We take a look at what critics say about a number of well-organized bodies that have gained traction with the idea of secession in recent months. Is Cape independence a reality or a myth? One such critic Professor Pierre de Vos is the Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town and author of the Blog Constitutionally Speaking.
De Vos writes:
Fringe groups have long advocated for the secession of the Western Cape from the rest of South Africa, and the creation of an independent state of the Cape of Good Hope. Obviously, the Western Cape is not going to secede and there is no chance of the creation of an independent state. But it may be important to explain why a misunderstanding (or perhaps misrepresentation) of the legal mechanisms available to effect such a radical change, is to be found at the center of this campaign.
On its website, the Cape Independence Advocacy Group states that its aim is “to coordinate and support people and organizations working towards Cape independence. The group says its primary goal is to bring about “a referendum in the Western Cape, with the end goal of secession from South Africa and forming a new sovereign state, with a government that better represents the people of The Cape of Good Hope”.
The campaign is explicitly anti-ANC and implicitly anti-black (the two things are not necessarily the same). It also fails to address important practical questions such as how this new state will finance all the trappings of an independent state – the creation and maintenance of a defense force, of a new department of home affairs, and of a department of foreign affairs with the vast expense required to finance foreign missions across the globe.
But from a constitutional perspective, the most obvious flaw in this plan is that it is not achievable.
Most notably, the idea that secession will be kickstarted by holding a referendum on the matter in the Western Cape is based on a misunderstanding on the nature of referendums. In terms of Section 84(2)(g) of the Constitution, the President of South Africa has the power to call a “national referendum in terms of an Act of Parliament”. Similarly, the Premier of a Province has the power to call a referendum in the province in terms of section 127(2)(f). But this section is not applicable in the Western Cape as – fun fact for the day – the Western Cape has its own Constitution and the power of the Premier to call a referendum in the province is regulated by section 37(f) of the Western Cape Constitution.
Only the President (nationally) and the Premier (provincially) can call a referendum and a decision to do so is a political decision informed by the views and strategic objectives of the President/Premier and their political party. A pressure group cannot force the President or the Premier to call a referendum. (Which is why supporters of the death penalty are wasting their time calling for a referendum on the topic.)
A referendum is called to gain a political advantage, and neither the President nor the Western Cape Premier is going to call a referendum on an issue like Western Cape secession as it would legitimize a fringe issue with no discernible political advantage for the President or the Premier. In short, the idea is dead in the water because the Western Cape Premier will not call a referendum on Western Cape independence because it is not in his and his party’s political interest to do so. (If the DA supported a referendum, it would have even less of a chance to convince more black people to vote for the party.)
The second thing to understand about a referendum is that the outcome is not legally binding on anyone. The President or Premier is legally permitted to ignore the outcome of a referendum if he or she wishes to do so. Which circles back to the point above that a referendum is a political and not a legal mechanism used by the head of the executive to manage political conflict or to gain a political advantage. Sometimes this goes spectacularly wrong, as was the case when Prime Minister David Cameron called a referendum on Brexit, but President Ramaphosa and the Premier Winde are not as dim-witted and hubristic as Cameron, and will not call a referendum on this issue.
This is not the end of the matter. It may be politically difficult for the President or the Premier to ignore the results of a referendum they themselves called, as this could create the impression that the President or Premier is not a man or woman of their word, or that they do not respect a democratic outcome. Which is where the argument that a referendum called by the Western Cape Premier would kickstart secession completely derails.
Constitutionally, questions of secession is not a provincial matter. It is a national matter. Only the national executive and the national parliament can legally bring about secession through, among others, amendment of the Constitution. Even if the Western Cape Premier calls a referendum (he won’t) and even if a majority of voters vote for secession (they won’t either), the referendum will have absolutely no impact as the President and his party will have no legal or ethical obligation to adhere to the results. Such a referendum would have the same impact as one of those Twitter polls that politicians conduct on that App before an election. It will soothe some ego’s, but will have no practical effect (If these polls had an effect, the EFF would have won the election.)
The President and the national executive will have no political incentive to go along with a referendum that it did not call. It will also have no ethical obligation to go along with a referendum it had nothing to do with.
What we would sit with is a non-binding vote, by one of the nine Premiers from a party that is not in government nationally, held in a small part of the country in which an arbitrary group of people who currently reside in the Cape would have taken part in, on a proposal that the governing party would not support even if hell froze over and Ace Magashule came clean on his involvement in corruption. Which means when the folks at Cape Independence Advocacy Group tell people that a referendum will kickstart independence for the Cape, they are either embarrassingly ignorant about the nature of referendums, or they are lying to the public.
To add to this, in order to effect the secession of the Western Cape, at least two thirds of the members of the National Assembly would have to support an amendment of the Constitution along with 6 of the nine provincial delegations in the National Council of Provinces (NCOP). It goes without saying that the outcome of a referendum held among voters of the Western Cape is not going to persuade the NCOP delegates from the Free State, North West, Limpopo, Gauteng and elsewhere to support such a folly. It is more likely to snow in Cape Town in January than it is that 6 of the nine NCOP delegations will support secession of the Western Cape.
