by Phil Craig
Cape Town mayor Geordin Hill-Lewis has promised to “fight tooth and nail” to obtain expanded policing powers for the metro.
Last week, he announced that he had made a formal written request to Police Minister Bheki Cele calling for additional powers, which he asserts Cele has the authority to grant under section 99 of the Constitution.
In response, Cele said that the Constitution establishes policing as a single entity under the control of the national government and that Hill-Lewis was “crying at the wrong funeral”.
If all of this seems remarkably familiar, that is because it is.
In 2019, Western Cape Premier Alan Winde was elected on a manifesto promise of “leading the fight to devolve policing powers and budgets from national to provincial government”.
In September 2021, Winde also formally requested that policing powers be devolved to the province during a debate in the National Council of Provinces (NCOP).
On that occasion, Cele said: “This government is forging ahead in fully implementing the ideals of a single police service as directed by the Constitution. The rogue conduct by certain metros of creating parallel structures of law enforcement aimed at undermining the Constitution cannot be left unchallenged.”
Seemingly unperturbed by their latest rebuff, the following day the DA proudly announced in its news briefing that “The City of Cape Town has started the formal process to devolve SAPS policing powers so that Cape Town can create its police force”.
Given that their request had already been rejected, and not for the first time, this appeared to be a little disingenuous.
The DA’s website contained no reference to the process, and requests for clarification have gone unanswered.
Both the viability of the process and the sincerity of the DA’s actions are essential to understand. The devolution of policing has a context which extends well beyond just law and order. It is the test case for what the DA has started to coin, “functional federalism”.
The extent to which the DA has been pressured by calls for Cape Independence has largely been overlooked, especially now that the current focus has shifted towards a post-2024 coalition government and the demise of the ANC.
However, knowing that the majority of their Western Cape voters support Cape Independence, and understanding better than anyone the realities of a coalition government, the DA is well aware that this respite will be temporary.
Functional federalism is their response, with “functional” being a tacit acknowledgement that they don’t believe they can deliver constitutional federalism.
DA Western Cape interim leader Tertuis Simmers last week took part in a live debate on Cape independence. The provincial leaders of the ANC, VF Plus, and the ACDP were also present. He argued that Cape independence could take many forms, pressing the point that what most people wanted was independence from the ANC.
He suggested our democracy was evolving, and that debate around Western Cape secession was a positive sign of increasing maturity. He offered functional federalism as the immediate solution and specifically focused on policing as its starting point. Perhaps, he ventured, once the Western Cape has widely devolved power, calls for full independence will fall away.
As the spokesperson for the Cape Independence Advocacy Group (CIAG), I tend to agree with Simmers. Regardless of our views on federalism, if the DA can deliver “functional federalism” to the Western Cape, the majority of Western Cape voters would likely be happy.
If their plan distils down to repeatedly appealing to Cele’s better nature, quoting a section in the Constitution which says Cele can, at his sole discretion and with the approval of the president, give them the powers they seek if he so wishes, then they don’t have a plan at all.
In the view of the CIAG, there is only one legal solution to obtaining federal powers in any form, and that is by claiming the right to self-determination, which is guaranteed in the African Charter on Human and People’s Rights (ACHPR), as well as several other instruments of international law, all of which South Africa has ratified since 1994.
Self-determination is an established principle of the South African Constitution, albeit an unexplored one, and the Constitution recognises the authority of international law.
Under international law, self-determination can then be exercised in the form of autonomy, federalism, secession, or unification. It is a right which is not self-executing and needs to be claimed, but once it has been claimed the parent state is obliged to grant it.
Given the terrible misuse of the term in the past, there is going to be some discomfort in South Africa coming to terms with what internationally is a universally accepted right.
Perhaps it will help that the current South African government has been outspoken about how the Palestinians, Western Saharans, South Sudanese and others are entitled to self-determination.
One thing is sure, if the DA wants to deliver “functional federalism” it needs a viable plan, and it will have to stop talking about devolution and start delivering it.
Its 2024 manifesto pledges promising to deliver devolution will be worthless if the 2019 ones all turn out to have been hot air.
* Phil Craig is the co-founder and spokesperson for the Cape Independence Advocacy Group.
** The views expressed here are not necessarily those of Independent Media.
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