Self-Determination in South Africa: A Right in Form, or in Substance?
Foreword
In its landmark Quebec judgement, later affirmed by the UK Supreme Court in its Scotland judgement, the Supreme Court of Canada wrestled with a key question: Did equal participation in Canada’s constitutional democracy automatically mean that Quebecers enjoyed self-determination within the federal Canadian state? In its reasoning, the court established that outcomes and not just participation determined whether self-determination existed internally.
In the case of Quebec, the court found that Quebecers did enjoy internal self-determination based upon the authority they had actually been able to wield within the system. Regardless, it still concluded that should Quebecers want to secede from Canada, the Canadian Constitutional Order could not be indifferent to this request, but that a negotiated settlement must be reached which took into account the interests of all affected parties.
Applying the same reasoning in South Africa would establish that the people of the Western Cape and other minority communities do not currently enjoy internal self-determination. This article examines why and demonstrates that this has powerful political and legal implications for the realisation of autonomy within the South African state.
1. Introduction
The right to self-determination is established in international law. In section 235, it is then reflected in South Africa’s Constitution. This distinction is critically important — South Africa cannot define or negate the right to self-determination. Instead, it can and has decided how to constitutionally accommodate it.
This paper interrogates the difference between the formal recognition of the right, and its practical realisation.
The central question is not whether self-determination exists in South Africa — it clearly does. The question is whether it is being meaningfully realised in practice, particularly for politically distinct communities such as those in the Western Cape.
This article argues that while South Africa appears to satisfy the formal requirements of internal self-determination, it fails to realise the right in substance in key domains. This is most effectively demonstrated by examining the Western Cape’s clearly expressed desire to police itself. Devolved powers and regional autonomy are recognised forms of self-determination.
2. The Essence of Self-Determination
Many commentators reduce self-determination to being able to vote, achieve representation, and to participation on an equal basis in a country’s democratic system. This is incomplete.
At its core, self-determination requires that:
A people — reflected in section 235 through the concept of a ‘community’ — must be able to shape the political, economic, social, and cultural conditions of its own collective life.
This is an outcome-based right, grounded in consent:
A people must be governed according to its democratic will, not merely participate in a system that determines outcomes for it
Participation without influence is not self-determination.
Representation without agency is not self-determination.
3. Section 235: Recognition Without Realisation
Section 235 provides:
“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”
The Constitutional Court, in the Certification Judgment, confirmed that:
- Section 235 preserves the possibility of community self-determination
- It does not define or exhaust the right
- It does not make Parliament the final arbiter
The structure of section 235 indicates that assertions of the right will need to be addressed through engagement between the community asserting self-determination and the national government. In practice, this can only be addressed through a process of good-faith negotiation—consistent with international law principles reflected in the Supreme Court of Canada’s ‘Reference re Secession of Quebec’ and the African Charter on Human and Peoples' Rights—with the national government bearing the responsibility, and the capacity, to give effect to any outcome through national legislation.
Section 235 is therefore a mechanism for expression, not a limitation.
4. International Law & self-determination: Substance Over Form
4.1 Internal vs external self-determination
The right to self-determination can be exercised in many ways. These are context specific, reflect the democratic will of the people concerned, and can be territorial and non-territorial in nature. Regional and cultural autonomy, devolved powers, federal systems of government, and secession are all widely accepted expressions of self-determination.
In contemporary international law, the territorial integrity of states is no longer absolute. It remains an essential component of maintaining a stable and peaceful international order, but it has become contingent upon states respecting the fundamental human rights of their constituent peoples, especially minorities who are by definition at risk of marginalisation. For that reason, self-determination is not subordinated to territorial integrity.
International law exhibits a strong preference for internal self-determination, i.e. self-determination within the confines of an existing state. External self-determination (secession) is considered in most cases to be a last resort—reserved for cases where internal self-determination has been denied and is therefore not possible.
4.2 The Quebec Reference: evidenced through outcome
In its Quebec judgement, the Supreme Court of Canada considered what the realisation of internal self-determination would look like in Canada’s constitutional democracy. It held that internal self-determination requires that a people can:
“pursue its political, economic, social and cultural development within the state.”
To establish whether this was indeed the case for Quebecers, the Court considered, in practice, what effect Quebecers had actually had within the democratic system and the extent to which they had been able to shape the institutions of state and pursue their development within Canada.
It emphasised that Quebecers “occupy prominent positions within the government of Canada” and cannot plausibly be said to be denied access to government. This was evidenced by Quebecers holding the highest offices of state—including Prime Minister, Chief Justice, and head of the armed forces—demonstrating not merely participation, but meaningful access across the executive, judicial, and coercive arms of the state through which the state is directed.