In any event, the Constitution does not allow for secession. It is true that section 235 of the Constitution deals with the right to self-determination (something invoked by the folks at Cape Independence Advocacy Group). The section is one of those typical smoke-and-mirrors provisions inserted into the Constitution to placate right wing whites without creating any legal rights or obligations. Why they fell for this is anyone’s guess. The section reads as follows:
The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.
The section does not create a right to self-determination. Instead, it permits recognition of such a right by the national legislature. The national legislature does not have a legal obligation to recognise this right for anyone, and a party cannot force it do so through legal action. Any demand to this effect can happily be laughed off. Given the current balance of power what the section says is that ANC MPs can support the passing of legislation that recognises the “notion of self-determination” if it felt like it. If you believe this is a possibility, your dagga is more potent than what I have ever encountered.
Moreover, the section only allows such recognition “within a territorial entity in the Republic”. This means that it explicitly precludes secession of one part of the country from the rest. There is therefore no mechanism provided for in the Constitution for the secession of the Western Cape (or any other part of the country) from the rest of South Africa.
Of course, the people at Cape Independence Advocacy Group are free to punt their idea of Cape independence – as long as they make clear that they support only legal methods to achieve it. (The rest of us are, of course, also free to mock them and to point out how reactionary the idea is.) But, what they really should not do, is to lie to people by telling them that this goal is achievable and that it will be achieved through a referendum vote in the Western Cape.
Rebuttal by Phil Craig
Phil Craig is the co-founder of the Cape Independence Advocacy Group.
Values underpinning Cape independence
Let us just reflect for a moment on why the CIAG is peacefully pursuing independence in the first place.
The very first paragraph on their website reads:
“The ANC government is leading us into an economic and social disaster. The Western Cape has consistently rejected their agenda, but our democratic voice is rendered redundant by a system where our government is not chosen by us, but despite us.”
Putting aside the law for a moment, let us start by finding common cause.
De Vos, a renowned expert in constitutional law, has clinically outlined just how democratically powerless the people of the Western Cape truly are within the current political dispensation, and under the South African Constitution. The CIAG states that those same people have had their democratic voice rendered redundant by the current system.
Well, at least that is not in dispute then. We are all agreed that the Western Cape has no genuine democratic voice. The only difference it seems is that the CIAG, and no doubt the majority of Western Cape citizens, do not find it quite as funny as De Vos does.
Returning now to the law.
There is no supreme constitution
De Vos speaks as though constitutional law is some fait accompli, yet his counterpart at the University of Pretoria, Professor Koos Malan, wrote a book which was published in 2019, titled There is no supreme Constitution.
Malan states: “None of the articles of faith of the South African Constitution are plausible. The Constitution is not supreme and entrenched. Subject to socio-political forces, it changes constantly and often profoundly, regardless of stringent amendment requirements”.
Constitutional law must also be considered in the context of both natural law and international law.
Section 39 (1)(a) of the South African Constitution states:
“When interpreting the Bill of Rights, a court, tribunal or forum (b) must consider international law.”
Section 233 further states:
“When interpreting the law, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”
What does international law say?
The international covenant of civil and political rights states (article 1):
“All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Should they so wish to be described, the Western Cape populace qualify as peoples, distinct from the peoples of South Africa.
Then we have natural law.
Was the much-lauded South African Constitution created as a vehicle by which to suppress the democratic wishes of the majority of Western Cape citizens, the only province which expressly opposes the policies and conduct of the South African national government?
The professors can duke out the legal details, let us just all be aware that De Vos’s motivations are political not legal, and that his position is a disputed opinion, and not a fact.
What about historical precedent?
The CIAG needs only to point De Vos to history in order to illustrate their point.
Bangladesh seceded from Pakistan despite the latter’s objections. Kosovo seceded from Serbia despite Serbia’s objections, and with the International Court of Justice advising that there is no prohibition of the (unilateral) declaration of independence under international law. Estonia, Latvia, Lithuania, Croatia, Slovenia, East Timor, South Sudan. The list goes on.
Closer to home, did the previous South African constitution prevent the end of apartheid, or Namibian independence? Countries secede on a regular basis, and the constitutional law of the parent state is almost never an insurmountable object if the other conditions required by international law are in place.
In this regard De Vos’s article may prove incredibly helpful to the independence cause. Where the parent state is unwilling to countenance a politically negotiated settlement, international recognition often becomes the deciding factor. The seceding people are required to demonstrate that they have pursued every reasonable avenue of recourse to obtain meaningful self-determination. The very public declaration by a constitutional law professor that those people have no possible prospect of ever obtaining self-determination, and that the self-determination clause in the Constitution was in fact a con-trick, may yet prove very helpful indeed. Perhaps foreign governments will be reading De Vos’s article in due course.
Law must not distract us from what is most important
No article on Western Cape independence should ever conclude with a legal argument.
The central theme of independence is the freedom of a people to collectively and democratically decide how and by whom they must be governed. The people of the Western Cape cannot be enslaved to the ideological suicide of the ANC, the Economic Freedom Fighters, or the political will of South Africa’s other eight provinces.
Let us rather ask the decisive question: “Is it in the best interests of the Cape people to remain in a relationship with South Africa?”
If the people of the Western Cape decide no, then the law, whether De Vos likes it or not, will simply have to accommodate that.
SOURCE: First published at Thoughtleader