Policing Battle Could Be Resolved Through International Law

PRESS ARTICLE: Could international law and the right to self-determination hold the key to resolving the battle between over Western Cape policing? (Cape Times)

Policing in the Western Cape, and the stand-off between Premier Alan Winde and Police Minister Bheki Cele over who should control the South African Police Service (SAPS) in the province, has once again erupted into a war of words. Cele has been on the back foot since his very public spat in Khayelitsha with Action Society’s Ian Cameron over the poor standard of policing which subsequently went viral on social media. Both Action Society and the Democratic Alliance (DA) are publicly campaigning for Cele’s removal from office.

In 2019, Western Cape voters elected Premier Alan Winde on the promise of trying to take control of policing in the province, and in July 2021 a poll conducted on behalf of the Cape Independence Advocacy Group (CIAG) found that 76% of Western Cape residents wanted more powers to be devolved to the Western Cape Government.

The Western Cape has a chronic crime problem. On average, ten people every day are murdered in the province, and if it were an independent country, the Western Cape would have the second highest murder rate in the world behind Venezuela. The South African Constitution assigns control of SAPS to national and not provincial government.  

Since 2000, SAPS has been led by eight police chiefs. Almost all of them have been political appointments, and the first seven have all either been dismissed or resigned as a result of impropriety. One of those dismissed, Cele, was subsequently appointed as the current Minister of Police by President Ramaphosa in 2018.

No progress being made in resolving policing issue

The DA, as the party of provincial government in the Western Cape, claim that policing in the province is under resourced, and that the resources which it does have are allocated sub-optimally. In an attempt to improve policing, the Western Cape Government has established its own LEAP programme, which augments SAPS, and appears to have been relatively effective. However, Premier Winde confirmed recently on Cape Talk that to fund LEAP, the Western Cape has had to reallocate R1bn from its health and education budget.

In September 2021, Premier Winde went to the National Council of Provinces and formally requested control of policing in the Western Cape. In response, Minister Cele stated that not only would he not be devolving control of the police to the province, but that he intended to put a stop to the LEAP programme too

No progress has been made by either side, and as Cosatu marched to the Western Cape parliament to protest the crime rate this week, Winde repeated his call for control of policing. Cele, who was at the march with Coastu, dismissed talk of devolving police powers as noise, telling Winde to approach the Constitutional Court if he wanted control of the police.

What has become abundantly clear, is that if Winde and the DA are serious about taking over control of policing, then they are going to have to do an awful lot more than just appealing to Cele’s better nature. At face value the Constitution is on Cele’s side, but the DA is potentially missing a trick.

Self-determination as a solution

All too often the South African Constitution is perceived as an insurmountable object, even when critical ethical issues are at stake such as public safety and the right to life, but this simply isn’t the case. The Constitution, as it itself recognises, is just a part of the legal framework which governs South Africa.

When it comes to the devolution of power, one area the Western Cape most definitely should be considering is international law, and more specifically the jus cogens right to self-determination. In sections 39(1)(b), 232, and 233, the constitution gives authority to international law, whilst since 1994, South Africa has ratified three international treaties which guarantee the right including the African Charter on Human and Peoples rights which in chapter 20 states:

All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.’

Traditionally the right to self-determination has been considered by many to be confined to decolonisation, but in contemporary international law it has taken on an entirely different context, and one which is perfectly suited to the Western Cape’s pursuit of autonomy.

International law has evolved

On 23 March 2012, the United Nations (UN) appointed Dr Alfred De Zayas as its first ever ‘Independent Expert on the Promotion of a Democratic and Equitable International Order’. He was a lawyer with a specialisation in human rights and international law.

De Zayas presented several reports to the General Assembly of the UN. A central theme in his reports was the right to self-determination and its contemporary application. He charted how key judgements such as the Supreme Court of Canada’s ruling on Quebec, and the International Court of Justice’s advisory opinion on Kosovo, and the break-up of the former Yugoslavia and Soviet Union had fundamentally changed how the right to self-determination now applied.

He equated self-determination to democracy and categorically stated that people must be in control of their own destinies. He specifically referred to the notion of strong central governments (states) imposing their will onto ‘weaker parties’ against theirs, describing this as ‘neo-imperialism’.

Most significantly, he pointed out that self-determination was not a prerogative that states had the right to grant or deny. States have a legal obligation to promote self-determination, the group of people within the state wanting self-determination simply need to claim it. Once claimed, he clarified, it could be exercised in the form of greater autonomy, federalism, secession, or unification.

Western Cape Government can pass provincial legislation

The only explicit reference to self-determination in the South African constitution is found in section 235, which was written with an Afrikaner volkstaat as opposed to provincial autonomy in mind. The clause applies the right to self -determination to the South African people as a whole, whilst leaving the door open for other applications.

The Western Cape has however already established that its ‘people’ are a distinct subset of the South African population, who differ from the ‘South African people as a whole’. They have done this in the Western Cape Constitution by recognising only three of South Africa’s eleven official languages.

Were the Western Cape to claim the right to self-determination, which they could do by passing provincial legislation, then the national government would legally have no option but to grant it.

Should the Western Cape do so, it would be hard to imagine any circumstances in which the national government could legitimately deny the provincial premier, supported by a clear democratic mandate from the Western Cape people, the right to manage policing in their own province.

Policing is not the only power the Western Cape would like to see devolved, and with the great uncertainty of who will govern South Africa post 2024 looming large, establishing a legal right to Western Cape autonomy at this juncture would seem very prudent indeed.

(A condensed version of this article appeared in print version of the the Cape Times on 16 August 2022)

Cape Times - 16 August 2022

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