Since Quebecers had held all of these positions they were consistently able to shape their own development. The court therefore concluded that Quebecers were exercising internal self-determination.
Notably, the Court still held that, despite this, a clear democratic mandate for secession would still oblige the state to engage in good-faith negotiations to give effect to that mandate, whilst ensuring that the interests of all affected parties are taken into consideration.
4.3 The Scotland Reference: Process, Not Prohibition
In its Scotland judgment, the UK Supreme Court Scotland Reference did not deny Scotland’s right to self-determination. It held, however, that its exercise would need to occur through the United Kingdom’s legal and parliamentary processes, pointing out that these processes had already resulted in Scotland being able to hold a referendum on Scottish independence.
The UK’s legal framework therefore demonstrated that the question of self-determination is capable of being realised within the existing system.
This reinforces the Quebec principle:
Self-determination claims must be addressed politically, not dismissed, and that self-determination must be realisable in practice.
4.4 The African Charter: From Participation to Control
South Africa has signed and ratified the African Charter on Human and Peoples’ Rights. Articles 19 and 20 provide that:
- no people may be dominated by another
- peoples must pursue development according to policies they have freely chosen
Read together, these provisions move beyond participation. They require that a people can realise its development according to its own policy choices, free from domination.
In practical terms, this requires control over the key conditions of a people’s development.
4.5 Kosovo and the Limits of Refusal
The International Court of Justice’s (ICJ) advisory opinion on Kosovo is often cited alongside the Supreme Court of Canada’s (SCC) Quebec judgement as seminal texts when considering the contemporary interpretation of the right to self-determination. The SCC’s judgement provides guidance on how to give effect to self-determination within a willing state; the ICJ’s Kosovo opinion considers the position where the state is hostile and unwilling.
The ICJ Kosovo advisory opinion confirms:
- there is no general prohibition on declarations of independence
- the principle of territorial integrity operates between states, not peoples
Taken together, this establishes a clear limit: a state cannot treat territorial integrity, or its own constitutional arrangements, as an absolute basis to refuse engagement with a claim to self-determination.
Where a community seeks to exercise internal self-determination in respect of a core condition of its development—such as policing—and that claim is refused, the issue is not resolved by that refusal. The legal position confirmed by the ICJ is that unilateral action by a people is not, in itself, prohibited by international law. Sustained denial therefore does not extinguish the claim—it removes it from the exclusive control of the state.
4.6 Synthesis
Taken together:
- Quebec establishes the baseline: self-determination requires the ability to pursue development
- The African Charter adds the standard: development must follow freely chosen policies
- Kosovo removes any absolute defence of territorial integrity
- Section 235 provides the domestic framework for expression and resolution
The conclusion is clear:
Self-determination requires effective control over the key conditions of a people’s development and not just equal participation in a democratic system.
5. Structural Reality in South Africa
5.1 Centralised Power and Majority Control
South Africa is formally decentralised, but functionally unitary:
- core powers are centrally controlled
- provinces lack meaningful autonomy
- policing is controlled at national level
At the same time:
- a national majority, drawn from a consistent ideological voting bloc, has determined policy since 1994
The state’s own characterisation reinforces this structure. Government habitually describes South Africa as a unitary state and emphasises that:
- the Constitution is supreme and defines the limits of all governmental power
Within this framework:
- the extent to which minority communities and regions are able to pursue their economic and social development is determined by the national majority and not them, regardless of their right to self-determination
As minorities:
- those communities are unable to alter the Constitution without the consent of the national majority
As a result:
- minority communities and regions cannot meaningfully influence the conditions under which they are governed. Notably, this reflects the design and operation of the system, rather than an incidental outcome.
Where communities cannot influence outcomes, and where those communities seek to be governed in a manner materially different from how they are being governed, self-determination cannot be said to exist.
5.2 Counter-arguments and policy considerations
National government and some commentators argue that centralised control of core functions such as policing is necessary for national cohesion, equitable resource allocation, and combating crime that crosses provincial boundaries. These are legitimate policy considerations.
However, the tests established in the Quebec Reference and the African Charter do not turn on whether centralisation is administratively convenient. They ask whether a people is able, in practice, to pursue its political, economic, social and cultural development according to its own democratic will.
Where a province has demonstrated governance capacity and a consistent electoral mandate for a different approach — as the Western Cape has — a blanket refusal even to negotiate ceases to be a mere policy preference and becomes a denial of internal self-determination.
6. The Western Cape: A Test Case
6.1 Persistent Democratic Divergence
The Western Cape consistently votes differently from the national majority.
