Abstract
The South African concept of constitutional citizenship draws on national and African traditions in addition to its firm grounding in international law. Furthermore, as drafted, it crystallizes the potential to ground national citizenship within a global order. This potential remains apparent in the interpretations of constitutional citizenship offered, thus far, in South Africa's democracy in the doctrinal fields of equality and socioeconomic rights, diplomatic protection, and the right to vote. In each of those fields, the dominant interpretation is that of lawful residence citizenship, while the opposing view is that of republican citizenship. In equality and socioeconomic rights, the Constitutional Court has followed the relatively clear constitutional text and interpreted citizenship, essentially, to include those with permanent residence. In diplomatic protection, the Court has taken as its touchstone international practice but, nonetheless, has moved ahead of that criterion to articulate a doctrine with considerably more power than seen elsewhere. Finally, in a series of right-to-vote cases, with neither a clear text nor external practice on which to base itself, the Court has cautiously tilted in favor of a concept of citizenship consistent with a globalizing world.
1. Introduction
It is not as if there was no citizenship in South Africa before 1994 and the coming into effect of the interim constitution.1 Prior to the advent of its constitutional democracy, the republic indeed had a concept of citizenship within its constitutional tradition—but it was largely based in statute and simply did not count for much.2 This was true for its citizens of whatever race group.3 While much of anti-apartheid discourse was cast in the language of citizenship, it was the rights of citizenship and the practices and implementation of a richer, expanded version of democracy that was demanded—not the status of citizenship per se. Indeed, the assumption behind the oft-heard accusation leveled by blacks against whites of having been made “foreigners in the land of our birth” was the existence and shared status of South African citizenship.4 In any case, 1994 and the advent of constitutional democracy marked a clear new beginning and an entirely new concept of constitutional citizenship for the South African population.5 Soon replaced by a “Final” Constitution, the interim constitution began the important work of consolidating the various bureaucracies regulating the movement of the hitherto separate South African populations.6 Most importantly for the purposes of this article, it gave expression through text to that new concept.
The best available data on the number of noncitizens in the South African population indicates a significant and growing number but, nonetheless, a number smaller than many citizens and domestic policy makers assume is the case. The leading scholars on the topic frankly admit, “No one knows how many international migrants are in South Africa, how long they have been there, how long they stay, or what they do while they are in the country.”7 In 2007, the total number of foreign-born residents was plausibly just over 1.2 million or 2.79 percent of the population out of a total of about 45 million. Counting the number of temporary entries approved for purposes of work, study, business, holiday, contract, border traffic, transit, and other categories reveals that between 9 and 10 million such entries were granted in 2007. This would mean that temporary permits equivalent to 20 percent of the population were issued in a single calendar year. In terms of the asylum system, first implemented in 2001, by the end of 2007 there 170,865 asylum seekers, even though, throughout the system's seven-year regime, only 36,736 people had been recognized as refugees in terms of the Refugees Act 103 of 1998.
