Cape Town - Legal professionals and political analysts have called a bill aimed at federalising the Western Cape unconstitutional.
The Cape Independence Advocacy Group said the bill claims the right for the people of the Western Cape to make decisions for themselves, which will change the current constitutional order, where the people of the Western Cape are governed by decisions made by South Africans as a whole, even when they fundamentally disagree with them.
The group’s co-founder Phil Craig said that the unspoken claim is that Western Cape people do not exist, only South African people. This, he says, the bill disputes.
“The Western Cape Constitution, however, starts with the phrase ‘In humble submission to Almighty God, we, the people of the Western Cape’, and only adopts three of South Africa’s eleven official languages, clearly establishing that the ‘people of the Western Cape’ are distinct from the ‘South African people as a whole’,” he said.
Craig said that the bill would be tabled in the Western Cape Provincial Parliament and said this would be done because they do not want the ANC and EFF to vote it down.
Professor Nico Steytler from the Dullah Omar Institute at UWC said the group’s bill is “nonsense on stilts”.
“This group cannot produce a ‘bill’ for the Western Cape Provincial Parliament; only an MEC or member of the legislature may do so. This is merely a document, not a bill by any stretch of the imagination.
“Its claim that there is ‘a Western Cape people’ in terms of international law is mistaken. Basing its claim on WC’s ‘unique history, culture, demographics and, most significantly, its different ideological views’ places it beyond any international law recognition. Ideology has never been recognised as an indicator of ‘a people’; it is pure political posturing.”
Steytler said the Western Cape could not redefine its own constitutional status.
“The Constitutional Court has said a province cannot pull itself up by its own bootstraps to be something different than what the Constitution ordained. The provincial government has no power to hold a referendum on the province’s independence,” he said.
Bongani Luthuli, an attorney, said that South Africa had come very far in the constitutional project that started in the Codesa negotiations. He said a Bill of this nature is emotive and brings back difficult moments where the country was divided into Bantustans and segregation was the order of the day.
Craig hit back at the comments and said none of the experts have seen their document, as it has not been released for comment.
“The bill was written by a highly qualified legal team, and those independent experts who have seen the current draft have indicated that its impact will be profound.
“The South African Constitution establishes the Western Cape as a province, grants it legal authority, and establishes a provincial legislature whose explicit role is to represent the people of the Western Cape. The current Western Cape Government was elected on the promise of trying to redefine the balance of power between the province and the national government. This is exactly what the proposed bill intends to do. Talk of ‘Bantustans’ is dishonest and ridiculous.”
He added that in the language of international law, the people of the Western Cape are not governed according to their ‘freely chosen policy’.
“South Africa is falling apart at the seams, and the Western Cape, where the majority have never once voted for the architects of South Africa’s destruction, wants to take more control over its own destiny.
Post 1994, South Africa has repeatedly sworn to uphold the right to self-determination as contained in international law, and the people of the Western Cape are perfectly entitled to claim it should they so wish. The UN say it can be exercised in the form of devolution, federalism, or independence.”
He said morally and legally the Western Cape are “entitled to take control of their own destiny and South Africa should rejoice that Western Cape self-determination is being pursued peacefully and democratically...When it is tabled, the Western Cape Peoples Bill will enhance non-racial democracy, not threaten it.”