In examining the South African claim that the creation of the bantustans is an exercise of the right of self-determination of peoples, it is first necessary to examine the nature and extent of that right and the conditions for its exercise.
It is one of the most difficult questions in international law, especially when it is applied to “peoples” who form part of a sovereign State, rather than to those under colonial domination or military occupation.
The crux of the question is the conflict between the principle of the integrity of sovereign States and the assertion of the right of self-determination. Secretary-General U Thant described this in 1971 as a “problem which often confronts us and to which as yet no acceptable answer has been found in the Charter.”
The International Commission of Jurists had occasion to examine this question in the study it made on the events in East Pakistan, as Bangladesh was then called, in 1971. I will seek to summarise what we then said.
Under Article 1(2) of the Charter of the United Nations, one of the purposes of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…”
This principle finds its definition as a right in common article 1 of the two International Covenants on Human Rights. Paragraph 1 of that article reads:
“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;”
Paragraph 2 asserts the right of all peoples freely to dispose of their natural wealth and resources.
Paragraph 3 of the same article established that the duty to promote the realisation of this right is imposed upon all States Parties and not only upon the colonial Powers.
The conditions for the exercise of the right are, therefore:
These provisions do not, however, resolve the problem of the reconciliation of this right with the territorial integrity of States, nor do they specify the form or forms which self-determination may take, or define the “peoples” to whom the right of self-determination applies. For the first two of these questions one must turn to the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, approved by the General Assembly in 1970.
The principles of equal rights and self-determination of peoples is there defined in similar terms to those in the Covenants, with the addition of a requirement that a free determination of a people’s political status shall be made “without external interference.”
The form which self-determination may take is stated to be either the establishment of a sovereign and independent State, or free association or integration with an independent State, or any other political status freely determined by a people.
Under the Principle of Sovereign Equality of States, the territorial integrity and political independence of the State are declared to be “inviolable.”
The relationship of this principle to the right of self-determination is defined under the principle of equal rights and self-determination of peoples in these terms:
“Nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”
This crucial passage indicates the way in which the two conflicting principles are to be reconciled. It states that the principle of territorial integrity is to prevail in the case of sovereign States conducting themselves “in compliance with the principles of equal rights and self-determination of peoples” and possessed of a government representing the whole people of the territory without distinction as to race, creed or colour. By implication, where these conditions are not fulfilled, the right of self-determination may prevail over that of territorial integrity.
As just mentioned, the Declaration also states “the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right to self-determination by that people.”
This recognises that a State may include more than one “people” each of whom is entitled to self-determination, and that self-determination may be achieved within the framework of a larger State, as by various forms of local autonomy or by a federal constitution.
Although not relevant to the present case, it should perhaps be added for the sake of completeness that it is a generally accepted principle in international law that the right of self-determination is one which can be exercised only once. If a people or their representatives have once chosen to join with others in a unitary or federal State they cannot afterwards claim the right to secede under the principle of self-determination, or at least cannot do so if they enjoy equal rights under a government representing the whole people without discrimination.
When these principles are applied to the creation of the alleged independent States of South Africa, the first comment to be made is upon the paradoxical situation in which the claim to self-determination is put forward. A claim to independent status for a people within a sovereign State is usually made by the people concerned who strive to obtain that independence, who formulate the proposals and decide the territory for which they are seeking the independence, and it is the government of the sovereign State which usually opposes this. In the South African case, the roles are reversed. It is the government of the sovereign State which formulates the proposals, and decides to what peoples and to what territories they are to apply, and any attempt to organise opposition to their proposals by the persons concerned is ruthlessly repressed under laws supposedly formulated to protect the national security. To say the least, the motivation of these proposals is thus suspect from the outset.
Furthermore, the government which is claiming to create these independent States under the principle of self-determination is one which itself cannot claim legitimacy under that principle, since it violates the principle of equal rights by denying all political rights to over 80 per cent of the population on a basis of racial discrimination. It represents only the dominant white racial minority and not “the whole people belonging to the territory.” At the outset, therefore, the supposed granting of independence to the bantustans may be compared with a gift by a thief of stolen property. The donor seeks to confer title to something he possesses but to which he is not entitled.
If the South African Government wishes to convince the world that it has embraced the principle of self-determination, it must first grant equal rights, civil and political, as well as economic, social and cultural, to the Africans, the Asians and the Coloureds, as they are called, in their territory and in Namibia. If this were done, of course, the world would hear no more about the claim to independence of bantustans.
So much for the claim of South Africa to be granting self-determination. What then of the claim of the bantustan governments to be establishing themselves as independent States under this principle? This question does not, as is usual in such cases, depend on whether or not the population concerned has been denied equal rights or has been discriminated against. Rather, the issues are whether the populations concerned constitute “people” within the meaning of this principle, and if so, whether they have determined their political status and done so freely, and whether they are free to pursue their economic, social and cultural development. A very heavy burden lies on those seeking to assert this right, bearing in mind that there is no government in existence which represents the whole people of the territory from which they are seeking to secede, and that there is no way in which this whole people can make known their views on the subject.
The circumstances of the creation and development of the bantustans must now be examined in order to see whether the conditions are fulfilled for a legitimate exercise of the right of self-determination.
The history of the creation of the bantustans, later called “homelands,” which are now claiming independence, has been carefully traced in several studies. I may refer, for example, to the paper entitled “The South African bantustan programme: its domestic and international implications,” published by the Unit on Apartheid (now Centre against Apartheid) in 1975, and in particular to Divide and Rule: South Africa’s Bantustans.
