), while often framed as an issue of migration regulations, is I argue here, also a quintessential case of the Department of Home Affairs’ overly-restrictive attitude towards access to South African citizenship. An attitude that comes at the cost of building the democratic vision of a citizenry: a collective project among political equals.
The ZEP (albeit in different bureaucratic instantiations) has been a feature of the South African migration landscape since 2009 but has recently become subject to renewed public debate upon the 2021 announcement that the permit would not be renewed. Permit holders were granted a one-year ‘grace period’ to leave South Africa or regularise their status through another route. The Department has faced significant criticism for this decision and has been forced to extend the grace period twice and, following a recent case brought by the Helen Suzman Foundation, ordered to reconsider the decision following a fair process in line with the Promotion of Administrative Justice Act (3 of 2000).
This recent judgment in Helen Suzman Foundation v Minister of Home Affairs and Others (Case 32323/2022) provides insight into the key rights, values, and priorities that civil society and the Department of Home Affairs have identified in the context of the ZEP. Given the length of the current ZEP holders’ stay in South Africa, it is striking (although strategically understandable) that the direct question of access to citizenship did not arise in this court challenge or other activism around the withdrawal of the exemption.
Why might access to citizenship be relevant to a discussion on a dispensation for those fleeing a socio-political crisis who, by definition, are a case of movement away from a state rather than toward one they seek to join? Indeed, one might argue that the origins of the permit give credence to the Department of Home Affairs’ insistence that the permit was never meant to be permanent. To be sure, in 2009, it would have appeared politically disproportionate and inconsistent with our legislation' and international norms to respond to the Zimbabwean crisis by immediately offering South African citizenship to Zimbabweans who had only recently arrived in the country.
Time, however, matters. The role of time in shaping our duties to each other is familiar in our interpersonal relationships; we can find a similar role for time in our political responsibilities to each other too. Legislation on access to citizenship varies widely around the world, but it is a widely shared norm that time spent living within the state is a central component of citizenship through naturalisation.
“the way we determine the boundaries of citizenship is illustrative of our commitment to core democratic values, such as political representation and political equality”.
ZEP-holders have lived, worked, and studied legally in South Africa for approximately 14 years. As was argued in Helen Suzman Foundation v Minister of Home Affairs and Others (Case 32323/2022), during this period, and ‘as a consequence of being granted these permits, ZEP-holders have established lives, families, and careers in South Africa’. They have paid taxes, both through income tax and VAT, they have contributed to the economic life of the country and have participated in and contributed to public goods such as state schooling.
Such long-term contribution to the public purse and public life ought to (and would in many other instances) lead to the option of full political membership. This is not because citizenship ought to be tied so closely to a principle of contribution, but rather that this level of involvement in public life highlights the kind of long-term commitment to life in South Africa that warrants the ability to choose to become a full member. Indeed, the residency requirement under the current regulations for the South African Citizenship Act is 10 years preceding the application. A failure to create this path to full membership, and so access to full political participation, for long-term residents creates a kind of demi-citizenship and feeds into existing challenges of political inequality among the governed in South Africa.
This speaks to a larger concern identified through observing how, over the years following the original South African Citizenship Act of 1995, the Department has used legislative amendments, regulations, and implementation to build increasingly higher barriers for permanent residents to gain citizenship. The case of the ZEP is, of course, different: the first step to citizenship is already precluded by the conditions of the exemption that ‘disentitles ZEP holders from applying for permanent residence irrespective of their period of stay in South Africa’. Viewing the ZEP with attention to the question of the boundaries of our citizenship, we notice that such a barrier is not only high but designed to be permanently insurmountable.
Considering the normative lens on citizenship reminds us that while we should pursue the necessary short-term wins to protect permit holders, we shouldn’t lose sight of a deeper democratic worry revealed by how the South African state has treated ZEP holders: the way we determine the boundaries of citizenship is illustrative of our commitment to core democratic values, such as political representation and political equality.
The Department – whether they intended to or not – has created a legal route for ZEP-holders to live long-term in South Africa. In doing so, over many years, while not creating a route for ZEP-holders to access political representation, the Department has not only shown disrespect for the lives of ZEP-holders but also a disrespect towards the South African democratic project of building a democracy that provides political equality and political representation for all who live (and are governed) in this land.