The statistical picture would not be complete without referring to the large and increasing numbers of deportations. This annual figure reached 266,067 in 2006, consisting largely of deportations to Zimbabwe. While the available data mixes domestic (for example, province to province) and international migrants, the spatial distribution of these migrants is also significant. As Landau and wa Kabwe-Segatti note, while “much of the international migration [previously] concentrated in agricultural and mining areas, [s]ince the early 1990s, both international and domestic migrants are increasingly concentrated in the country's urban centres.”8 Within the economic heartland of Gauteng province, the figures are higher—7.9 percent of Johannesburg is foreign born. And the city itself is further differentiated, spatially : “[w]hereas inner-city areas like Yeoville, Berea, and Hillbrow now are close to or above 50% foreign-born, the number of non-nationals is negligible elsewhere in the city.”9 Landau and wa Kabwe-Segatti also provide a brief overview of the origins of current migrants: “[t]he great postapartheid change is the massive influx of both permanent and temporary African and Asian migrants. Among these are significant numbers of refugees and asylum seekers. Although European permanent immigrants continued to dominate in absolute terms until 1998, since 2000, most migrants have come from Africa and [Asia].”10
Rights to citizenship are to be found in two primary texts in the South African Constitution of 1996. As one might expect, one site is firmly and clearly set within the Bill of Rights, the second chapter of the South African Constitution.11 Here, section 20, entitled “Citizenship,” provides: “No citizen may be deprived of citizenship.” Following this somewhat terse clause, the four subclauses of section 21—entitled “Freedom of Movement and Residence”—arguably grant more substantive rights to two particular classes of persons the rights in two of the subclauses belong to “everyone,” while the rights in the other two accrue only to “citizens.” Everyone has freedom of movement and the right to leave the republic.12 Citizens have the right to enter, remain in, and reside in the republic as well as the right to a passport.13 Finally, in the other two most prominent texts regarding citizenship within the Bill of Rights, two rights are limited entirely to citizens: political rights and the freedom of trade, occupation, and profession.14 The second site of constitutional citizenship lies outside the Bill of Rights and, interestingly, is placed in the chapter before the Bill of Rights, in the founding provisions of the Constitution. Section 3—also entitled “Citizenship”—provides for a common South African citizenship, equality of privileges, benefits, and responsibilities and for national legislation on certain aspects of citizenship such as acquisition.15
The dual nature of this concept within the constitutional texts mirrors the conceptual split between the status of citizenship and the rights attendant on that status. The modern preoccupation is no longer with the boundaries of the community but, rather, with the depth of the rights and benefits conferred or enjoyed. As the discussion to follow should make clear, to date, the Bill of Rights location has had a greater salience within the South African constitutional tradition than the location of citizenship within the Constitution's founding provisions.
In the interpretation and exploration of citizenship to follow, the focus is on the effects of both international law and international migration on citizenship. To this extent, the dimension of citizenship diversity is somewhat downplayed. While South Africa is seen by some as an ethnically divided society, the dominant post-apartheid cultural and legal understanding is of a common undivided citizenship.16 Nonetheless, this choice is not to indicate that the issues of diversity of citizenship are not significant. Indeed, the recalibration of citizenship within the contours of the South African Constitution along this dimension might well be seen as crucial for the concept to play an important global role. In this respect, articulations of citizenship that embrace diversity are of importance. For instance, one aspect of the project of equal citizenship is to reconcile aspects of the state project with African traditionalism, a project arguably and safely underway in several respects.17
To date, the significant interaction between African migration and South African citizenship has not been recognized.18 However, a number of works in a variety of disciplines are beginning to engage this relationship. Some work examines the influence of the country's African (and Asian) population on the development of citizenship in South Africa, a society long characterized as one dominated by an exclusively white settler legacy.19 A largely distinct body of scholarship has begun to examine citizenship in Africa itself.20 A recent Open Society Institute report has concluded that African states “ … manipulate citizenship in order to bar certain individuals from standing for election; to bar certain groups from voting; to escape responsibility for providing social services; or to maintain some illusion of a national identity.”21 The textual location in the South African Constitution where African traditions are most apparently drawn upon is section 3(2)(b): “equally subject to the duties and responsibilities of citizenship.”22
