Beyond idealised liberal countries: Swearing loyalty in a hostile context

Christine Hobden (University of Witwatersrand)

Our debate on the defensibility of mandatory pledges of allegiance for naturalising citizens has not yet considered what such oaths mean in violently xenophobic contexts. In response to the deadly building fire in Johannesburg this September, South African politicians quickly blamed the presence of undocumented migrants – without evidence or empathy for the over 70 people who lost their lives. In the same month, the violently anti-migrant group Operation Dudula registered as a political party for the 2024 South African elections. In South Africa, foreign nationals, regardless of their legal status, are targeted by politicians and citizens in a society characterised by rising anger and frustration over inequality, unemployment, and a lack of access to basic services. Noting the role of the state, political parties, and vigilante groups, UN experts warned in 2022 of serious concerns that South Africa ‘is on the precipice of explosive [xenophobic] violence’. It is within this context that South Africa too mandates an oath of allegiance for naturalising citizens. Can we debate the defensibility of mandating such pledges without considering this background? This contribution uses the South African example to argue that engaging with an expanded geographical, and so also wider political, legal, and social context raises important questions for Patti Lenard’s argument that mandatory oaths of allegiance for naturalising citizens can be defended.

Lenard’s argument is clearly, if not explicitly, centred on mandatory pledges of allegiance in what she terms ‘so-called traditional immigrant receiving countries, including Canada, the United States and Australia.’ We know however that a significant portion of the world’s migration is between countries in the Global South. Some of these countries, such as South Africa, also have mandatory naturalisation pledges. While Peru and South Korea are mentioned by Lenard, the background to her argument and its early respondents is largely drawn from a few western liberal democratic contexts. A focus on South Africa reveals risks to democratic equality and a related risk of reinforcing xenophobic othering through state practices. This insight reveals the importance of noticing that policies that require pledges of allegiance do not exist in isolation and should be carefully considered within the surrounding political and legal landscape that shapes the experiences of naturalised individuals as democratic citizens. We cannot defend mandatory pledges of allegiance in theory alone – and, when applied to and embedded within the fraught contexts of democracies today, mandatory pledges of allegiance are unlikely to remain defensible.

Why require an oath if its benefits can be achieved otherwise?

For Lenard three reasons, taken together, present a strong justification for pledges of allegiance for new citizens: first, the oath generally signals voluntary consent to the authority of the new state; second, expressing this consent via an oath solemnises and publicises the commitment, an expressive dimension that can contribute to welcome by fellow citizens; and third, it creates a meaningful moment of recognition for new citizens. While these outcomes may be desirable, I agree with Lior Erez and Ashwini Vasanthakumar that it is not clear why the act of naturalisation, voluntarily undertaken, does not already sufficiently express this voluntary consent, particularly since the act of naturalisation requires much that proves commitment: long term residency, extensive paperwork, often significant financial costs, at times citizenship tests and language requirements, and importantly, an explicit process to request to be considered for naturalisation. Including a public ceremony in this process at its culmination when citizenship is acquired can provide meaning and public expression without requiring a signed or declared oath of any kind. Indeed Vasanthakumar and Daniel Sharp highlight that much of Lenard’s argument really applies to ceremonies and voluntary oaths rather than mandatory ones.

It doesn’t then appear necessary to have a mandatory citizenship oath for naturalising citizens to achieve the kinds of benefits Lenard has in mind. She does not, however, argue that an oath is essential or necessary in order to achieve them; rather her argument begins with the policy and argues that it can be defensible in light of the role it can play in securing these valuable ends. My objection comes in two steps: First, as pointed out above and in previous contributions, these goods can be pursued in other ways such as through a voluntary pledge; and, second, as I will set out below, this oath should not be regarded in isolation, and when put in its context it comes with a number of risks to building a democratic polity rooted in political equality. Taken together, while pledges of allegiance may not necessarily always be unjustified, requiring new citizens to ‘swear loyalty’ is not defensible in the current global context. Since we don’t need mandatory oaths to express consent, create meaning, or facilitate welcome, the risks they pose are too great to defend. I agree then with Vasanthakumar that ‘an oath [is] a small price to pay perhaps, but that does not mean it should have been asked’. I add to this argument by examining the case of South Africa, to illustrate the wider cost and risks of such a policy against a background of violent anti-immigrant sentiment and institutionalised asymmetry between the status of naturalised and natural-born citizens.

