OP-ED: Cape Independence One Step Nearer?

Is Cape Independence One Step Nearer?

The campaign for Cape Independence has certainly experienced its fair share of highs and lows since bursting onto the South African political scene a few years ago. One thing is now clear, if Cape Independence is to be achieved, it is going to have been a marathon and not a sprint.

Amongst serious political analysts there is little doubt that many, and most likely the majority, of Western Cape citizens are at the very least positively inclined towards the idea. This has been repeatedly established by credible polling. It is also clear, however, that these sympathies have not translated into votes at the ballot box leaving proponents of Cape Independence with an uphill task when it comes to serious progress.

A referendum is the pivotal moment of any independence campaign, and much of the Cape Independence movement’s energy thus far has been directed in trying to secure one.

Referendums and self-determination

International norms in how the right to self-determination is interpreted have evolved significantly in recent years, moving beyond de-colonisation to its acceptance as a fundamental principle of democracy. It is now widely accepted, including by the United Nations, that population groups have a right to determine their own future. A referendum is the accepted means of establishing exactly what future it is that the people in question want.

Both the South African and Western Cape Constitutions make explicit provision for the Western Cape Premier to call a provincial referendum. As a result, up until now, the focus of the Cape Independence movement has been on convincing Premier Alan Winde to do so, with the Cape Independence Advocacy Group (CIAG) leading the negotiations.

It has been a sharp learning curve and the Democratic Alliance (DA) has not always acted in good faith.

Initially the DA convinced the CIAG that a change in the legislation was necessary before such a referendum could be called, and it promised to draw up and table a Referendum Bill as a matter of urgency. It even offered to consult with the CIAG on the final wording. In the meantime, DA leader John Steenhuisen also promised that once the legislation had been passed, that the DA would indeed call a provincial referendum which included a question on Cape Independence.

Ultimately, the DA repeatedly delayed tabling its own legislation. It turned out that the legislation, while beneficial, was not necessary as existing laws could suffice. Additionally, the DA broke its promise to call a referendum on Cape Independence when asked to publicly confirm its commitment.

In response, the CIAG and its colleagues submitted a petition signed by 30 000 voters to Premier Winde, and when he refused to agree to call a referendum, the Referendum Party (RP) was formed to try and force the issue politically. The RP failed to secure enough votes to command a seat in the provincial parliament.

CIAG to organise private referendum

This left the independence movement back at square one. There is a high probability that voters will vote for Cape Independence in a referendum given the chance, but the Western Cape Premier is determined to deny them the opportunity.

The denial of a referendum is a serious blow. The biggest single obstacle in the way of Cape Independence is the belief by many who like the idea that it simply isn’t deliverable. The proverbial ‘pipe dream’. The failure to secure a referendum greatly strengthens this narrative, whereas conversely a referendum being held would take any such notion out of play. Voters would simply have to decide ‘Yes’ or ‘No’.

The solution the CIAG has now settled upon is to hold its own referendum.

International courts on referendum outcomes

This is not as crazy as it may at first seem. International courts have made it quite clear that in a democracy, regardless of any formal legal obligations, the outcome of an independence referendum would possess significant authority.

In a landmark ruling, the UK Supreme Court ruled that the Scottish Parliament did not possess the authority to unilaterally hold a non-binding independence referendum. In its judgement it addressed the consequences of what a referendum would mean regardless of whether it was legally binding or not, saying:

A lawful referendum on the question envisaged by the Bill would undoubtedly be an important political event, even if its outcome had no immediate legal consequences, and even if the United Kingdom Government had not given any political commitment to act upon it. A clear outcome, whichever way the question was answered, would possess the authority, in a constitution and political culture founded upon democracy, of a democratic expression of the view of the Scottish electorate. The clear expression of its wish either to remain within the United Kingdom or to pursue secession would strengthen or weaken the democratic legitimacy of the Union, depending on which view prevailed, and support or undermine the democratic credentials of the independence movement. It would consequently have important political consequences relating to the Union and the United Kingdom Parliament.

In its judgement, the UK Supreme Court lent heavily on a previous judgement by the Canadian Supreme Court who expressed its opinion even more succinctly:

The continued existence of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.

Proof of concept

Regardless of who organises it, a credible referendum result in the Western Cape will have profound significance and a privately-organised referendum will have no less legal authority than one instigated by the Premier.

For anyone who may remain unconvinced, a compelling international proof of concept already exists.

The Italian province of Veneto found itself in a very similar situation to the Cape Independence movement. The provincial and national government were unwilling to call a referendum, and the press were unsupportive and dismissive of the idea. Unperturbed, in 2014, the Veneto independence movement privately organised its own referendum which it then comfortably won. Italy found itself unable to ignore the outcome and consequently granted Veneto substantially more autonomy including receiving a far greater share of tax revenues generated in the province.

In the context of the Western Cape, this has great significance.

The DA-led Western Cape Government is actively, but largely unsuccessfully, pursuing greater autonomy. DA leader John Steenhuisen promised the DA’s Western Cape congress that on his very first day in power as part of a national government he would introduce a Devolution Act that would devolve powers to the Western Cape. He didn’t.

Meanwhile, Premier Winde has declared an intergovernmental dispute over inadequate funding from the national government to the Western Cape. To put this in context, the Western Cape is angered by a R3.8bn shortfall in its education budget, whilst the province subsidises the rest of South Africa to the tune of R300bn annually in net tax flows. Retaining a greater share of tax revenues raised in the province would solve the Western Cape’s well publicised budget problems.

Political gamechanger

A referendum, private or otherwise, will be a gamechanger politically. It fundamentally alters the political dynamics and will force decisive responses out of provincial and national governments.

Whilst Winde may be unwilling to instigate a referendum on Cape Independence himself, given the outcomes the Veneto referendum delivered, it seems extraordinarily unlikely that his government would look a gift horse in the mouth were such a powerful negotiating tool to be handed to it on a plate. And as the UK Supreme Court made clear, once you know, you know.

When it comes to Cape Independence itself, there will be many more hurdles for the CIAG and its partners to overcome before Cape Independence can become a reality. Circumventing the Premier, however, and organising the referendum yourself certainly removes one very significant obstacle.

If the Western Cape then votes to leave, it really will be game on.

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This article was first published on the Cape Independent: https://www.capeindependent.com/article/cape-independence-one-step-nearer