Submission to Parliament on the Proposed Repeal of Section 235
The Cape Independence Advocacy Group (CIAG) is an advocacy organisation focused on the
advancement of self-determination. As an active participant in public, legal and policy
discourse involving self-determination, the CIAG hereby submits our comments on the
proposed Constitutional Amendment Bill to repeal section 235 of the Constitution.
1. Nature and Status of the Right to Self-Determination
1.1. The right to self-determination is not created by section 235 of the Constitution. It is a
binding right and peremptory norm of international law. As such, it is binding on all states
and not subject to derogation.
1.2. South Africa has affirmed its commitment to this right through its membership of the
United Nations, and its ratification of instruments including the International Covenant on
Civil and Political Rights (Article 1), the International Covenant on Economic, Social and
Cultural Rights (Article 1), and the African Charter on Human and Peoples’ Rights (Article
20), each affirming the right of all peoples to self-determination.
1.3. South Africa has repeatedly affirmed the importance of the right to self-determination
diplomatically and in international fora and is bound to uphold it.
1.4. Section 235 must therefore be understood as recognising and accommodating an
existing right, rather than creating or conferring it.
2. Constitutional Recognition in Section 235
2.1. Section 235 recognises the right to self-determination within the constitutional
framework, without limiting its scope as it exists in international law.
2.2. Its inclusion was intentional and forms part of the negotiated constitutional settlement
which underpins South Africa’s constitutional order.
2.3. Section 235 was intentionally framed in open-ended terms, including “within a territorial
entity... or in any other way”, to allow for flexible and context-specific expressions of the
right to self-determination.
Cape Independence Advocacy Group (CIAG). Unit A3, The Old Tannery, Wellington. 7655
2.4. The reference to self-determination “as determined by national legislation” must be read
in light of the Constitutional Court’s certification of the Constitution (Certification of the
Constitution of the Republic of South Africa, 1996 (CCT 23/96)).
The Court recognised that claims to self-determination arise through assertion and
negotiation, with the Government expected to give effect to the outcome of such
negotiations through legislation. This does not confer on Parliament absolute discretion
over the recognition or exercise of the right to self-determination, the denial of which
would be contrary to international law.
3. Function of the Right in a Constitutional Democracy
3.1. The right to self-determination exists to prevent domination, whether by colonial powers
or by national majorities.
3.2. In diverse constitutional democracies such as South Africa, self-determination plays an
essential role, without which domination by majority groups becomes a significant risk.
3.3. Self-determination provides a peaceful and lawful mechanism by which communities not
governed in accordance with their democratic will can assert greater control over their
circumstances, thereby reducing the risk of conflict.
4. Nature of the Right: Collective, Not Individual
4.1. Self-determination is a collective right held by all ‘peoples’, being communities that share
common characteristics or circumstances. It is distinct from individual rights, which are
held by individual persons.
4.2. The argument advanced by the authors of this Bill, that the right to self-determination is
unnecessary because the Bill of Rights duplicates it, is fundamentally flawed. Peoples’
rights and individual rights are distinct in law and cannot be conflated.
5. Conclusion
5.1. The entire premise of this Bill is fatally flawed. It reflects a fundamental misunderstanding
of the legal status of the right to self-determination, its essential role in a diverse
Cape Independence Advocacy Group (CIAG). Unit A3, The Old Tannery, Wellington. 7655
constitutional democracy, the distinction between collective and individual rights, and the
basis upon which section 235 was included in the Constitution.
5.2. Repealing section 235 will not remove the right to self-determination from the South
African constitutional order. It will remain binding by virtue of South Africa’s obligations
under international law, including the treaties it has ratified. All this Bill will remove is the
guidance that section 235 provides.
5.3. A stated aim of this Bill is to remove ambiguity and confusion surrounding the right to
self-determination within the constitutional framework. For the reasons set out above,
the repeal of section 235 will achieve precisely the opposite.
5.4. This approach is misconceived. Rather than repealing section 235, enabling legislation
should be enacted to give effect to it, operationalising the right to self-determination and
providing the clarity this Bill seeks, but fails, to achieve.
5.5. The Cape Independence Advocacy Group therefore submits that this Bill should be
rejected in its entirety.
A copy of the submission (which will be submitted once the Bill has been tabled) can be downloaded here
