Simplistic idea of Constitution as supreme law of SA is flawed

While the focus has been on the humanitarian crisis in Gaza, South Africa’s decision to take Israel to the International Court of Justice has had wider implications, says the writer. Picture: AFP

While the focus has been on the humanitarian crisis in Gaza, South Africa’s decision to take Israel to the International Court of Justice has had wider implications, says the writer. Picture: AFP

Published Feb 5, 2024


Phil Craig

South Africa’s application to the International Court of Justice (ICJ) has commanded enormous media attention, both domestically and abroad.

Quite correctly, the focus has been on the humanitarian crisis unfolding in the Middle East. A preliminary order has now been issued, while the case itself will take several years to finalise.

South Africa’s actions, however, have had far wider implications, some of which are very significant domestically. As an advocate for Cape Independence, the legal formalities of the case have been very helpful.

Is the Constitution supreme?

Whether Cape Independence is legally possible has been a recurring theme of the secession debate. Many South African legal scholars who oppose the idea have sought to frame the legality of Cape Independence entirely within the context of the South Africa Constitution.

In essence, their argument is that if you can’t convince two-thirds of the South African Parliament, and six out of nine provinces in the National Council of Provinces to agree with you, then there will be no Cape Independence, because you cannot change the Constitution to allow it. South Africa is a constitutional democracy, and the Constitution is its supreme law.

This has always been a ridiculous notion. Secession is an extra-constitutional event. The Constitution is a pact between the South African people and the state.

Even just logically, if a defined group of people no longer wish to remain a part of that state, you cannot use the rules which they are no longer willing to agree to, to prevent them from disagreeing.

This would be akin to arguing a person could not divorce their partner because they previously signed a marriage certificate.

Right of self-determination

Why do the Western Cape people have the right to make decisions for themselves? Because all people have a right to self-determination.

Put simply, people must be in charge of their own destiny. Adding context, the people of Gauteng and Limpopo cannot decide whether the people of the Western Cape must remain a part of South Africa or not. That is a decision for the Western Cape people.

Underpinning the very different legal perspectives of those who say secession is legally possible, and those who say it isn’t, are two potentially conflicting principles of international law. The right of states to sovereignty (which to all intents and purposes is synonymous with territorial integrity) and the rights of all people to self-determination.

Again, adding context, as a sovereign state, can South Africa, in accordance with its Constitution, make the decision on whether the Western Cape can secede, or by virtue of their right to self-determination, can the people of the Western Cape make that decision themselves? Clearly both cannot be true at once.

Principles of international law

Over the course of the last hundred years, the balance between these two rights has fundamentally shifted. At the start of the 20th century international law favoured sovereignty. By the start of the 21st century, it favoured self-determination. Neither right is absolute.

In international law, the right of self-determination is now said to be a jus cogens right and an erga omnes obligation.

A jus cogens right is a peremptory norm in international law and one which all states have no choice but to abide by. In the context of the Western Cape people, this is highly significant.

South Africa cannot deny the Western Cape people self-determination, and nothing in the South African Constitution can derogate from that right.

Western Cape people entitled to self-determination

Many people try to limit the right of self-determination within South Africa to the text of section 235 of the Constitution.

However, once you recognise that self-determination is a jus cogens right, you then should have no other choice but to accept that regardless of whether s235 exists, and regardless of what it says even though it does exist, the Western Cape people have a right to self-determination which South Africa cannot deny.

In a report to the UN General Assembly in 2018, this point was emphasised when the report said, “The principle of territorial integrity has external application, ie State A may not invade or encroach upon the territorial integrity of State B. This principle cannot be used internally to deny or hollow out the right of self-determination of peoples, which constitutes a jus cogens right.”

It is important to note that secession and self-determination are not interchangeable terms. Secession is one form of self-determination, but there are others. Regional autonomy in the form of either devolution or federalism are also forms of self determination.

Other states have a legitimate interest

An erga omnes obligation means that other states have a duty to ensure that jus cogens rights are enforced.

This is significant, because once again it establishes that the simplistic notion of the Constitution as the supreme law of South Africa is flawed.

If South Africa, even if in accordance with its own Constitution, denies the right to self-determination to a people within its borders, then other countries have a legitimate right to intervene and to force South Africa to uphold the right.

This is where South Africa’s application to the ICJ comes in.

What was the basis of South Africa’s claim? That it had a legitimate right to interfere in the internal affairs of Israel, a sovereign state, because, regardless of whatever the Israeli legal framework may determine, South Africa alleges that Israel’s actions were in contravention of international law.

South Africa argued erga omnes partes, that Israel and South Africa were both parties to the Genocide Convention, and that even though South Africa was not directly affected by the dispute between Israel and Palestine, it had both a right and a duty to intervene. The court agreed.

Exactly the same principles apply to South Africa itself.

South Africa has signed three international charters which guarantee all people the right of self-determination.

These are the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, and African Covenant on Human and Peoples Rights. Every other signatory on each of those covenants (and there are more than 100 countries) can make exactly the same argument to intervene in South Africa as South Africa has made in Israel.

International law is notoriously hard to enforce, and the ICJ court case will not resolve the Israeli/Palestinian conflict. What the ICJ case has done, and will continue to do, is to significantly influence the parameters of the (geo)political solution which ultimately will need to be found.

Tellingly, no one, but no one, is currently arguing about what the Israeli constitution says. At this stage it is virtually irrelevant. Those who think Cape Independence is all about what the South African Constitution says should take heed.

* Craig is the leader of the Referendum Party and co-founded the Cape Independence Advocacy Group. He is fighting to establish a genuinely non-racial first world country at Africa’s southern tip.

Cape Times