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My final thoughts on #capeindependence:
After much enthusiastic and energetic engagement with pro independence folk of which I have expressed the legal implications of how secession can and can't take place, I will summarize all I have said.
After much enthusiastic and energetic engagement with pro independence folk of which I have expressed the legal implications of how secession can and can't take place, I will summarize all I have said.
In my Daily Maverick piece, I explicitly explained how secession, in theory, can materialise through a constitutional amendment. In practical terms, it most likely will fail due to ANC hegemony. https://www.dailymaverick.co.za/opinionista/2020-07-30-western-cape-secession-is-pie-in-the-sky-no-matter-how-you-slice-it/
Why a constitutional amendment?
Because SA is a sovereign state at peace in terms of international standard. Therefore, the international community would have no attraction to interfere in said sovereignty, should a group of citizens call for independence of a specific region.
Because SA is a sovereign state at peace in terms of international standard. Therefore, the international community would have no attraction to interfere in said sovereignty, should a group of citizens call for independence of a specific region.
To gain the support of the international community for independence, WC secessionists would need to explain how it is just. We then have to look at precedence of previous secessions around the world and what circumstances warranted independence and international recognition:
1: Parent state consent/collapse
3: violent conflict/civil war, often by ethnic lines
4: possible crimes against humanity committed/sanctioned by/not stopped by government, such as genocide/ethnic cleansing.
5: distinct historical socio-cultural groups in a clearly defined area.
3: violent conflict/civil war, often by ethnic lines
4: possible crimes against humanity committed/sanctioned by/not stopped by government, such as genocide/ethnic cleansing.
5: distinct historical socio-cultural groups in a clearly defined area.
Numbers 3 and 4 especially would make it difficult for reunification of the country and sometimes independence is really in the best interest of the people to avoid more violence and deaths.
Countries such as South Sudan, Bangladesh and former Yugoslavia states achieved independence because they experienced, one or more of the above circumstances. Global political climate during the fall of the Soviet Union also played a factor in garnering international support.
Bearing this all in mind, the province of the Western Cape doesn't have just claim to any of these. We might have a corrupt, incompetent, morally bankrupt national government, but it doesn't right now meet any of the circumstances listed above in terms of INTERNATIONAL STANDARD.
Therefore, what other reason actually exists to convince the international community that independence is just?
1: Referendum:
While a referendum is definitely a democratic tool of the people, in terms of SA law, the result is not legally binding. Therefore, a referendum is not an automatic pathway to independence.
While a referendum is definitely a democratic tool of the people, in terms of SA law, the result is not legally binding. Therefore, a referendum is not an automatic pathway to independence.
My further arguments concern what pro independence groups have used as the foundation for their claim to secession:
2: self determination
Self determination under s235 of the Constitution is not a right to form an autonomous state. It is a right not to assimilate...
2: self determination
Self determination under s235 of the Constitution is not a right to form an autonomous state. It is a right not to assimilate...
By the very existence of s235, any international definition or interpretation of self determination does not override s235. International conventions/laws are only binding on the countries as MEMBERS of the body from which those conventions/laws come from...
Should a country violate that convention/law, it really only has implications for that country's membership of the body from which that convention/law comes from. Individual citizens of member countries do not have direct accessibility to those laws/conventions...
Case in point, the failure of the SA government to detain Sudanese President Omar Al Bashir, as requested by the ICC. And what happened? Al Bashir hopped on a plane and got away, and South Africa received condemnation from the ICC. No invasion of SA, no SA autonomy compromised.
3: Democratic agency
Although the people of the Western Cape didn't get the national government led by the same party as their provincial govt, they nonetheless, still had agency in that election, and were able to vote for the national ballot and be a part of electing Parliament
Although the people of the Western Cape didn't get the national government led by the same party as their provincial govt, they nonetheless, still had agency in that election, and were able to vote for the national ballot and be a part of electing Parliament
This cancels out any claims that, because voters didn't get the govt they wanted they are just in claiming independence.
This is supported by the mere fact that WC residents participated in a free & fair election - something that still is wholly foreign in many other countries.
This is supported by the mere fact that WC residents participated in a free & fair election - something that still is wholly foreign in many other countries.
4: the analogy of Brexit
Brexit was a referendum on whether the UK (a MEMBER state) should leave the EU (a UNION).
The Western Cape is a PROVINCE of UNITARY REPUBLIC.
The two carry very different legal implications.
Brexit was a referendum on whether the UK (a MEMBER state) should leave the EU (a UNION).
The Western Cape is a PROVINCE of UNITARY REPUBLIC.
The two carry very different legal implications.
Also very important to note that the UK Parliament still had to pass a Brexit bill to certify and finalize their exit from the EU. The referendum result alone was not enough to make the exit binding.
The Western Cape is part and parcel of South Africa. And until such a time if independence materialises, the WC is subjected to the Constitution of the Republic of South Africa, which is the foundational law of the land.
There you have it. Take it or leave it. Like it or chuck it. You of course have the democratic freedom to choose as you wish