Finally, there is a further, deeper sense in which an aspect of South African citizenship lies beyond the scope of this particular article. This involves the extent to which citizenship represents not merely the diversity of the cultural affiliations and identities of South Africans but, as well, their reconciliation to each other in wake of the tragedy and national crime of apartheid. A number of recent works have explored the ways in which reconciliation might be thought to lie at the core of South African citizenship; in other words, that to be a genuine South African is to have achieved that promise of reconciliation through truth held out by the work of the Truth and Reconciliation Commission (TRC).23 In the view of some, this notion of citizenship-as-reconciliation is the potential result of a particular governance project of forgiveness pursued by the TRC.24 For others, this aspect seems to go even further and is inextricably part of what it means to be a South African. In the view of du Bois and du Bois-Pedain, “[t]oday, South Africans’ political identity is entwined with the value of reconciliation. Being a South African citizen is believing in the value of reconciliation.”25 As du Bois and du Bois-Pedain note, there is solid textual grounding for this view in constitutional language. The famous postamble to the interim constitution states that “reconciliation between the people of South Africa” is necessary to achieve “national unity, the well-being of all South African citizens and peace.”26
Before treating their subsequent legislative and judicial interpretations, it is appropriate to cover the outlines of the relatively recent period of constitutional drafting. The period of constitutional drafting—including the interim constitution of 1994, the South African Citizenship Act 88 of 1995, and the final Constitution of 1996 as well as the two certification cases of the Court—may be said to run from 1993 through 1996.27 What is striking, within this drafting process, is the relative (though not completely uncontested) ease with which the Constitution was understood to provide nearly all its nonpolitical substantive benefits to everyone, not just to those with South African nationality. Granted, there was a certain slippage with respect to several of the subclauses referred to above in response to the stirrings of nativist politics.28 However, by and large, the Constitution remains a document characterized by a language of remarkable universalism, even within its provisions regarding citizenship and migration.
2. Interpreting constitutional citizenship in South Africa
A recent, focused discussion on the character of South African citizenship in the legislative branch took place over the course of the passage of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (“the Mercenaries Act”).29 Among other purposes, the act regulates the participation by persons in the armed services of countries other than South Africa. Notably, section 2(1)(a) of the act prohibits certain persons from participating as a combatant for private gain in an armed conflict. “Persons” is then defined by the act to mean “a person who is a citizen of, or is permanently resident in, the Republic, a juristic person registered or incorporated in the Republic, or any foreign citizen who contravenes this Act within the borders of the Republic.”30 This legislative intervention into the duties and constraints placed on citizens can draw upon significant constitutional backing. In particular, the South African Constitution notes—as one of the governing principles of national security in the republic—that “[t]he resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in the Constitution or national legislation.”31
Several significant judicial interpretations of constitutional citizenship have been handed down over the years since the period of constitutional drafting. In chronological order, there have been three principal litigations: Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another,32 holding that citizenship is an unenumerated ground of prohibited discrimination in terms of the constitutional equality clause; the conjoined Khosa v Minister of Social Development and Mahlaule v Minister of Social Development,33 which extended Larbi-Odam and confirmed the provision of socioeconomic rights on an equal basis among South African nationals and those permanently resident in South Africa without nationality; and Kaunda & Others v President of the Republic of South Africa & Others,34 granting no relief in the context of South African nationals held for alleged mercenary activities, allegedly subject to ill treatment, and exploring to what extent the South African Bill of Rights has a doctrine of diplomatic protection extending to citizens abroad. To these three strands, we may now add the 2009 elections-related case of Richter, where the Court considered and partially agreed with an urgent challenge to the Electoral Act's denial of voting rights to certain classes of citizens residing abroad.35