Unequal status among citizens

In the most recent proposed regulations to the South African Citizenship Act, naturalising citizens are required to sign a document declaring that they ‘swear/ solemnly affirm that [they] will be faithful to the Republic of South Africa and will obey and respect the Constitution and all other laws of the Republic and commit to the duties and responsibilities of citizenship.’ The state, as Lenard concedes, does not make a reciprocal pledge in the same manner. But, Lenard argues, the state is nevertheless paradoxically more bound by the cementing of citizenship status than the new citizens themselves, because the state now owes citizenship rights to its new citizens. It is burdensome, difficult, and rare for this citizenship status to be revoked, so we ought to see the state as swearing loyalty in an equivalent, if different, way. Similarly, she argues that ‘the mechanisms by which incoming and natural-born citizens offer their consent need not be the same’. These arguments aim, independently, to respond to two kinds of asymmetry: that between the state and the new citizen, and between the naturalised citizens and the existing citizenry whom they join. These asymmetries are not, however, separate from each other: As I have argued elsewhere, where the relationship between citizens and their state is undermined or failing, this can impact the relationship between citizens – and vice versa. The unequal treatment of naturalised citizens affects not just the strength of the contract between these citizens and their state, but risks undermining political equality and cohesion within the citizenry through the creation of citizenships with different legal protections.

This asymmetry between naturalising and natural-born citizens does not just arise, as Sharp argues, from the additional obligation to obey the law naturalised citizens have generated through this required promise. On Lenard’s argument, this declaration also serves to reassure natural-born citizens that those joining ‘can be trusted to take their role as citizens in their new state seriously’ and, as Vasanthakumar’s contribution highlights, does not require natural-born citizens to reciprocate this reassurance to those who are now equally subject to the collective political project. There is thus a one-sidedness in this need to reassure, and it is made worse by some states’ conditions on naturalised citizenship – conditions to which natural-born citizens are not subject.

For example, the South African Citizenship Act holds that naturalised citizens in South African may have their citizenship deprived not only for procedural reasons, such as fraud or acquisition in conflict with the provisions of the Act, that imply that citizenship has never been legally acquired, but also on the grounds of imprisonment for longer than 12 months and where the ‘minister is satisfied it is in the public interest’. So not only are naturalised citizens expected to explicitly pledge loyalty in a way that natural-born citizens are not, they are also offered a significantly less secure citizenship status. The result is to create asymmetry in the exchange between the new citizens and their new state and between “new” and “old” citizens. The relationship between naturalised citizens and their new state is weakened through these deprivation clauses, and in creating this distinction between naturalised and natural-born citizens, political equality is undermined too.

Rather than offering reassurances of commitment to fellow citizens, a mandatory oath publicises that naturalised citizens have a different status within the state and so also among their fellow citizens. Sharp emphasises the heavier burden on naturalised citizens in virtue of the extra layer of obligation that is mandated, but there are also vastly different risks associated with failing to fulfil these obligations due to deprivation clauses to which only naturalised citizens are subject. This risk is particularly acute for those who no longer have viable ties to their original state, such as refugees, or those who have lived since childhood in the state of their naturalised citizenship. While it is true that such provisions in the law are rarely made use of, and are cumbersome to execute, I disagree with Lenard that the political and procedural barriers to implementing these provisions can be viewed as a sign of the state’s commitments to new citizens. The existence of these conditions in law is central to the nature of the commitment the state makes to naturalising citizens – and, in cases like South Africa, its significantly diminished commitment compared to that for natural-born citizens. For those who, like I do, believe a central, justifying aim of the democratic state is creating space to live as political equals, this kind of asymmetry poses a serious concern.

Access to citizenship in the face of hostility

In addition to the legal context, mandatory pledges of allegiance must be considered in their political context.  In South Africa, this context is one of active and violent xenophobia. In the focus on certain western democracies in this forum so far, some contributors have mentioned the racialised and Islamophobic elements within many current migration regimes. Sometimes these even serve to justify discriminatory immigration policies. South Africa’s simmering violent xenophobia  introduced at the start of this contribution should bring the shared worries about inequality and discrimination into sharper focus. I have argued elsewhere that the South African state is steadily rolling back access to citizenship by naturalisation through legislation, regulations, and on-the-ground implementation. This approach both feeds from, and back into, an increasingly xenophobic public discourse. Against this background, the state has a responsibility to ensure that those whom it admits as citizens are admitted as equals: when we view required pledges of loyalty not in isolation but alongside conditional citizenship and a hostile reception from host citizenries it becomes much harder to defend mandatory oaths of loyalty.

While South Africa presents only one example, it is indicative of a wider global context of growing hostility towards migrants, including, at times, those already long settled in their new state. Requiring a pledge of allegiance is not only unnecessary to achieve the benefits to which Lenard points, but this contextual view reveals that the risks associated with unequal burdens of loyalty should caution us against justifying such a policy.