Cape Town - Self-determination is the dominant theme of contemporary Western Cape politics.
According to recent UN reports, the right of self-determination can be exercised in one of four ways: autonomy (devolution), federalism, secession, or unification.
The DA-led provincial government was elected on the promise of pursuing devolved powers, with polling showing that 76% of Western Cape voters support increased regional autonomy.
The recent UK Supreme Court judgment that specifically dealt with Scotland’s right to self-determination under international law, which found that Scotland did not have the authority to unilaterally call a second advisory independence referendum, was therefore significant.
Unhappy with Brexit, the Scottish National Party (SNP) formally requested a second referendum on Scottish independence.
The UK denied this request, saying that the time was not right. Scottish First Minister and leader of the SNP, Nicola Sturgeon, then instructed the Lord Advocate of Scotland to approach the UK Supreme Court to establish whether Scotland had the right to unilaterally call a consultative referendum that would not be binding on the UK government.
The court found that as the law currently stood, Scotland did not have the right to call a referendum unilaterally, but should follow the same process it had previously done in the case of the 2014 independence referendum.
This was relatively uncontentious, but there was one matter of great relevance to the Western Cape.
The court found that, as a democratic expression of the will of the people, all referendums are significant whether they are legally binding or not. In a democracy they cannot simply be ignored. The Supreme Court of Canada had reached an identical conclusion.
The Western Cape premier is empowered by clause 127(2)(f) of the Constitution to call a referendum, and therefore does not need permission from the national government.
Its outcome would not be legally binding, but what is now clear from both the UK and Canadian judgments is that South Africa cannot simply ignore it either.
The second issue which the UK Supreme Court was asked to consider was an assertion by the SNP that Scotland has a “fundamental and inalienable” right to self-determination under international law and that a failure to allow a second independence referendum would amount to a denial of its right to self-determination.
The UK court affirmed that Scotland does indeed have a right to self-determination before, significantly for the Western Cape, addressing whether Scotland was in fact already exercising it.
Referring to the Supreme Court of Canada’s opinion on Quebec, the UK Supreme Court directly equated the circumstances of the Scottish people with those of Quebecers.
The Canadian court found that should Quebec wish to secede based on the democratic will of Quebecers established by a referendum, Canada would have no right to prevent it from doing so, but that the parties would be required to negotiate the terms of secession.
Unlike Scotland and Quebec, the Western Cape does not currently enjoy self-determination. In the final reckoning, the UK judgment, in conjunction with the Canadian judgment, has established some extraordinarily powerful principles which, considered together with the Constitution, can fundamentally change the political landscape of the Western Cape.
The Western Cape can call a referendum, the result of that referendum cannot be ignored, the people of the province are entitled to self-determination but currently do not enjoy it, and self-determination can be exercised in the form of devolved powers, federal autonomy, or outright independence.
Until now the Western Cape government has been requesting autonomy from the national government.
Providing it can demonstrate the support of the Western Cape electorate in a referendum, it is now fully equipped to demand it.
* Craig is a co-founder of the Cape Independence Advocacy Group.
Cape Times
** The views expressed do not necessarily reflect the views of Independent Media or IOL.