Larbi-Odam, Khosa, and others in their line can be seen as challenges to distinctions drawn on the basis of citizenship. They arise with regard to events occurring within South Africa, pertain to the conduct of the South African public authorities, and compose the first significant strand of South African constitutional citizenship. The Court's consideration in Larbi-Odam of the claims by a number of teachers to be protected from employment discrimination established the parameters. Articulating a type of “lawful status” citizenship, the Court found that the equality clause would protect this unenumerated status and struck down the provincial regulation denying job renewals on the basis of South African nationality. The Court thus protected the jobs of these permanent residents who were largely of African origin. The Court's reasoning depended on three factors: that foreign citizens were a minority without political muscle, that citizenship was a personal attribute difficult to acquire, and that foreign employees faced specific threats and intimidation.36
Heard on May 13 and 30, 2003, Khosa concerned Mozambican nationals with South African permanent residence applying for social welfare benefits from the South African state.37 Some of the applicants in Khosa were destitute and would have qualified for old-age grants under South African statutory law but for their Mozambican citizenship.38 The applicants had also presented applications for child-support and care-dependency grants. The proceedings of the case (actually of two joined cases) were somewhat chaotic as the government's lawyers initially requested an extension of time (which was denied) and then simply conceded some elements of the applicants’ legal argument at the next hearing date.39
Principally, the applicants asserted their constitutional right of social security, a socioeconomic right found in section 27(1) of the South African Constitution and guaranteed (unlike the political rights, such as the right to vote) to “everyone.”40 Striking down the statutory provisions excluding permanent residents from the socioeconomic right of social assistance, the majority judgment was written by Judge Yvonne Mokgoro.41 As was the case with other socioeconomic rights, the ambit of the section 27(1) rights should be determined with reference to the reasonableness of the measures adopted to fulfill the obligation.42 In two paragraphs that contrasted the right to social security granted to “everyone” with the right of access to land in section 25(5) granted to citizens, Justice Mokgoro confirmed that “everyone,” in the context of section 27, would apply to noncitizens.43 In supporting the application of these socioeconomic rights in this case, she explicitly cited the residence-based nature of the Bill of Rights.44
The Court's interpretation of the socioeconomic right to appropriate social assistance did not end there. Justice Mokgoro needed to consider, specifically, the fact that the applicants here were noncitizens. Indeed, what made this case different from those previously considered by the Court was that the social security scheme put in place by the state to meet section 27 obligations raised an equality issue. In restricting the availability of social assistance to otherwise qualifying South African permanent residents on the basis of their holding foreign nationality, the scheme arguably violated the Constitution's prohibition in section 9 (the right to equality) against unfair discrimination.45 Delving into the Court's equality jurisprudence, Justice Mokgoro recognized that there was indeed a potential violation of the equality right, stating “[i]t is important to realize that even when the state may be able to justify not paying benefits to everyone who is entitled to those benefits under section 27 on the grounds that to do so would be unaffordable, the criteria on which they choose to limit the payment of those benefits (in this case citizenship) must be consistent with the Bill of Rights as a whole.”46 In her view, the criterion of citizenship, thus excluding permanent residents, would not be consistent. While permanent residents can apply for naturalization after five years according to current legislation, this was not within the control of the applicant.47 Moreover, there was no justification offered for the bar to social security benefits during this five-year period.48
In her analysis, Justice Mokgoro considered and rejected American jurisprudence that found discrimination against legal permanent residents to be justified constitutionally. The consideration and rejection came in two segments.49 First, Mokgoro noted that the legislative assumption expressed in the Immigration Act of the equality between citizens and permanent residents was at odds with the social-contract theory of U.S. cases such as Mathews v Diaz.50 Second, Mokgoro noted U.S. cases such as City of Chicago v Shalala, which found rational a policy linkage between national immigration policy and a welfare policy of encouraging self-sufficiency among immigrants, would be inapplicable due to the higher standard of reasonableness with which the Court judges socioeconomic rights.51
