Cape Independence and the Law of Secession

My own position on Cape independence is yet to be determined by how that movement develops. If it takes a profoundly illiberal turn, particularly as regards how it treats “non-Capeans”, particularly of the South African variety, it is likely that I will oppose it. If, however, the movement appears committed to a real liberal, free society, I would look upon it with more favour.

I have, however, been slightly annoyed with misconceptions around how the law and secession interplay with one another. Allow me, therefore, to clear up some of the confusion.

1. The South African Constitution does not allow secession…

Many secessionists make repeated reference to section 235 of the Constitution to justify their cause on legal grounds. Section 235, however, assuredly does not allow for secession from the Republic of South Africa. This section provides:

“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”

The fact that South Africa is one indivisible state is also entrenched beyond almost any amendment in section 1. Instead, section 235 concerns internal self-determination, which would need to be authorised by legislation enacted by the South African Parliament. Regrettably, even the Cape Party, as of 28 August 2020, got this wrong, arguing that section 235 guarantees the right to secede.

2. … and that doesn’t matter

However, what the South African Constitution says about secession is mostly irrelevant. Secession is inherently about a territory rejecting the authority of its parent state, and by implication of its parent state’s constitution. An abusive husband making a rule in his house that his battered wife may not leave, cannot after she has left claim that “it was against the rules” and that she must return. The wife’s escape is premised precisely on her rejection of her husband’s authority.

(Note that I am an ardent supporter of the South African Constitution, but that does not change the fact that secession inherently takes place outside of any existing constitutional framework.)

3. International law of secession is complicated

The international law principle of uti possidetis says that colonial borders must be respected, regardless of the fact that they were arbitrarily drawn or forced upon colonised peoples. The reason for this principle is to forestall, particularly in Africa, free-for-all attempts to redraw borders – which no doubt will coincide with violence and strife – to reflect ethnic realities. The International Court of Justice endorsed this principle in the frontier dispute case between Burkina Faso and Mali, arguing that Africa requires stability to develop, and that the endless redrawing of borders would disrupt such development unacceptably.

Of course, uti possidetis is not sacrosanct. The independence of South Sudan was recognised recently, for example. But the reason for this is simple: The instability caused by the bloodshed in Sudan was by far worse than the instability that would result from recognising the sovereignty of the South. The same argument cannot be made in the case of the Cape in South Africa, as there has been no bloodshed between secessionists and unionists. Uti possidetis, as far as the international community is concerned, will thus be observed in the case of Cape independence. A bloody and drawn out civil war could change that, but that’s not necessarily what we should want.

That being said, international law, while important, has rarely been allowed to stand in the way of political causes in any context. The secessionists can decide to disregard uti possidetis quite comfortably, but I believe it is important for them to be aware of its existence.

4. Look to the spirit of law, rather than its text

None of this is to say that secession should be approached from an alegal perspective. A good-natured secessionist movement would still observe the best principles and practices of constitutionalism and natural justice. A lawless movement for sovereign independence will win few friends.

5. Secession is won in politics or in blood, never in law

Forget about appealing to the United Nations or some international judicial body to ask for independence. Independence is won politically, meaning through compromise, concessions, leverage, scheming, and public opinion, or it is won militarily, meaning through war. The courtroom will not be the venue for this fight.

I personally hope to see fewer and fewer appeals to law in the debate surrounding Cape secession, because it is simply irrelevant. In this respect, I disagree with fellow Rational Standard writer Jonathan Wright.

Instead, I would like to see Cape secessionists making compelling arguments for why an independent Cape would be better for liberty, in its political, social, and economic dimensions. I have seen precious little – none, in fact – solid research or analysis on this topic, other than 800-worder opinion articles. At this stage, it does not seem like Cape independence has any visionaries or intellectuals supporting the cause, and that cannot bode well. People are hungry for an alternative now more than ever, and if some truly think Cape independence is that alternative, I think they are wasting a golden opportunity.

In my next article on this topic, I will consider how liberals should approach the cause of Cape independence.