Marius Redelinghuys
Marius Redelinghuys

Should foreigners vote?

I recently dealt with at least three queries about the voting rights of permanent residents in South Africa, and specifically the change in their status and recognition.

The first time I had to deal with this concern was in the run up to the 2011 local government elections when a Centurion resident told me his voting rights as a Dutch citizen permanently residing in South Africa changed in the mid-1990s and he’d like an explanation.

While there were 1.6 million self-declared non-citizens in South Africa during the 2011 Census — 850 000 in Gauteng alone — not all of these are here as permanent residents. It is interesting to note, that in 2003 a total of 10 578 persons were granted permanent residence in the country, of which only approximately 10% were economically active.

The general feeling is that they, as officially recognised and legal permanent residents, have a vested interest in the affairs and government of their ward and municipality, and some also claim that this extends to the provincial and national level too.

The argument is that they pay rates and taxes, and often also income tax and a range of companies’ tax through their businesses. They are also involved in civic organisations and charities making a contribution to communities.

The American Revolutionary cry of “no taxation without representation” comes to mind.

The framers of our final Constitution and the Constitutional Assembly, however, disagreed. The provision in Section 6 of the 1993 Interim Constitution was not carried over in the final Constitution. The section recognised the right to vote of non-citizens who have been accorded the franchise by an Act of Parliament.

Our Constitution (Section 19) limits political and voting rights to citizens alone — one the few rights limited in this manner, along with the right to a passport; the right to enter and leave the Republic or reside anywhere in it and the freedom to choose an occupation or trade.

Only adult citizens can vote, and while non-citizens may theoretically join political parties and campaign for them, the Constitution does not protect their right to do so. The former seems to be slightly at odds with the founding provisions which speak of universal adult suffrage.

The endowment of voting and political rights on all adult South Africans everywhere saw the Constitutional Court rule prior to the 2009 national and provincial elections that expats have a constitutional right to participate and vote — consistent with international practice — whether they reside within or beyond the borders of South Africa.

The government and governing party opposed these efforts, publicly due to the alleged administrative burden, but also quite likely because those who left weren’t die-hard supporters, as the eventual results demonstrated.

South Africans who no longer reside in or wish to reside in the country have a legitimate right to have their voice, and vote, heard in the determination of the future of their land of birth, even if they don’t pay any taxes.

Permanent residents, on the other hand, who have clearly indicated their desire to permanently reside in South Africa, who declare they have a vested interest in their new home country and its future, who pay rates and other taxes, and are often involved in community and charitable work, may not have their vote counted and their political voice is neither guaranteed nor protected.

Altering the current status quo, should we wish to do so, not only requires an extensive national dialogue, but also a change in the Constitution with the supporting vote of two-thirds of the members in the National Assembly and the concurring vote of six of the nine provinces.

While the ANC often woos the Hellenic, Portuguese and Italian communities I have yet to see that party publicly address this matter or take a position on the political and voting rights of permanent residents. Similarly, I am not aware of the DA having a particular position either.

While I have not extensively researched international practice on the voting rights of permanent residents, I do know they are not eligible to vote in Canada or the United States and can even be denied naturalisation if they attempt to vote in the latter.

Interestingly, Commonwealth and European Union citizens resident in the United Kingdom can register to vote and participate in elections. This is still open to Zimbabwean citizens despite the termination of that country’s Commonwealth membership. Maybe this is just a function of a guilty colonial conscience?

The issue is quite tricky and requires reflection and debate, especially given the fact that political rights for non-citizens are limited, despite all civil liberties and socio-economic rights being extended to every person within the borders of South Africa — including safety and security, housing, healthcare, water and sanitation, education and freedom of association, expression and demonstration.

Perhaps the debate is more properly centred on the definition, rights and responsibilities, if any, of citizenship in a globalised and interconnected world. Maybe the notion of citizenship has just been unable, or reluctant, to keep up with changing times in an increasingly global village.

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