Judge Sandile Ngcobo wrote a cogently argued minority judgment, in which Justice Madala concurred. Although he could have viewed this case as one involving equality, Ngcobo accepted, for purposes of argument, that the right of social security was available to everyone, and that this case could be decided in that light.52 However, he went on to consider the effects on the claim of the limitations clause (section 36 of the Bill of Rights). In applying the substance of these tests, Ngcobo's analysis differed significantly from the views expressed and concurred in by the majority of the judges. Ngcobo considered the fact of the applicants’ lack of citizenship as a temporary condition, a condition only existing (should the applicants choose to apply for citizenship) for the five-year waiting period for citizenship.53 Further, his minority judgment noted that legislative provisions existed to provide social grants in exceptional circumstances and existed even to extend the definition of citizens.54 Ngcobo felt that the state's arguments in favor of limiting social assistance in these instances to citizens were successful. The state had raised justification arguments that included controlling the rising costs of the social assistance system, reducing the incentive for foreign nationals to immigrate to South Africa, and promoting the need for resident immigrants to be self-sufficient.55 Additionally, the social assistance limitation effectively provided an incentive for such permanent residents to naturalize (to perfect their permanent residence into citizenship)—a powerful reason in the mind of Ngcobo, who stated “[t]he unequivocal declaration of loyalty and commitment that an alien can give to a country is through naturalization and taking the oath of allegiance. After this a permanent resident becomes a citizen and thus qualifies for social security benefits.”56 Ngcobo thus would have found the statutory limitation on the section 27 right to be reasonable and, thus, decided the case differently.57
The difference in approach between the majority and the minority judgments in Khosa should not be overstated. Still, the animating spirit in the Ngcobo opinion is that of citizenship as an exclusive membership in a community, whereas that of the majority conceives of citizenship as lawful residence—as opposed to membership in a political republic or membership in a cultural bloc or individual participation in a postnationalist universal human rights culture. The majority's lawful-status vision of citizenship, first expressed in Larbi-Odam, still held at least as of March 4, 2004, the date of decision of Khosa.58
For a second significant strand of the South African constitutional definition of citizenship, we turn to cases that are, at heart, assertions of a constitutional right to diplomatic protection. Led by the Court's decision in Kaunda, these cases arise out of events occurring outside South Africa and mostly have to do with the conduct of foreign states.59 For instance, in Kaunda, a number of South African citizens were held in Zimbabwe on various charges related to weapons possession and immigration violations and were involved, allegedly, in a planned but aborted coup in Equatorial Guinea. They sought an order compelling the South African government to take urgent steps on their behalf, including diplomatic representations the Zimbabwean and Equatorial Guinean governments.
The tension apparent in Khosa between a lawful-residence concept of citizenship and a more republican vision of citizenship may also be seen in this later decision of the Constitutional Court. The main judgment, by Chief Justice Chaskalson, articulated an extraterritorial state duty of diplomatic protection of nationals, holding that in terms of section 3, South African citizens are entitled, constitutionally, to request the government of South Africa to provide protection under international law against wrongful acts of a foreign state. This duty is both based in and contrasted with the duty that the state owes to its residents within the territory.60 Here, Chief Justice Chaskalson used the language in section 7(1): “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”61 This clause and particularly the first part of the second sentence—“It enshrines the rights of all people in our country”—seems destined to prove the cornerstone of the lawful-residence understanding of citizenship in South Africa.62
Chaskalson's judgment is in contrast with the concurrence by Ngcobo and with the dissent by Justice O’Regan. In a vein similar to his reasoning in Khosa, Ngcobo's concurrence shows a clear conviction that South African citizenship rights are those consistent with a republican notion of the citizen.63 In a somewhat similar approach, the dissent of O’Regan (who would have granted greater relief than did the majority) also explored the degree of necessity of giving extraterritorial rights to South African citizens, although seemingly only to avoid giving no meaning to this constitutional concept.64 The concurrence and the dissent both would have extended and granted a broader concept of diplomatic protection to be enjoyed by citizens and not by permanent residents. In this, they diverge from the conceptual understanding underlying the majority's refusal to extend relief (at least in the circumstances presented to the Court in Kaunda) to the citizens then outside South African borders.
