SA Constitution Cannot Prevent Cape Independence

CIAG responds to Prof. Pieter Labuschagne (UNISA) who wrote in Die Burger that, whilst a noble idea, Cape Independence is not achievable and Kaapenaars must set their sights lower

As a co-founder of the Cape Independence Advocacy Group (CIAG), I read Professor Pieter Labuschagne’s (UNISA) response to Dr Corné Mulder (VF Plus) on the viability of Western Cape Independence with interest.

Labuschagne portrayed Cape Independence as a noble yet ultimately futile cause, imploring those involved to set their sights lower. He felt that a referendum on Cape Independence was unachievable, that were a referendum to take place it would do so nationally and would therefore be unwinnable, and that, regardless of the outcome of any independence referendum, the constitutional changes required to enact the secession of the Western Cape would be impossible to achieve.

I am going to take issue with him on each of these points, and in doing so I am going to ask him, and the reader, to step beyond constitutional intellectualism, and into the realm of realpolitik. I will support my argument with relevant historical precedent, and I will challenge the professor to do the same.

Is an independence referendum achievable?

Section 127(2)(f) of the South African Constitution specifically makes provision for provincial referendums, and clause 37(2)(f) in the Western Cape Constitution echoes it. The enabling legislation, which predates the Constitution, needs to be updated to include these provisions. The DA have already published the ‘Electoral Commission Amendment Bill’ which would achieve this. Afriforum have also announced that if parliament does not address this legislative defect, it will take the matter to the Constitutional Court.

The only person empowered by the Constitution to call a provincial referendum in the Western Cape is the provincial premier. The Western Cape is governed by the DA, and they have agreed to fix the legislation, to call a referendum, and to include a question on Cape Independence. They have also publicly stated that, whilst they do not support Cape Independence as a party, they believe it is a decision for the people of the Western Cape to make democratically for themselves.

A referendum on Cape Independence is not only possible, it is highly likely.

Would an independence referendum be provincial or national?

Self-determination is an established, protected, and universally accepted human right. It is the right upon which secession is based. It is a group right and those not belonging to the group do not participate in the process of determining the group’s democratic will on how to enact it (although they may participate in the negotiations that would follow).  

Since 1990 the following territories have held independence referendums where the outcome has been officially recognised; Scotland, South Sudan, Quebec, Montenegro, East Timor, Puerto Rico, Bermuda, Bosnia and Herzegovina, Ukraine, Macedonia, Lithuania, Latvia, Estonia, Kosovo, Croatia, Georgia, Slovenia, Armenia, Azerbaijan, Turkmenistan, Uzbekistan, and Eritrea.

I would challenge Professor Labuschagne to identify for us, in which of these examples did the parent state get to vote alongside the territory wishing to secede in the referendum?

There is no international precedent for the whole of South Africa getting to vote on Western Cape Independence, and any referendum on Cape Independence will be provincial.

Does the constitution need to be changed for Cape Independence to occur?

Secession is by its very nature the rejection of the sovereign authority of the parent state. Arguing that the constitution can prevent secession is like arguing that a marriage certificate can prevent divorce.

Beyond that, anyone who pronounces with certainty on the legality of Cape Independence should be met with scepticism. International Law must be considered, not just Constitutional Law. Even setting aside the pivotal role of international law in matters of statehood, the South African Constitution itself requires this. In International Law secession is a heavily contested subject and not even the world’s foremost experts can reach consensus. Once again, historical precedent is illuminating.

In some cases the parties agree in advance to honour the outcome of an independence referendum. Scotland and the UK is a recent example. This is an unlikely scenario for Cape Independence and the example of Quebec, where the parties squared off legally over who was entitled to do what, is a more realistic expectation.

Canada referred the matter to their supreme court for a legal opinion and global experts argued both for and against Quebec’s right to secede. One side argued the supremacy of the Canadian Constitution and Canada’s sovereign integrity, the other Quebec’s inalienable right to self-determination under international law which the constitution could not negate. In the end the point became moot since Quebec narrowly voted against independence, but even then, this was not the end of the matter.

Canada subsequently passed the Clarity Act requiring a constitutional amendment for Quebec’s possible future secession, whilst Quebec in response passed Bill 99 emphasising Quebec’s right to self-determination in public international law stating that no other parliament (other than Quebec’s) may impose any constraint on the democratic will of the Quebec people to determine their own future.

Quebec’s argument was strengthened in 2010 when the International Court of Justice advised that Kosovo’s Unilateral Declaration of Independence (UDI) from Serbia was not a violation of international law.

What these precedents establish is that neither side in a contested demand for independence can simply declare their position and force it down on the other. South African constitutionalists cannot simply dismiss Cape Independence by quoting the Constitution. Even less so when they fail to acknowledge South Africa’s obligations to grant self-determination under the various international covenants which South Africa has ratified during the democratic era.

In the event that the people of the Western Cape express their democratic will for independence, intense political negotiations, where both sides are forced to act in good faith, will be the outcome.

Closing argument

So, in closing I would assert that a referendum on independence has already been promised, that any such referendum would be provincial and not national, and that in the event of a democratic mandate for independence the Constitution will not present an insurmountable obstacle. The outcome will be determined by realpolitik and political negotiation.

As for Professor Labuschagne imploring gatvol South Africans to aim lower, I am going to suggest that in contrast he rediscovers the pioneering spirit of his forefathers and aims somewhat higher. If we defeat ourselves without even trying, then our fate will be sealed.