What is the Legal Process to Obtain Cape Independence

Explainer

International law is constantly developing and some of the legal concepts are contested. The purpose of this article is to give an easily digestible summary rather than an exhaustive analysis.

Key steps & timeline

1. Premier calls a referendum (Day zero)
2. Western Cape people vote for independence (0+12 months)
3. Negotiations with national government (13-53 months)*
4. Partition (0+54 months)
5. Government of national unity (54-57 months)
6. New government (0+57 months)

* (If SA refuses to grant independence, WC can claim it unilaterally)

(Timelines are estimates based on Brexit timeline)

Legal concepts and rights

1. All ‘peoples’ have the right to self-determination
2. Western Cape Constitution establishes a Western Cape ‘people’
3. Western Cape people have a right to self-determination
4. Self-determination is a right which all countries are required to uphold (a ‘jus cogens’ right)
5. South Africa has sworn to uphold the right of self-determination for all peoples
6. Countries are not allowed to use the principle of territorial integrity to hollow out the right of self-determination (SA cannot use the ‘unitary state’ argument to prevent self-determination)
7. Western Cape is entitled to (not prohibited from) leave South Africa without its permission
8. Other countries are entitled to force South Africa to honour the right of self-determination (an ‘erga omnes’ obligation)
9. In a disputed secession, the international community becomes the judge (not the SA ConCourt) through the process of international recognition

Reference materials

The numbers used refer to the numbers in the section of legal concepts and rights above.

1. Sources of the right to self-determination which South Africa has signed, (UN Charter, African Covenant on Human and Peoples Rights, International Covenant on Civil and Political Rights, International Covenant on Economic, Social, and Cultural Rights)
2. Preamble of the Western Cape Constitution (approved by SA ConCourt)
3. See point 1 above
4. UN reports A69/272 (2014) and A/HRC/36/63 (2018) 
5. See point 1 above
6. See point 4 above
7. International Court of Justice (ICJ), Kosovo advisory opinion, 2010
8. See point 4 above
9. See point 4 above

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