A case recently heard and decided by the Constitutional Court—Von Abo v Government of the Republic of South Africa & Others—was an attempt to confirm a lower court decision applying Kaunda and granting relief to a South African citizen deprived of property in Zimbabwe.65 Here, the counsel for the claimant sought to extend the Kaunda holding significantly, interpreting that case to hold that “a South African national has two entitlements in respect of diplomatic protection: … a national has an entitlement to request diplomatic protection as a constitutional right; and … because the request is premised on a constitutional right, a national has an entitlement to expect the President to consider such request and to deal with it appropriately; that is, that the President must consider a request properly (rationally) and ought to provide appropriate protection (in line with the government's foreign policy commitments) unless there are compelling reasons not to do so.”66 The Constitutional Court's decision in Von Abo treated only the issue of jurisdiction of a confirming order. The crisply defined issue, as noted, was thus whether “the failure to provide diplomatic protection by the President constitutes ‘conduct’ as envisaged in section 172(2)(a) of the Constitution.”67 In the South African constitutional scheme, the Constitutional Court must confirm orders of unconstitutionality regarding presidential conduct.68 Thus, while the final hearing of the case did not explicitly turn on citizenship, the Von Abo litigation has clarified and consolidated the South African availability of diplomatic protection.69
A third significant strand of South African constitutional citizenship may be defined by a series of cases decided in connection with citizenship and voting. The context of these cases is nearest to those dealing with distinctions regarding citizenship since in each case the litigation arose within South Africa and pertained to the conduct of the South African public authorities. The facts involve, most specifically, the actions and legal interpretations of the Independent Electoral Commission, a domestic public authority with constitutional status and headquarters in Pretoria. Nonetheless, the circumstances of the cases share a significant feature with the line of cases involving diplomatic protection insofar as they concern South African nationals who are resident outside of the territory of the republic.70 To that extent, these cases highlight, dramatically, the symbolic aspects of constitutional citizenship, an aspect not lost upon the advocates presenting these cases.
The litigation in several of these cases was combined and reached the Constitutional Court under the name of Richter.71 The matter at issue was the Electoral Act's denial of voting rights to certain classes of citizens residing abroad, which was challenged on an urgent basis.72 In the Court's determination, the various categories of temporary residence were largely rationalized so as to extend the right to vote to all those temporarily abroad, on condition that they registered.73 As argued, the issue appeared to fall closer to the line of cases concerned with equality rather than to those regarding diplomatic protection. Nonetheless, four of the principal heads of argument specifically referred to the citizenship provisions outside the Bill of Rights, namely, those in section 3.74 The litigation proceeded on the dominant assumption that citizens abroad do have the section 19 right to vote. Since the applicants were all outside the South African territory, one might conclude that governmental involvement would trump the extraterritorial location of the applicants.
In this light, Richter may be seen an example of the Kaunda way of thinking, where the Court is cautiously pulling ahead of global citizenship practices.75 In any case, the decision of the Court turned on the irrationality of the distinctions that the legislation sought to draw between various categories of citizens residing abroad, distinctions that, in the final stage of the litigation, the government chose not to defend.
3. Conclusion: Compare and contrast and coherence?
Do these three strands of Constitutional Court jurisprudence present a unified and coherent vision of citizenship? In any case, should there be a coherent approach in these differing contexts? Some would see in these cases and in the three strands of constitutional citizenship a unifying dimension consisting of the starkly political. Indeed, it is perhaps not surprising that the diplomatic-protection line of cases, in particular, has been subject to this analysis. In the view of one close observer of the Court, Kaunda is a case where the Constitutional Court has compromised on principle and failed to uphold the appropriate balance in the separation of powers.76 In Theunis Roux's view, the case is one of a series of such cases where the Court has compromised on principle in order to avoid confrontation with the political branches, thus safeguarding its institutional legitimacy.77
At a conceptual level, I would suggest that the coherence informing these lines of cases centered on the concept of lawful residence. This concept is at the heart of the Larbi-Odam/Khosa decisions. Here, the vision of the South African citizen paradoxically but definitively includes the permanent resident. It is a vision of citizenship distinct from republican, culturalist, or universal visions. This notion of lawful residence also coheres, clearly, with the Kaunda line of cases. The tool of diplomatic protection as crafted by the Court, while extending beyond South Africa's borders, is rooted firmly in a vision of the protection of the population—the entire population—within the territorial borders. And, finally, such a vision arguably also underpins the electoral jurisprudence, where the preeminent case, Richter, has questioned and further rationalized the status of temporary residence. In all lines of cases, the jurisprudence revolves around the concept of lawful residence rather than nationality per se. Nonetheless, this broad coherence may mask a further dimension of contestation. What is lawful and how resident is resident?
