DISCLAIMER: This article was not produced by the CIAG. It primarily deals with the legal requirements to obtain international recognition and makes several references to minorities. The CIAG supports independence on the basis of the democratic will of Western Cape electorate as a whole, and not on the basis of any particular race or races.
This article has been reproduced here (with the author's permission) because the political opponents of independence have chosen not to debate the benefits of independence for the Western Cape people, but rather to try and convince independence supporters that secession isn't legally possible. The author, who specialises in the field of secession and recognition, affirms here that it is possible and explains the process.
The article was first published on SouthAfricaToday.net Click here for link to original article
The case for remedial secession of the Western Cape
Dr Fatima Saayman, LLB, LLM, LLD is a legal policy advisor to several national governments. Her specialisation is secession and recognition. She writes here under a pseudonym due to the sensitive nature of her work, and the views expressed here are her own.
There has been considerable discussion recently regarding the possibility of the Western Cape seceding from South Africa and becoming fully independent. The immediate reaction by some South African academics is that this is simply impossible both in terms of the South African Constitution[1] and in terms of international law. In truth, however, secession is prohibited by neither of these as long as certain requirements are met. This statement certainly constitutes an inevitable simplification. However, simplifications cannot be avoided when discussing a complex issue such as secession in a few hundred words.
Remedial secession
For a new state to be established, the following criteria for statehood have to be met: a permanent population; a defined territory; a government; and the capacity to enter into relations with other states.[2] In recent times a fifth requirement evolved, namely that the new state must be founded on democratic principles. This implies that the creation of the new state must be based on universal adult suffrage, the democratic will of the people, and the protection of human rights, including minority rights, regardless of race, gender, sexual orientation or religion.
For a state to become a truly independent state in terms of international law, it has to be recognised by other states. In reality, this is a conditio sine qua non for independence. What can be established from case law and state practice is that other states are more likely to recognise a newly formed state if the secession that follows a unilateral declaration of independence is based on what is referred to as “remedial secession”.
Remedial secession is, in essence, a final remedy to enforce the right to self-determination,[3] and to bring to an end systematic and serious human rights violations, as well as lack of effective political participation.[4] In international jurisprudence, the two key cases that touched on the subject of remedial secession were the Quebec case[5] and the Kosovo case.[6]
In the Quebec case, the court held that international law may include a right to remedial secession, specifically in situations where a definable group[7] is denied meaningful access to government in order to pursue their political, economic, social and cultural desires.[8]
With regard to the unilateral declaration of independence by Kosovo, it is interesting to note that most states that recognised Kosovo as an independent state did so on the basis of remedial secession. The right to remedial secession will only come into being if there is a serious lack of internal self-determination, accompanied by systematic, severe and gross human rights violations, as well as the absence of a viable alternative. It should, therefore, be seen as a remedy of last resort.
The people entitled to the right of remedial secession must have a common or shared identity. This is also reflected in Article 235 of the South African Constitution which provides for the right to self-determination of “any community sharing a common cultural and language heritage”. In the Western Cape, the brown and white populations form a majority in the province and as such constitute a distinct people due to their predominantly Western culture, with most of them also sharing Afrikaans as their first language. However, this distinct people forms a small minority when seen as part of the South African population as a whole. The following arguments can be made to prove the existence of a “distinct people” in the Western Cape:
1. Most people in the province share a Western identity. So-called coloured,[9] or brown people, form almost half of the province’s population, many of them being the direct descendants of southern Africa’s true first nations. Others are descended from Europeans and slaves who were brought to the Cape from Madagascar, Angola, East Africa and the Far East (Batavia) by the Dutch East India Company during the 17th and 18th century. Together with white people, brown people in the province form a clear majority with a shared Western culture.[10] There are also black people in the province who share this Western identity.
2. Brown and white people in the province have a shared history and have lived together in the region in relative isolation from 1652 until the early 1800s. From 1652 until 1795 the Western Cape was managed like a colony by the Dutch East India Company. From 1795 until 1803 the territory was part of the Cape Colony under British rule, and from 1803 to 1806 the Colony was governed by the Bataafse Republiek of the Netherlands. In 1806 the Cape Colony was again conquered by Great Britain; thereafter black people gradually settled in the Western Cape and in considerable numbers since 1994.
