Abstract/Summary

Absent state regulation, is it legally permissible and normatively plausible for national political parties to require persons to be citizens in order to join as members, or to admit only some non-citizens based on their foreign nationality? Whereas international human rights law, most prominently Article 25 of the International Covenant on Civil and Political Rights (ICCPR), neither requires nor prohibits states to grant migrants the right to vote in all elections, citizenship-based restrictions on other political rights, including the right to join political parties must be justified: the right to freedom of association, which Article 22 of the ICCPR requires contracting states to grant ‘everyone’, includes the right to join political parties qua associations. This paper’s central contention is that, doctrinally and normatively, the imposition by political parties of citizenship-based criteria for their membership is prima facie suspect. While parties may present exclusion of migrants qua migrants as ideologically-driven, such exclusion can be democratically corrosive, by undermining migrants’ ability to fully and meaningfully participate in their state of residence and impoverishing public discourse. Utilising South Africa as its case-study, the paper appraises its political and constitutional position in light of the Constitutional Court’s jurisprudence on regulation of political parties. Critiquing the near-exclusive reliance on section 19 of the Bill of Rights, the paper posits that resorting to section 18 analysis would enable the court reconcile South Africa’s constitutional framework with the doctrinal position in IHRL.