Independence is an emotive subject.
Consequently, those heavily invested in any given position tend to ‘enter into evidence’ the experiences of other countries and snippets of legal text to support the position which they hold.
Strangely Scotland is an example that very few want to examine, despite having probably the closest parallels to the Cape and being a textbook example of how, when governments are willing to handle calls for secession in a mature and democratic manner, the whole process can go remarkably smoothly.
In 1707 Scotland entered into a union creating the United Kingdom. In 1999 a Scottish regional parliament was formed and some powers devolved to it, whilst calls for full independence started to grow. In common with the Cape, the party governing the UK was a minority party in Scotland.
When the Scottish Nationalist Party (SNP) won 19.9% of the vote in the 2010 general election the UK government accepted that there was a groundswell of opinion in favour of independence. Scotland had no specific constitutional right to a referendum but, in the spirit of genuine democracy, the UK government granted a referendum which was held in 2014.
In the referendum only 44.7% voted in favour of independence and Scotland ultimately remained in the UK.
Although in far less convivial circumstances, South Sudan also negotiated a referendum on independence, which ultimately led to their secession from Sudan and the formation of the state of South Sudan in 2011.
What happens when the government of the ‘parent’ country does not allow a referendum?
There is no clearly defined law, but rather a multitude of factors come into play. Essentially two rights now conflict, the parent country’s right to territorial integrity and a people’s right to self-determination. As one legal expert expressed it: no law can make or prevent a child being born, the law only applies to the child once it has been born and exists. This rule, he contended, applies to seceding states. A country or state exists once it exists.
This raises two clarifying questions: (1) What is a state or country? and (2) What are a people?
Here international law does provide clarity. A state must have a permanent population, a defined territory and a political authority (Montevideo 1933 / Badinter Commission 1991), whilst a people are defined as having some or all of: common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection and common economic life (UNESCO 1989).
In the Cape’s case it is therefore fairly safe to conclude that it has the potential to be a state, and the Cape is currently inhabited by a people or peoples who are distinct from the majority peoples of South Africa.
In many cases, perhaps having been denied a referendum, the seceding country will make a ‘Unilateral Declaration of Independence’ (UDI), thus claiming statehood for itself. In 2010 the International Court of Justice provided an advisory legal opinion that a UDI (made by Kosovo) did not contravene international law. Its effectiveness, however, is ultimately defined by the subsequent actions of others, which will then determine whether the state comes into existence or not.
Bangladesh issued a unilateral declaration of independence from Pakistan and, with the support of India, became an independent state. Biafra issued a UDI from Nigeria which never received de-facto recognition, and therefore Biafra never obtained independence.
So where does this leave the Cape?
There are many reasons to believe that, perhaps through gritted teeth, the ANC government of South Africa would respect the democratic wishes of the people of the Cape, were there to be compelling evidence that there was provincial majority support for a referendum.
Were they not to do so there would be no reason to despair. Having met the requirements for statehood and a people, the Cape would then require de-facto recognition of its independence, and there are many likely sources from where it could come. The Western Cape’s two largest export markets are the Netherlands and the UK respectively, both of whom have a direct historical connection with the Cape, whilst both the USA and Australia have shown a willingness to speak up about the internal politics of South Africa. Then the EU recently supported the secession of the Baltic states, whilst Germany and the USA supported the secession of Slovenia and Croatia.
The UK is particularly worthy of mention since the British have a post-colonial policy of respecting the wishes of the majority, regardless of the politics. When Southern Rhodesia made a UDI Britain refused to recognise it on the basis that it did not have majority support, but when Argentina invaded the Falklands it sent a military task-force around the globe to defend the wishes of the majority. In the Good Friday agreement it insisted upon a clause saying Irish re-unification could only take place if the majority of Northern Irish voters supported it. We have already discussed how the UK voluntarily consented to, and enacted, a referendum in Scotland, as well as on Brexit. It is therefore hard to imagine that the UK would not find the courage to speak up in support of a democratic independence declaration from the Cape.
Finally the internal politics of South Africa are beneficial. Unlike Spain, whose constitution specifically prohibits secession (It is also important to note that Catalan independence groups never obtained majority support), South Africa’s constitution leaves the secession door ajar, if not open. The National Prosecuting Authority (NPA) have declared secession a political and not legal matter and the ANC have been quite helpful in creating circumstances that should lead other countries to be more sympathetic to Cape secession than might otherwise be the case. Aside from election results demonstrating how little support there is in the province for an ANC government, policies such as AA and BEE, ConCourt judgments showing government’s unfair discrimination against the majority of Cape peoples, utterances such as those by a government spokesperson (Manyi) about coloured people, court cases over national government trying to limit the powers of provincial government such as it procuring electricity during blackouts, marginalisation of the Afrikaans language and efforts to eradicate parts of Cape culture together with attempts to replace it with a more ‘African’ culture, the racial allocation of emergency relief during the COVID-19 crisis and the denial of a referendum itself, all strengthen the case for the Cape requiring independence in order to have meaningful self-determination.
Ultimately the critical requirement to obtaining independence is the clear and unequivocal support of the majority of the seceding peoples.
A BBC News article which explains the rules for the 2014 Scottish Independence Referendum
We're discussing this topic on a Youtube Livestream today at 13:00, Friday 22 May 2020
Join here: https://www.youtube.com/watch?v=RwndmsJ0WAQ