Why Constitution not Key to Cape Independence

RIGHT TO REPLY: CIAG responds to a letter in the press suggesting independence is not possible

Letter to the Editor (Mr Terence Grant) - A Right to Reply

Click here to read Mr Grant's letter

I'd like to begin by reaffirming that the Cape Independence Advocacy Group actively encourages informed debate on Cape Independence. Given that the media have largely shunned the independence conversation, there is far too much ignorance on both sides, and it would be helpful if more people could publicly make considered arguments for and against its merits  – especially from the perspective of the Cape peoples.

Unfortunately, the letter written by Mr Grant to which I am replying is not only riddled with factual inaccuracies, it also hides an agenda which the writer has failed to declare.

According to a Facebook message sent by Mr Grant to the Cape Independence Advocacy Group (CIAG) he is actually a politician representing a party called the ‘Liberal Democratic party’. His message, a copy of which has been provided to News24, started with the words “Why you should vote for me and the Liberal Democratic Party …”. Elsewhere he repeatedly refers to ‘us whites’, which seems anything but liberal, though ultimately I guess that is his business. The Cape Independence Advocacy Group is strongly non-racial and both its team and its supporters are ethnically diverse. We certainly don’t perceive ourselves as ‘us whites’ – white people are the smallest ethnic group in the Western Cape, comprising less than 16% of the population. At the CIAG we identify with the Western Cape electorate as a whole, in all its diversity.

The right to self-determination

Moving onto the merits of his argument, Mr Grant has completely misunderstood international law and precedent.

To begin with, it is important to note that the right to self-determination is not derived from the South African constitution, but rather from United Nation (UN) statutes, to which South Africa is a signatory. It is found in the second paragraph of the UN’s founding document, as well in the very first paragraph of the UN convention on civil and political rights.

These rights are not endowed upon nation states but rather upon peoples. The UN then, to provide exactly the clarification that I am now setting out, goes on to describe precisely what a peoples is. This is commonly referred to as the ‘Kirby Description’.

Returning then to the South African constitution; had Mr Grant considered the wording of section 235 a little more carefully when he quoted it, he might have seen that all the clues were hiding there in plain sight. Section 235 refers to the right of the South African people, not the state. It then describes how those rights are ‘manifested in’ rather than ‘derived from’ the constitution – in other words, they already existed before the South African constitution was written.

Just as the South African people always had those rights, with or without the constitution, so do the people of the Western Cape. This was the exact purpose for which the Kirby description was written – to define the rights of a people regardless of the state to which they currently belong, and to help determine to whom those rights should and should not apply. Without digressing further into the Kirby description, it is sufficient to say that, should they so wish to be defined, the Western Cape population qualifies as a ‘peoples’ distinct from the peoples of South Africa.

The process of secession under international law

Having established that the Western Cape peoples have the right to self-determination regardless of whether it is or is not expressly stated in the South African constitution, the next question is how would those rights be claimed and enacted? Clearly this would be subject to a clear democratic mandate from the Cape peoples indicating that they wanted to exercise this right.

Here Mr Grant misunderstands the role played by the UN when a territory seeks to secede from its parent state. He wrongly suggests that the UN does not have the authority to intervene, but South Africa is a member state of the UN and has voluntarily submitted itself to UN authority. In any event the point is somewhat moot, since contested secessions are not resolved through UN intervention but rather through the de-facto process of international recognition.

In 2010, the International Court of Justice advised that there is no prohibition in international law against a people declaring themselves independent. Most secessions are to some extent contested and it is the de-facto actions of the international community which ultimately decide whether a new sovereign nation state is born or not, and not the UN. Were the Western Cape to declare itself an independent sovereign state, and were South Africa to contest that declaration, other nations would then be forced to decide whether they recognise the authority of South Africa or of the Western Cape. The decision they then make is what decides whether the new state has come into existence or not. This process is called ‘recognition’.

There are any number of suitable ‘recognisers’ to whom the Western Cape could appeal, with the most obvious being its two largest trading partners, both of whom have strong historical ties to the Cape – the UK and the Netherlands. The UK in particular has a strong recent history of recognising and defending the will of the majority. Their willingness to grant Scotland a referendum on independence is the most recent example of this, though there are many others.

How might independence come about in the Cape?

Understanding the international political process of a contested secession is essential because it establishes the context in which the domestic political process will play out.

The Western Cape premier is empowered by the South African constitution to call for a referendum on independence. Of course, this leaves the door wide open for any number of political shenanigans. It is the veiled, or perhaps open, threat of unilateral action by the Western Cape, supported by the international community, that will keep the South African government honest. Does anyone think that the National Party called the 1992 referendum in a political vacuum?

The most likely process by which the Western Cape would obtain independence would commence with the Western Cape establishing that the democratic will to secede exists. Thereafter, everything required to make a successful unilateral declaration of independence (UDI), including recognition, would need to be put in place. At this point the Western Cape would call for a referendum. Just as in the run up to 1992, the South African government may technically be able to say no, but the inevitability of what would then follow is what dictates that they almost certainly would not.

In an important final clarification, the Cape Independence Advocacy Group, together with all the other groups seeking Cape independence, are fully committed to a peaceful process. Diplomacy and the law are the only weapons we will ever be lifting.

In closing – Cape independence most certainly is possible. More than that, it is rapidly gaining popular and political support and it is starting to become ever more likely. As Richard Poplak, senior writer at the Daily Maverick tweeted earlier this month, ‘For those of you laughing at the idea of Western Cape secession: it’s happening right before your eyes’.