DA need to understand the law on secession better

RIGHT TO REPLY: The CIAG responds to a DA political advisor, correcting him on some critical points of law

Right to Reply: Western Cape Independence is possible – rather debate its merits please.

Click here to read the original article to which we are responding

I am responding to an article written by Mr Joshua Dickinson, a political advisor to the Democratic Alliance (DA), on behalf of the Cape Independence Advocacy Group. The article was titled ‘Western Cape secession is pie in the sky, no matter how you slice it’.

Mr Dickinson and some sections of the Democratic Alliance appear not to understand the law around Cape independence. This article is therefore a great opportunity to publicly set them straight.

The Crux of Mr Dickinson’s article

In essence, Mr Dickinson’s article reduces down to three core assertions: that the notable increase in independence chatter is a symptom of the government’s handling of the COVID-19 crisis, that secession can never realistically overcome the constitutional hurdles required for it to become a reality, and, that a referendum is unaffordable.

The only one of these points that has any merit whatsoever, is the first. Whilst calls for independence have been steadily growing, and its crossover into the political mainstream was in any event inevitable, there is no doubt that the draconian manner in which the national government has imposed its dubious will has served as a reality check to many. EWC and NHI, for example, suddenly loom distinctly larger, a viable political solution tangibly more urgent.

Argument over paying for referendum bizarre

The whole argument around paying for a referendum is both bizarre and completely unconstitutional. Section 127-2-(f) of the South African constitution authorises a provincial premier to “call a referendum in the province in accordance with the national legislation”. The Referendum Act states that “The costs incurred by the chief referendum officer in respect of any referendum held in terms of this Act, shall be defrayed out of the State Revenue Fund”. These rights exist, and they certainly were not penned under the assumption they would not come with a price tag.

This is just one more example of how those opposed to an independent Cape avoid the key secession question, “Is it in the best interest of the Western Cape people to remain in a relationship with South Africa?”, instead diverting the debate to some irrelevant side issue. This cheap trick is used by second-hand car salespersons, they call it the ‘small point close’.

Legal process of secession

This brings us to the most critical of the three points – the legal process.

Remarkable as it may appear, my numerous private engagements with members of the DA have led me to believe that they just do not understand the law and international precedent around secession. I have no idea if Mr Dickinson wrote this piece with or without the DA’s blessing, but in any event, he repeats the same errors they have previously made. I cannot help but be reminded of DA interim leader John Steenhuisen’s comment on Western Cape independence, “I just don’t think it is legally possible”.

Mr Dickinson’s entire argument is premised upon the supremacy of the South African constitution, but the people of the Western Cape have rights which are enshrined in international law. These rights are not derived from the constitution, and they take precedence over it. South Africa is a founding member and signatory to the United Nations (UN). The UN have explicitly defined these rights, and there are numerous international precedents where these rights have been enacted. The South African constitution itself tacitly acknowledges their precedence.

Section 235 of the South African constitution and international law

Many people, including some in the broader independence movement itself, look to section 235 of the South Africa constitution (the section on self-determination) as the right under which independence could be obtained. To the contrary, independence will not be obtained via the South African constitution. However, the wording of section 235 is interesting. It refers to the rights of self-determination “as manifested in this constitution”. The inference is clear, that the right to self-determination pre-dates, and is not created by, the constitution itself.

That is because the right to self-determination is enshrined in the founding document of the UN, and is also the very first statement in the UN convention on civil and political rights, which is quoted below.

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”

Critically, this right is not given to states, but rather to peoples. In another document, known as the ‘Kirby Description’, the UN describes whom and what defines a ‘peoples’, expressly for the purpose of assigning the right of self-determination. Should they wish to be so defined, the people of the Western Cape meet the criteria laid out under the Kirby description, and therefore, have a right to self-determination which is not dependent upon the South African constitution.

It is also crucial to understand that, just because the South African constitution assigns the right of self-determination to the South African people as a whole, that does not, and cannot, negate the right of the Western Cape peoples to self-determination, in a context distinct to the one provided for in the constitution.

Western Cape does not need South Africa’s permission to secede

This is highly significant because it confirms that the Western Cape does not need the permission of South Africa to secede. The constitution does not need to be changed and the permission of the ANC, EFF, or the other provinces is not required.

Thomas Franck, an expert on international law, advised the Canadian government:

“It cannot seriously be argued today that international law prohibits secession. It cannot seriously be denied that international law permits secession. There is a privilege of secession recognized in international law and the law imposes no duty on any people not to secede”.

Looking again to international law, in 2010, the International Court of Justice advised, in what is referred to as the ‘Kosovo Declaration’, that there is ”no prohibition on the declaration of independence”. In that specific case, Kosovo did not have Serbia’s permission to secede, but did anyway, with the political support of the US and Germany. Neither did Bangladesh have permission when it seceded from Pakistan, with the support of India. There are many more examples.

Western Cape secession, should it occur, will do so as a result of political negotiation. South Africa should be no stranger to this process. It was not the South African constitution that brought about democratic rule. It was not the South African constitution that facilitated Namibian independence. It will not be the South African constitution that holds the key to Cape independence.

In each case it was the democratic will of the people, bolstered by support from the international community.

Independence more achievable then increased provincial powers

In a twist of irony, Mr Dickinson’s suggestion that the Western Cape should rather pursue increased provincial powers, is doomed to failure for precisely the reasons he levels at independence. The centralisation of power is at the very heart of both ANC and EFF policy. Increased provincial autonomy requires a two thirds majority in the national assembly, and the approval of six out of nine provinces. In contrast, independence requires the support of 50%+1 of the Western Cape electorate, one or two heavyweight international sponsors, and a top-notch negotiating team.

Independence is not the pipe dream, increased provincial autonomy is.

Let me close by posing Mr Dickinson the question he should really be asking: Is it in the best interests of the people of the Western Cape to remain in a union with South Africa?

Phil Craig is a family man, a serial entrepreneur, and a co-founder of the Cape Independence Advocacy Group. He is working towards the creation of the ‘Cape of Good Hope’, a first world country at Africa’s southern tip, bringing freedom, security, and prosperity to all who live there, regardless of their race, religion, and culture.