5 Constitutional Models to Think About in the Cape Independence Debate

With the topic of Cape Independence gaining traction in the Western Cape and elsewhere in South Africa, it is worth considering the constitutional models available during this process, should there be sufficient pressure on the South African government to answer the call in some way. If there is no groundswell of advocacy (and even agitation) in favour of substantial decentralisation in South Africa in general, or the Western Cape in particular, none of this matters.

There are five notable constitutional models available: Devolution, federalism, federacy, confederation, and independence. These are listed in the order of the ease with which I think they could conceivably come to fruition in South Africa.

1. Devolution

Devolution is the simplest, easiest, and most constitutional option available. This would entail South Africa’s Parliament enacting ordinary legislation bestowing greater autonomy and government powers upon provinces and/or municipalities. Convincing Parliament to do so would be difficult, but if there is a groundswell of opinion in favour of decentralisation, Parliament will certainly wish to simply devolve power, rather than federalise or confederalise South Africa, and least of all, recognise the independence of a province.

Devolution is possible without making an amendment to the Constitution, but much will depend upon a generous interpretation of certain constitutional provisions by the superior courts. A devolutionary process under a cooperative government and sympathetic courts could see provinces granted nearly as much power as they would have in a federation. The unfortunate proviso to devolution, however, is that the central Parliament may at any time repeal the ordinary legislation that gave rise to the devolution, thereby restoring the unitary nature of the state.

2. Federation

Federation is the next easiest option. This option would entail changes to South Africa’s Constitution and would make (all) the provinces substantially more powerful than they presently are. In a federal relationship, a province would be able to decide its own economic, social, cultural, and internal security policy, but would most likely leave external security, foreign affairs, and monetary policy with the central government.

I disagree with Phil Craig, who writes that independence is more easily attainable than federalisation. His reasoning for this, broadly, according to a recent interview, is that whereas federalisation requires the cooperation of the South African government, independence merely requires international recognition.

Cooperation by the South African government when there is a groundswell of support for decentralisation is far more likely than receiving international recognition if the South African government does not cooperate. In other words, if the Cape becomes independent without the consent of the South African government, it is quite unlikely that another (notable) state would recognise its independence. Whichever way one cuts, the South African government’s cooperation will be necessary, unless a violent secession is regarded as an option.

The South African government is far more likely to cooperate for federalisation than for independence. Secession of the Cape would be hugely embarrassing to the South African state and particularly to the African National Congress. It would save face by agreeing to federalise South Africa.

3. Federacy

Federacy is very similar to federation, however it would entail a change to the Constitution that only bestows on one or some (not all) provinces or territories a substantial degree of governmental power. Thus, the Constitution could be changed to recognise that the Western Cape is special in some way and thus has additional powers that say, Gauteng, will not have. Conceivably, a province in a federated relationship with South Africa will have the same powers as a state in a federal South Africa, but other provinces will not possess those same powers.

Federacy will be a difficult sell due to how it treats the provinces unequally. It is however quite possible now, because all provinces other than the Western Cape are governed by the same party, the African National Congress.

4. Confederation

Confederation is very similar to independence and perhaps just as difficult to attain. The European Union can in many ways be regarded as a confederation, where every state retains its sovereignty but agrees to limit that sovereignty in certain ways through engagement with the Union. A state can leave the confederation at any time, making it unlike federation or federacy where there is an enforceable legal bond between the state and its mother-state.

Confederation would entail substantial changes to the Constitution. In fact, the Constitution would likely have to be repealed and replaced with a treaty between the various states that comprise South Africa today, setting out their voluntary relationship with one another and with the nominal federal government.

5. Independence

Independence is the obvious option which the various entities in the Cape Independence movement are advocating for. This would entail a complete legal and political break with South Africa. Independence is arguably the most difficult of the constitutional models to attain.

Independence by way of secession is extra-constitutional, meaning the Constitution of South Africa plays no part in thinking or talking about independence. The Constitution would have to be amended to remove references to the Western Cape, however this would be a problem for the South African state, not for the seceded Western Cape.

Independence can come with strings attached. The Western Cape might owe South Africa a debt for the privilege of being allowed to secede peacefully. Indeed, it is likely that such conditions would exist if one can bring the African National Congress to the bargaining table on complete independence.

It seems unlikely that the South African government would ever cooperate on the peaceful secession of one of its provinces. It might cooperate at the tail-end of a violent attempt at secession, but not while it knows its opponents do not have the capacity or will to take up arms. It is therefore likely more fruitful to focus on the other constitutional models described above, bearing in mind that total independence becomes a far more likely option if any of them are adopted for an extended period of time.

I have a paper on constitutional devolution in South Africa that will appear in the September 2021 edition of the Cato Journal. Keep an eye out!