The legal dimensions of the recent xenophobic violence, which took place in the Gauteng and Western Cape provinces in May 2008, and the government's response have not, as yet, been mentioned in this article. In the standard accounts of this violence available thus far, sixty-two persons lost their lives as violence flared first in Gauteng and then later in KwaZulu-Natal and in the Western Cape as well.78 The civil society/humanitarian response was initially a heartening one, although, at least in Gauteng, it proved unsustainable. Unfortunately, a year after the events, it seems relatively clear that little accountability has been achieved. According to a report in the press on May 11, 2009, a year after the violence, not a single conviction for murder or rape had been secured.79
Despite or perhaps because of the violence of the events, its connections to and its implications for the development of themes of citizenship can be explored, fruitfully if only briefly. One view sees the violence as the natural result of either or both apartheid deprivations, visited upon the majority, or the envy of the newly empowered with respect to those from outside the borders who appear to be enjoying a disproportionate share of the spoils. In another, more empirically informed view, the violence is the result of multiple and varied failures of the capacities and leadership of local government. Consistent with this second view, another perspective sees the xenophobic violence as an aspect of the ongoing, contested, yet also constitutive struggle over the current meaning of South African citizenship. The debates over the precise causes and meaning of the xenophobic violence are likely to continue.80
Can one predict the direction South African constitutional doctrine will take with respect to the rights of noncitizens? Two developments might be scrutinized for telltale signs, though they point in opposite directions. The first is the last case in the line of cases regarding equality, Union of Refugee Women,81 which found a statute authorizing the requirement of extensive documentation before refugees could be registered as security guards not to be discriminatory because the trustworthiness of nationals and permanent residents is easier to verify, objectively, than that of refugees. Cathi Albertyn has convincingly argued that the case is explicable in terms of stereotypes, including one that refugees are inherently untrustworthy.82Union of Refugee Women may represent either a backtracking on the Larbi-Odam line or else was simply an unwise case for refugee rights advocates to have tried.
A second and more positive development is the current movement in the political branches regarding a potential dispensation for migrants from Zimbabwe to South Africa. The activity, here, is twofold—within the South African executive and within the structures of the South African Development Community (SADC). Having ignored for a number of years the plight of those fleeing to South Africa from Zimbabwe's collapsing political economy, in April 2009, the government announced a policy of granting renewable short-term work permits to Zimbabwean nationals under certain conditions—“special dispensation permits.” This step was widely called for among human rights organizations, both domestically and internationally, and was welcomed as representing “a positive shift towards a rational, coherent and regionally beneficial migration management approach.”83 While the announced policy was not immediately and fully implemented, its announcement and partial implementation, nonetheless, represented a considerable step toward a more developmental, region-regarding migration policy on the part of the South African state.
The other development, emerging at the regional level, is the concept of regional or SADC citizenship, as seen most clearly in the recent SADC tribunal litigation, In re Mike Campbell (Pvt) Ltd and others v. The Republic of Zimbabwe.84 The tribunal has issued three decisions in this litigation on admissibility, the merits, and, most recently, on contempt and enforcement.85 According to the tribunal, the SADC treaty must be interpreted to mean “that SADC as a collectivity and as individual member States are under a legal obligation to respect and protect human rights of SADC citizens.”86 While the enforcement power is mediated through the political organs of SADC, this series of decisions gives, at least, some legal significance to the concept and status of SADC citizen.
These developments indicate that there may be some growing regional strength even at the same time there is some softening of the judicial protections offered to noncitizens domestically. Indeed, Kaunda—in the relatively positive spin given it here—indicates that there is, perhaps, some appetite in the current Court to explore rights protection for the whole of South Africa's population, regionally and continentally. In any case, what is clear, at the moment, is that there is ferment and movement regarding the rights of Africans in South Africa.
