Reader’s note: this article makes the assumption (open to much statistical doubt) that the people of the Western Cape wish to secede from South Africa. The writer acknowledges that this is a fringe view within that province, and this article therefore entertains a hypothetical question: what if that fringe view were mainstream? What recourse would the people of the Western Cape have?
South Africa’s struggle against apartheid was founded primarily upon the notion that people ought to be the masters of their own political fate. Indeed, that is the entire premise upon which the notion of democracy rests. It is for this reason that we celebrate the end of the Nationalist government rule in South Africa, for that end gave rise to a new dawn in which the people of this nation were able to choose their own rulers. But what happens to the notion of democracy on an intranational, as opposed to a national, level? What happens if, for example, a province decides it no longer wishes to be a part of a nation?
Buried away on page 121 of the Constitution, under the vague heading ‘General Provisions: Other Matters’, we find section 235 of the Constitution, which 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.
Although this is the only provision in the Constitution to mention self-determination explicitly, somewhat peculiar given that our entire democratic order is founded upon that right, it is certainly not the only provision from which such a right can be inferred. For example, section 10 states that everyone has inherent dignity and the right to have their dignity respected and protected. It is difficult to see how the dignity of the inhabitants of a province who wish to form their own government could be respected and protected by refusing them the opportunity to do so, id est to keep them subservient to a government they no longer recognise as legitimate.
Returning to section 235, let us unpack exactly what it means. It is clear from its text that the Constitution recognises not only the right of the South African people as a whole to self-determination (national self-determination), but also that a community sharing a common cultural and language heritage, within a territorial entity in the Republic possesses this right (intranational self-determination). The Western Cape does appear, at first glance, to meet this requirement. There are, however, two hitches: (i) such an intranational right must exist within the framework of this right, namely the right as formulated in section 235, and (ii) recognition of such a right can only be determined by national legislation. What this means is that (i) the secession movement in question would have to be envisioned by the Constitution itself, and (ii) such a movement could only lawfully be given effect to through national legislation. Part (i) of section 235 is entirely unhelpful as it provides a circular definition of what intranational self-determination means, and part (ii) makes it clear that secession cannot take place by way of a mere referendum or provincial vote; Parliament itself (and the President, as the person who signs Bills into law) would have to approve such a move for intranational self-determination before something resembling an independent Western Cape could be established. At the outset, then, we can safely say that Cape secession within the framework of section 235 is a pipe dream, as no national Parliament (or President) in South Africa’s foreseeable political future would ever sanction a breakaway by one of the most commercially valuable provinces in the Republic.
The next question, assuming the people of the Western Cape were truly determined to be self-determined, an issue itself open to a healthy pinch of scepticism, is whether international law would recognise a unilaterally independent Western Cape? In other words, what would happen if the people of the Cape went rogue and decided to set up their own independent state, much like Ian Smith did to the British in what was then southern Rhodesia in 1965? Article I of the United Nations Charter, the foundational treaty of the UN and therefore one of the most important documents in international law, recognises one of the UN’s purposes as developing friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. Likewise, Article I of the International Covenant on Civil and Political Rights, another seminal document in international law, recognises that all peoples have the right of self-determination. By virtue of that right they freely determine their political status. It therefore appears that both of these documents recognise a right to self-determination which would neatly suit the desires of Cape secessionists. Furthermore, as South Africa has ratified both of these documents, it is bound by them, at least on the international legal stage. There does, therefore, appear to be some legal wiggle room for Cape secession. Whilst the topic is still hotly debated in international legal spheres, the text of documents such as the Charter and the Covenant seemingly suggest that Cape secession may have some legal basis in international law.
In summation, whilst the Cape Independence movement within South Africa appears to be a non-starter before it even takes its first step, optimistic secessionists may have better luck finding a legal basis for their movement in international law than in their country’s own Constitution. Of course, how the optics of such a movement would be represented by the international community is a separate hurdle the secessionists would face, but one which is beyond the scope of this article. For our present purposes, as with most legal answers, whether the Western Cape has a firm legal right to break away from the rest of the Republic is, much like that province in the winter, a very grey area indeed.