“It does not matter what the people want, and it does not matter what their duly elected political leaders want. It does not matter that the provincial premier can technically call a referendum, and it does not matter how the electorate would vote even if there were to be one — the South African president could and would ignore the outcome in any event. Finally, and just to make sure everyone completely grasps their place in South Africa’s constitutional democracy, section 235 of the South African Constitution was a ruse inserted to dupe and placate the political right.
Anyone who thinks otherwise is either a “liar or embarrassingly ignorant”, and you should feel “free to mock them”.
This is the summary of Pierre de Vos’s article on Cape Independence and the Cape Independence Advocacy Group (CIAG) which was published on his blog last week. An article De Vos gleefully described on Twitter by stating:
“I had fun explaining why the campaign for Cape independence is really a political impossibility, and why claiming a referendum would help to do the trick is at best idiotic and at worst a good old lie.”
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.