In the context of self-determination, this is highly significant. Provincial policing provides the clearest lens through which to observe this. The people of the Western Cape have repeatedly mandated their democratically elected provincial government to pursue alternative policy arrangements.
6.2 Policing: A Core Governance Failure
Policing underpins:
- safety
- economic activity
- social stability
It is decisive in determining whether the constitutional right to be free from all forms of violence is realised.
In the Western Cape:
- crime remains persistently high
- the right to freedom from violence is not realised
- SAPS dysfunction is widely documented
- courts have recognised systemic failure
6.3 Repeated Requests, Consistent Refusal
The Western Cape has:
- requested devolved policing
- proposed constitutional solutions
- implemented supplementary measures
The national government’s position has been explicit:
Devolved policing is non-negotiable
7. The Constitutional Problem
Even where the people of the Western Cape:
- elect a government
- mandate it to pursue their chosen policy; and
- that government demonstrates capacity
they are prevented from controlling a core condition of their development.
Applying the Quebec standard:
Can the community pursue its development?
Applying the African Charter standard:
Can it do so according to policies it has freely chosen?
In the case of policing, the answer is categorically no.
8. Consent and Legitimacy
Self-determination rests on consent.
Where a clear democratic mandate has been established, where that mandate is consistently blocked from implementation, and where the community cannot secure control over the core conditions under which it is governed (including policing), the system may comply with electoral and constitutional procedures, whilst still not providing a means for that community to pursue its economic and social development in accordance with its democratic will.
Democracy and constitutional compliance do not on their own result in self-determination.
Where constitutionalism and self-determination collide, the onus is on the constitution to accommodate self-determination, not on the people asserting that right to abandon it to accommodate the constitution.
9. The Duty of Engagement
Modern doctrine converges on a single principle:
Self-determination claims must be met with good-faith engagement
A blanket refusal to engage is inconsistent with this principle.
10. The Role of a Referendum
If the mandate is disputed:
- It should be tested by holding a referendum, as provided for in the Constitution
What is not defensible is:
- refusing to test it
- refusing to negotiate
- declaring the matter closed
11. Conclusion
Democracy does not equate to self-determination.
The right to self-determination, recognised in international law and reflected in section 235 of the Constitution, requires that communities are able to pursue their economic and social development in accordance with their democratic will.
The central question posed at the outset was whether that right exists in South Africa in substance or only in form.
The Western Cape’s pursuit of devolved policing provides a real-world example through which to answer it.
The people of the Western Cape have repeatedly mandated their democratically elected government to pursue devolved policing. The failure of policing in the province under the existing arrangements has been established beyond reasonable doubt. As a result of this failure, the people of the Western Cape are being denied their fundamental constitutional rights. Policing is a fundamental element of their social and economic development.
Acting on this mandate, the Western Cape Government has repeatedly requested control of policing in the province. In response, the national government has refused even to negotiate the devolution of powers, stating its determination to retain control of policing in the Western Cape regardless of the will of its people.
As a direct result, the people of the Western Cape are unable to give effect to their democratic will in respect of a core condition of their development.
In this case, the people of the Western Cape have been prevented from exercising their right to self-determination, even though they have been able to fully participate in South Africa’s democratic system.
Whilst policing is perhaps the clearest example of the denial of self-determination, it is most certainly not the only one. The same constraints arise across multiple domains, including the economy, transport, language rights, and the use of race-based policy. In each of these cases, communities are being governed contrary to the policies they have freely chosen, and are unable to give effect to their democratic will.
12. A Constitutional Pathway to Devolved Policing
Section 235 provides a powerful constitutional pathway through which devolved policing in the Western Cape can be asserted as an undeniable right. Until now, the Western Cape Government has relied on section 99, which is permissive but provides the national government with complete discretion over the matter. It has used that discretion to perpetually deny all requests for devolved policing.
In response to the Western Cape Peoples Bill, the Western Cape Provincial Parliament has already provided legal advice establishing that, where the people of the Western Cape wish to formally assert a desire for self-determination, they should do so by passing a motion.
In its certification of section 235, the Constitutional Court has already clarified that claims to self-determination should be addressed through a process of negotiation, and that the government is then responsible for giving effect to those outcomes by passing national legislation.
This is reinforced by international law, which has established that self-determination is a non-derogable right that all states are obliged to uphold, and that good-faith negotiation should underpin this process.
If the Western Cape Government sincerely wishes to achieve devolved policing, it should pass a motion to that effect in the provincial parliament and use section 235 to force good-faith negotiations with the national government, which will then be obliged to give legal effect to the outcome.
