Self-determination is not a prerogative of states to grant or deny
The announcement last week by DA federal chairperson Helen Zille that a Western Cape Devolution Working Group (WCDWG) had been founded, which politically represented 60% of the Western Cape Provincial Legislature, and which included several civil society organisations including Afriforum, was always going to cause a commotion. It did not disappoint.
Intellectual debate is increasingly a rarity in our political discourse, where sentiment tends to trump substance. South Africa is currently facing enormous challenges, including unprecedented levels of unemployment, rampant crime, endemic government corruption, collapsing institutions and infrastructure, and the inability to keep the lights on.
Almost all of these problems can be directly attributed to appalling policy choices made by the South African National Government.
In the Western Cape, this is an especially bitter pill to swallow. Since 1994, the majority of Western Cape voters have never been governed by the party they voted for, and they have no reasonable prospect of that changing any time soon. They are literally the victims of other people’s decisions, and at some point they were always going to call time on the status quo.
True to form, the hysteria surrounding the WCDWG announcement emanated predominantly from the political left. The DA was accused of secretly driving a secessionist agenda, whilst many of its partners were subjected to political slut-shaming. ‘Right wing’ was declared a crime in absentia, and in the Daily Maverick, Pierre de Vos went with ‘tainted by racism’, ‘cranks’, and ‘crackpots’.
Section 235 simply acknowledges an existing right
Whilst De Vos devoted most of his commentary to the devolution of policing powers, it was his comments on self-determination that were perhaps the most significant. He may be a Professor of Constitutional Law, but either he doesn’t understand self-determination in its correct and wider context, or he is deliberately misrepresenting it.
As he has done previously, he presents self-determination as if it originates in the South African Constitution, and where section 235, the text which he likes to ridicule, is its sole source of authority. Nothing could be farther from the truth.
Self-determination is an accepted (jus cogens) right in international law. It is contained in the UN Charter, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the African Charter on Human and People’s Rights (ACHPR). South Africa has ratified all of these agreements. In addition, the South African Constitution repeatedly affirms the authority of International Law – most notably in sections 39(1)(b), 232, and 233.
Section 235 therefore simply acknowledges a right which already exists.
Denial of self-determination is a Rubicon moment for any state.
De Vos however goes even further. In his article he claims that if Parliament denies self-determination to a group that claims it, that group would have no legal recourse. In doing so, he infers that South Africa has the legitimate choice to grant or deny self-determination based upon the will of Parliament. In both cases, this simply isn’t true.
As was confirmed in a 2014 report to the General Assembly of the UN (A/69/272), self-determination is not within the exclusive domestic jurisdiction of the state, it is the legitimate concern of the international community. In his 2017 paper titled ‘The law on self-determination today’, the UN report’s author Dr Alfred de Zayas expressly states that self-determination is not a prerogative of states to grant or deny.
As a result, in contrast to De Vos’s inference of triviality, the consequences of the South African parliament ever denying the right to self-determination would be extraordinarily far-reaching.
The denial of self-determination is a Rubicon moment for any state.
Aside from placing it in breach of international law, it creates the justification for the aggrieved party to act unilaterally. The entire concept of ‘Remedial secession’ is premised upon just such a denial. In the context of the WCDWG the implications, whilst less extreme, are just as radical.
Once you start to consider this, the proposal of the WCDWG starts to make much more sense.
South Africa state is increasingly powerless
De Vos paints a scenario where the South African government is all powerful and the devolution working group will be contesting for table scraps. This reality exists on paper only. The authority of the South African government is rapidly being hollowed out and once people realise just how powerless it has become, its authority may well evaporate altogether.
For those who cannot grasp this, let me ask, what were the consequences when in March this year Premier Alan Winde to all intents and purposes committed treason? Whilst South Africa was cosying up to the Russians, Winde had Russians banned from all official functions of the Western Cape Government. Then, in clear defiance of the Constitution, he entered into foreign relations with Ukrainian diplomats as if the Western Cape was a sovereign state.
Did the police arrest Winde? Did the army roll into the Western Cape and re-impose the sovereign authority of the national government? Was he forced to resign in disgrace? No! There was a minor murmur and a bit of name-calling, but the decision of the Western Cape Government stood, and the national government did nothing. It was utterly powerless.
The Western Cape and the City of Cape Town have also begun to act unilaterally on electricity and policing. This will almost certainly be the thin end of the wedge, as the national government becomes increasingly unable to adequately perform its duties.
Western Cape constitution establishes a Western Cape ‘People’
Now consider the ideological and policy positions of the organisations who collectively form the WCDWG. Afriforum believes in ‘doing it for yourself (selfdoen)’. The DA and the ACDP support federalism. The VF Plus and the Cape Independence groups propose secession. De Facto autonomy for some, De Jure autonomy for others.
In this context the referendum legislation becomes even more important. It provides a means by which the Western Cape Government can ensure it is acting in accordance with the democratic will of the Western Cape people on specific issues, especially where it is putting itself in conflict with the national government.
The Cape Independence Advocacy Group (CIAG) has for some time been pushing for Western Cape self-determination to be formalized, using provincial legislation to declare the Western Cape a people who, whilst remaining a part of the South African people as a whole, are distinct from them. This will simply codify what the Western Cape constitution has already established. Its preamble starts with the words, “In humble submission to Almighty God, We, the people of the Western Cape”, before stating the three official languages of those people.
The significance of this is that under international law, self-determination applies by default to a ‘People’. Once this has been codified, the South African Government is then obliged to grant the Western Cape people self-determination. Self-determination can then legitimately be exercised in one of four ways, autonomy, federalism, secession, or unification.
Is the WCDWG South Africa’s next CODESA?
As De Vos correctly points out, section 235 then states that, to establish how the relevant group will exercise self-determination, national legislation must be brought in. The kicker is that Parliament really can’t afford to say no when such a bill is tabled, because in doing so it is not only breaching international law, but it is inviting the party denied self-determination to then ignore it and to act unilaterally.
One political party has already agreed to bring on the provincial legislation, others are considering their options.
The rest of South Africa has much to gain and nothing to fear from Western Cape self-determination. Successes in the Western Cape will almost certainly trigger similar actions elsewhere. Self-determination for the Western Cape will lead to the federalisation of South Africa in one form or another. If the national government wants to hold South Africa together, it should work with the federalists rather than against them.
In 2024, voters in Gauteng may very well also reject ANC rule. The ANC will however almost certainly remain the main party of national government in one form or another, and, in such circumstances, Gauteng might be all too happy to ‘copy and paste’ Western Cape self-determination. Should this happen, separation from South Africa’s economic heartlands really would be the coup de grâce for the ANC.
One twitter commentator described the WCDWG as South Africa’s next CODESA. He might just be right.