3. Due to their isolation during almost two centuries on the southern-most tip of Africa, brown and white people of the Western Cape did not only develop a shared language (Afrikaans), but most of the people in the province also share a unique Western culture. The cultural identity of the people in the Western Cape differs vastly from that of the majority of South Africa’s population.
4. Afrikaans is spoken as a first language by the largest number of people in the province. Afrikaans is a Germanic language which has developed in the Cape mainly from 17th century Dutch. Most people in the Western Cape speak English as a second language. In the rest of South Africa, the majority of people speak one of several Bantu languages as their first language.
5. It has become apparent in South Africa’s democratic voting patterns since 1994 that the majority of people in the Western Cape prefer a capitalist economic system as shown by them predominantly voting for the Democratic Alliance (DA), which also governs the province. The ANC is in control of all other provinces in the country. Ever since 1994, a clear majority of people in South Africa vote for the ANC. Together with the ANC, political parties with a predominantly black support base form approximately 80% of South Africa’s parliament. The ANC and its coalition partners, the South African Communist Party and trade union federation Cosatu, actively pursue socialist objectives.
Despite clear differences in political affinity, first language as well as cultural, social, and economic desires, the people of the Western Cape remain subject to the national ruling party’s whims and political control.
Stark evidence of human rights violations
No one can deny that South Africans suffer from systemic and severe human rights violations. Ironically, the South African Bill of Rights lists no less than 27 human rights that the South African government is required to promote, protect and respect. However, one would be hard-pressed to find even a few rights listed in the Bill of Rights that are not violated on a daily basis. This point is discussed below as briefly as possible (an in-depth analysis of human rights violations in South Africa could fill several volumes).
The right to dignity and equality
The most obvious example of violations of these rights is the government’s policy of structural racism against the white minority which constitutes 8% of the country’s population and 17% of the Western Cape’s population. Simultaneously, the brown minority in the country have also become victims of the government’s policy of structural discrimination based on people’s skin colour. Although brown people are approximately 48% of the Western Cape’s population, they are only 9% of South Africa’s total population. In 2016 the Constitutional Court found that the decision by the Department of Correctional Services to not promote seven coloured Western Cape employees amounted to unfair discrimination. In addition to this, the ANC government’s quota system, often based on the country’s national demographics, clearly also impairs the brown minority. This has led to many brown people now saying “we were too black for the white government, now we are too white for the black government”.
South Africa is the only country in the world where a vast majority is protected (through black economic empowerment and affirmative action) against a small brown and white minority. South Africa currently has a plethora of race based laws and other racial qualifying criteria. Even though these laws are intended to benefit certain previously disadvantaged groups in the Western Cape as well, the net effect is that only a small group of elites profit from many of these policies.[11]
The right to life and freedom and security of the person
South Africa has an extremely high prevalence of sexual and violent crimes,[12] and has one of the highest murder rates in the world. The current murder rate, according to official police statistics, is around 56 murders per day. Per capita, farmers (including those in the Western Cape) are disproportionately targeted. Furthermore, what differentiates farm murders from other murders is the level of violence and torture that characterises these murders.[13] This is exacerbated by the fact that the South African government refuses to prioritise and address farm murders. In addition, although almost every aspect of South African life is categorised in terms of race, crime is not reported in terms of race.
A further problem is the lack of police enforcement in the Western Cape, despite repeated calls by the DA for increased police support. Additional support is essential to effectively deal with gang related violence on the Cape Flats, Since policing is a national competence, the Western Cape provincial government’s hands are tied.
The right to property
With the enactment of the Mineral and Petroleum Resources Development Act of 2002, mineral rights in South Africa were effectively nationalised by the South African government, who has become the “custodian” of mineral rights on behalf of the people of South Africa. Corruption and nepotism, however, have resulted in a small elite group of people benefiting from this legislation.
