The Legal Path to Cape Independence

BLOG POST: Is it a pipe dream or can Cape Independence really happen? The answer is that it is already happening. Here's why.


For Cape Independence to become a reality, 3 things must happen:

  1. The Western Cape people must have the authority to make decisions for themselves.
  2. The Western Cape people must clearly demonstrate that a democratic majority want independence.
  3. The Western Cape must exhaust all reasonable and viable alternatives to independence that may be available to them within the South African state.

This roadmap to independence has been established by the international community. It is not recorded in any one document. It has been established by a combination of precedent and the development of the right to self-determination under international law.

(1)  Authority to make own decisions
The Western Cape People

Groups of people have an ‘undeniable and inalienable’ right to make decisions for themselves. This is the ‘Right to self-determination’. It is guaranteed by international law and South Africa has signed multiple treaties in which it has explicitly guaranteed to uphold this right.

The South African constitution does not directly address the Western Cape people’s right to self-determination. Instead, section 235 recognises the right of self-determination for the ‘South African people as a whole’ whilst ‘not precluding’ recognising the rights of certain other groups. Importantly, it does not and cannot deny the right of self-determination to anyone.

Opponents of independence, including the ANC, seek to negate any claim to self-determination by the Western Cape by denying the existence of a ‘Western Cape People’. This claim is however very difficult to legally substantiate.

The Western Cape has its own constitution which specifically identifies the Western Cape people as a group who are distinct from the South African people as a whole and this is in any event self-evident because the province has its own provincial government, parliament, and voters’ role.

In its current form, the South African Constitution significantly limits the rights of the Western Cape people to make decisions for themselves, instead empowering the national government to make decisions on their behalf based upon the democratic will of the South African people as a whole.

Whilst the Western Cape people accept and consent to this arrangement (and they currently do) this is not legally problematic.

If however the Western Cape people decide that they wish to withdraw this consent and instead wish to assert their right to make decisions for themselves (self-determination), then the legal situation will fundamentally change.

Were South Africa to then still insist on forcing decisions made by the South African people as a whole onto the Western Cape people, then the Western Cape people would then have been denied their right to self-determination which would be unlawful for South Africa to do.

The first step necessary to achieve Cape Independence is therefore for the people of the Western Cape people to categorically state that they want to constitute a ‘people’ as defined by international law and that they want to assert their right to self-determination. This is important because one of the key tests in international law of whether a people exist or not is whether they themselves want to be considered a people (UNESCO/Kirby).

This can be done by passing a ‘Western Cape Peoples Bill’ in the Western Cape Provincial Parliament.

‘The Western Cape Peoples Bill’ would simply record that the Western Cape people exist and that they wish to claim the right to self-determination.

The ‘Western Cape Peoples Bill’ will be tabled in the Western Cape provincial parliament in 2023.

(2)   Demonstrating the Democratic Will
CIAG informs SA President of Referendum Request

It is universally accepted that a democratic referendum is the appropriate means by which to establish whether a group of people wish to secede and form their own independent state. Only voters in the region seeking independence are allowed to vote and a straight majority (50%+1) is required.

Both the Western Cape and South African Constitutions explicitly make provision for the Western Cape Premier to call a provincial referendum.

There is however some contention about whether the law which gives effect to this right can be used in its current form or whether it first needs to be amended.

South Africa has a ‘Referendums Act’ but it was last amended in 1992 before a Western Cape Premier existed and therefore does not make any reference to the Western Cape Premier. South African law makes provision for the contemporary interpretation of pre-94 legislation and the CIAG believes that the Premier is currently empowered to call a referendum.

The Western Cape Government holds a different view and believes that the legislation first needs to be updated to make specific reference to the Premier. The DA, as the party of provincial government in the Western Cape, has published its intention to amend the Referendums Act and says that its Amendment Bill will be tabled in the national assembly in 2023.

The CIAG and other independence organisations have formally requested a referendum on Cape Independence and the DA have agreed in principle that Western Cape voters have a right to decide for themselves but have not yet publicly agreed to hold one.

If a referendum has not been called before the 2024 elections, then the CIAG and others organisations will make it an election issue.

(3)  Exhausting any viable Alternatives
Western Cape Exhausting Alternative Remedies

Ideally, as was the case in the 2014 Scotland referendum, both sides would agree to hold and abide by the outcome of a democratic referendum. It is still possible that this may happen in South Africa, but most analysts consider this unlikely.

Without such an agreement, Cape Independence would be politically contested.

Secession (independence) is generally considered by the international community to be an act of last resort. It involves significant upheaval, affects the lives of many people, and can often be contentious.

The International Court of Justice (ICJ) has confirmed that there is no law which prevents a people unilaterally declaring themselves independent, but until all other options have been exhausted, it is generally discouraged by the international community.

The opinions of the international community are important because new countries come into existence through the process of ‘international recognition’. This is where one or more countries formally recognise the existence and authority of the new country and are willing to interact with it.

The international community expects both parties (in the case of Cape Independence, the Western Cape and South Africa) to act reasonably and in good faith. This means genuinely having tried to find other less disruptive ways to grant the people in question self-determination.

Without many people realising it, this process is already well underway. For the last few years, the Western Cape government has been trying to obtain additional powers. It has mainly done so in areas where the national government is failing to provide adequate services and where the provincial government wants to step in. It is seeking control of policing, electricity, railways, and ports and it has the support of the majority of voters in the Western Cape.

For the most part, the national government is refusing to grant these powers, using the Constitution to claim authority over them. Whilst they are Constitutionally correct, they are also denying reasonable compromises and forcing the Western Cape to pursue more drastic alternatives.

The pursuit of these ‘devolved’ powers has largely been ad hoc. The next step would be a more formal application for substantive self-determination.

A ‘Western Cape Federal Autonomy Bill’ is currently being prepared. It requests that the South African Constitution be formally amended to grant the Western Cape the additional powers that it wants and can reasonably demand. This bill would be tabled in the National Assembly and would require a super-majority of the South African parliament and the support of five other provinces in the National Council of Provinces.

If having already denied the Western Cape meaningful devolution, the South African Parliament then also blocks the federalism bill, it will have established that South Africa is unwilling to grant the Western Cape people self-determination within the confines of the South African state.

A last-ditch application to the ConCourt would then follow, where South Africa’s highest court would be asked to compel parliament to pass the ‘Western Cape Federal Autonomy Bill’.

If this application fails, then the Western Cape will have acted reasonably and exhausted all the possible alternative options to Cape Independence. In contrast, South Africa will have stubbornly resisted all possible compromises.

In such a scenario, significant sections of the international community would accept that secession was now the Western Cape’s only realistic means by which to exercise self-determination and be willing to formally recognise a unilateral declaration of independence by the Western Cape.

All that would then remain would be for the people of the Western Cape to pressure the provincial government into holding a referendum and, in then event of a ‘leave’ vote, declaring independence. The exhaustion of all other options would make this immeasurably easier to achieve.

The ‘Western Cape Federal Autonomy Bill’ will be tabled in the National Assembly as soon the ‘Western Cape Peoples Bill’ has been passed.

CIAG and the international community (London)

Conclusion: Is Cape Independence possible? Decide for yourself.

About CIAG: We are a non-profit organisation committed to democratically, lawfully and peacefully obtaining independence for the collective peoples of the Western Cape. Support our work: please spread the word, register for our newsletter and donate.