Talks of land reform and land redistribution have been ongoing since 1994. Whilst land redistribution has been taking place for a number of years, it was always based on the principle of willing buyer, willing seller. Land reform efforts remain ineffective, particularly since the department responsible for land redistribution is practically disfunctional; land bought for redistribution is not effectively redistributed and 90% of the farms that have been redistributed have failed and are no longer producing food, which in turn affects the country’s food security.
The ANC has recently announced its intention to expropriate property without compensation. Of particular concern is the fact that the proposed legislation does not only refer to farm land, but merely mentions “property”, which means that any type of private property could potentially be subjected to expropriation without compensation.[14] There can be little doubt that the ANC will obtain the two-thirds majority required to amend section 25 of the Constitution in order to achieve these objectives.
The rights to environment, food security and health
Environmental degradation is taking place in South Africa at an alarming rate. Water shortages are a major concern, also for the population of the Western Cape which faced severe water shortages in 2017 and 2018. Other environmental issues include deplorable waste management, mining,[15] air[16] and water pollution,[17] land degradation and deforestation.[18]
The public health system has to serve the vast majority of the population and is chronically underfunded and understaffed. Horror stories emerge from state hospitals in relation to standards of hygiene, medical care and treatment of patients.[19] Although South Africa has made progress in transforming its health sector and making primary healthcare services available, access to healthcare remains a challenge.[20]
Right to education, language and culture
South Africa’s education system ranks amongst the worst in the world. Although the pass rate seems acceptable, the standard of education has decreased tremendously, with the pass grade having been lowered to 30% for certain subjects.[21] In addition, mother tongue education, particularly in Afrikaans, is actively undermined by the South African government. Afrikaans as an academic language faces extinction as universities have stopped offering tuition in Afrikaans, opting for English instead. This clearly affects both brown and white Afrikaans speaking people in South Africa.
The protection of minorities in South Africa is a serious issue. Although a few safeguards are enshrined in the Constitution, in practice minorities are left without remedy. The majority-rules principle prevails in most instances and minorities (for instance Afrikaners) can often not participate politically because they are overshadowed by the ANC and its support base.
The list of human rights violations that people are subjected to on a daily basis is staggering. All these violations are exacerbated by widespread corruption and incompetence as a result of the ANC’s policy of cadre deployment.[22] In this regard, the difference between the Western Cape and other provinces is once again distinctive: 79% of Western Cape departments received a clean audit for the 2018/9 financial year, whilst the next best province, Gauteng, only had 30% clean audits.[23]
Political participation and internal self-determination
The considerable limitations of internal self-determination are clear. Key policy areas would still remain the responsibility of the national government, including macro-economic policy, immigration and border control, foreign policy, maintenance of law and order (national police) and defence (military). The majority of human rights violations that people in the Western Cape are subjected to would not be resolved through internal self-determination; certainly not those relating to violent crime, illegal immigration, and the expropriation of property. In fact, the exclusive competences of the province are rather limited.[24]
Since 1994, the ANC government has aimed to transform South African society, resulting in nothing less than Africanisation or indigenisation. The fact that brown and white people form a small minority in South Africa as a whole means they have little or no influence on how the country is governed, and they are in no position to stop the ANC’s policy of “transformation”. Consequently, they are socially marginalised, culturally dismantled, and economically disempowered. The prospect of effective political participation by these minority groups is limited, if not non-existent. Even though the people of the Western Cape can participate politically in their own province, their input on national policy is close to zero. Chances are real that the vast majority of the rest of South Africa will continue to vote for the ANC or even worse, for the EFF with its clear Marxist ideals; whereas those in the Western Cape will continue to vote for an entirely different political ideology.
Brown and white people’s already limited political participation is further decreasing due to demographic realities in South Africa. As a direct result of the ANC’s discrimination against minorities, coupled with the high crime rates in South Africa, more than a million brown and white people have left the country since 1994. This, as well as low population growth within these groups is leading to the harsh reality that minorities in South Africa will, in time, all but disappear. In addition, migration from other African countries is poorly controlled which has resulted in an enormous influx of other Africans, also to the Western Cape. It is also common knowledge that the ANC, through gerrymandering, has changed the borders of metropoles and voting districts in order to increase the number of voters likely to vote for them.
It is therefore evident that representatives of the Western Cape’s population can show that there is no prospect of political participation, and that human rights violations in South Africa are rife.
All of the above form the departure position for the people of the Western Cape to pursue independence based on remedial secession. However, the first requirement for pursuing the goal of full independence for the territory is to obtain a clear majority from eligible voters in the province expressing the will to secede and providing an organisation with a mandate to negotiate independence on their behalf. The process of obtaining independence must be peaceful and all internal judicial remedies, including bona fide negotiations with the South African government, will have to be exhausted. Finally, without international recognition by a number of sovereign states, secession cannot succeed. Building a solid case based on remedial secession would provide the best chances of success.
[1] Constitution of the Republic of South Africa, 1996.
[2] Montevideo Convention on the Rights and Duties of States of 1933.
[3] International law recognises the right to self-determination in a number of instruments.
[4] Van den Driest Remedial Secession: A Right to External Self-Determination as a Remedy to Serious Injustices? (2013).
[5] Reference Re Secession of Quebec [1998] 2 SCR 217.
[6] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010.
[7] A definable group, or “people” has subjective and objective criteria. UNESCO provides a usable definition for a “people”.
[8] Laurinavičiūtė and Biekša “The relevance of remedial secession in the post-Soviet ‘frozen conflicts’” (2015) International Comparatic Jurisprudence 66-75.
[9] The ANC government still classifies South Africa’s citizens in terms of race, i.e: Blacks, Coloureds, Whites and people from Asian descent.
[10] Again, this racial distinction is drawn as a result of the current South African government’s classification of races.
[11] See https://businesstech.co.za/news/business/94401/how-many-black-south-africans-benefit-from-bee/.
[12] For a summary of these statistics, see https://citizen.co.za/news/south-africa/crime/2178462/factsheet-south-africas-crime-statistics-for-2018-19/.
[13] Gumbi An Investigation of the Security Risk Factors of Farm Attacks (University of Limpopo 2017). Gumbi states the following: “The attacks are characterized by extreme forms of violence. The study established that attacks on the farms are aimed at funding various organized crime syndicates. The attackers reconnoitre the house and routine activities of their victims. There is poor police visibility and reaction, resulting in the formation of a farm watch system administered by farmers. There are informers who provide the attackers with the blueprint of the farm. Precision of the attacks, cleaning crime scene and weapon handling skills indicate military training. Primary loot taken during the attacks is weapons, money, jewellery and other valuable household items.”
[14] See https://www.biznews.com/undictated/2020/01/30/state-control-property-rights-land-fixtures.
[15] See https://www.niemanlab.org/2020/07/south-africas-oxpeckers-is-powering-up-geo-journalism-for-investigative-environmental-reporting/ and https://mg.co.za/article/2019-05-17-00-big-increase-in-mine-water-pollution/.
[16] See https://theconversation.com/air-pollution-temperature-and-respiratory-disease-a-south-african-study-141080.
[17] See https://www.fse.org.za/index.php/water-issues; https://www.reuters.com/article/safrica-water-pollution/feature-flushed-with-fear-s-africas-sewage-system-collapse-a-time-bomb-idUSL8N28F2A9 and http://www.farmingportal.co.za/index.php/agri-index/76-water-and-irrigation/1676-the-deadly-effects-of-water-pollution-south-africa.
[18] See https://psmag.com/environment/deforestation-is-happening-in-southern-africa-much-faster-than-previously-thought.
[19] See https://www.bbc.com/news/world-africa-53396057.
[20] See https://www.unicef.org/southafrica/health.
[21] See https://mg.co.za/article/2020-01-10-00-matric-pass-rate-hides-failures/.
[22] See https://www.politicsweb.co.za/opinion/corruption-is-only-about-a-third-of-the-problem.
[23] See https://www.westerncape.gov.za/provincial-treasury/news/audit-results-confirm-western-cape-top-performing-province-south-africa.
[24] Section 104 of the Constitution, see specifically schedule 5.