Such studies show how the bantustans are but the latest stage in the application of a consistent racial policy by the white settlers towards the African, Asian and Coloured peoples. They find their origin in the slave labour in the seventeenth and eighteenth centuries, and in the seizure by the settlers of the best agricultural lands and the driving out of the Africans from these lands and from their pastures. When slavery was abolished at the beginning of the nineteenth century, “native reserves” were established in which the Africans were confined, and which they could leave only in order to serve the whites.
As mining and other industries were developed, the demand for cheap labour was satisfied by drawing on the labour force in the reserves, assisted by methods such as the notorious “hut tax,” forcing the Africans to seek work in the mines and industry in order to pay the tax. In time, with the increasing congestion and poverty in the reserves, more than half of the African working population was driven to seek employment in the urban areas or on white farms, where they lived in humiliating subjection in the townships or locations allotted to them.
The network of “native reserves” thus had an essential economic function to provide a plentiful supply of cheap labour for the white minority. The pattern was established of denying political and social rights to all but the whites and of maintaining in subjection a black labour force in the white areas, who were, or were regarded as, migratory citizens from the reserves, in which all other blacks were forced to live.
After the Second World War when the tide of world opinion turned towards the granting of independence to subject peoples and to the abolition of racial discrimination, the leaders of white South Africa formulated the theory of apartheid or “separate development” to seek to satisfy the consciences of their own people and of those with whom they wished to trade or whose investments they sought. When in turn this failed to impress, they developed under this theory the notion of bantustans or homelands, with supposed autonomy for the Africans in their own territories. As the final stage in the process, they have now purported to confer independence on 4 of the 10 or so bantustans they have created, and propose in time to extend this status to the others.
So, far from being a concession won by the African population from the whites, the whole bantustan programme, like the original “native reserves,” has been devised and formulated by the whites so as to maintain the economic subjection of the Africans and ensure the continuance of a plentiful labour force in the white areas, in which the Africans have no political rights. The territories of the bantustans are not coherent areas or traditional lands of African tribes, as the South African Government claims, but a patchwork of small pieces of land with their frontiers drawn in such a way as to exclude the lands of powerful white settlers or white-owned industries. The territories of two of the so-called independent States, Bophuthatswana and Ciskei, each with a little over half-a-million inhabitants, were divided into 19 separate areas, not counting the so-called “black spots.” Of the four supposedly independent States, the smallest, Venda, had, in 1970, 67 per cent of its allotted population living in the territory concerned; Ciskei and Transkei had 55 per cent; and Bophuthatswana only 36 per cent.
The bantustans are almost all rural areas containing no important towns, no seaports and no control over territorial waters. The land is being seriously eroded and exhausted and the population density is extremely high and increasing rapidly. The number of bantustans and the areas of land they comprise has been frequently altered by the South African authorities. The second most numerous tribe, the Xhosa, has been divided into two so-called independent States, namely, the Transkei and the Ciskei. One may ask why all this is necessary if the territories are, as is claimed, traditional tribal lands?
Most significant of all is the inclusion in the supposed bantustan populations of all the Africans living and working in the townships of the white areas. They are considered to be members of one or other of the tribes concerned, however tenuous their links with the bantustan territories. Africans who have lived for generations in the townships and who have no family or land in the bantustans, are now considered by the South African Government to be citizens of the so-called independent bantustans and are deprived against their will of their South African citizenship. In some of the newly proclaimed “independent homelands,” the governments have in turn denied their citizenship to those who do not want it. But whether they do so or not, in the eyes of the world all these people became stateless persons, since no government other than South Africa recognises the bantustans and the new allegedly independent States. These people are, therefore, being arbitrarily deprived of their nationality and their right to a nationality contrary to article 15 of the Universal Declaration of Human Rights. This deprivation of nationality has been characterised by the General Assembly in its resolution 37/69 A of 9 December 1982 as “an international crime.” Dr. Paul Weis states in his study on Nationality and Statelessness in International Law:
“Considering that the principle of non-discrimination may now be regarded as a rule of international law or as a general principle of law, prohibition of discriminatory denationalisation may be regarded as a rule of present-day international law. This certainly applies to discrimination on the ground of race, which may be considered as contravening a peremptory norm of international law.”
The purpose of this policy is to convert all Africans working in the white areas into aliens with no right to remain in the territory when they are no longer required as part of the labour force. As a South African Minister of the Interior has stated: “We are looking forward that in the near future there will not be a single black citizen within what is called white South Africa.” This has led in turn to the heartless mass population transfers through the deportations involved in the so-called consolidation or resettlement programmes. Some of these deportations have included the entire populations of townships from neighbouring urban areas. No official statistics are published, but the forced removals into the bantustans, with all the suffering which they entail, are now estimated at 3,500,000 Africans, and it has been estimated that the government programme, if fully carried out, could involve one in five of the African population, a total of nearly five million people. Can anyone believe that this is a policy freely determined by the people concerned?
Against this brief summary of the background, I turn to consider the conditions for a valid exercise of a right to self-determination.
The first question is whether the population concerned are “peoples” within the meaning of the principle of self-determination.
As already indicated, there is no agreed definition of “peoples” for this purpose. However, in the report entitled “Right to self-determination,” prepared for the Commission on Human Rights and its Sub-Commission in 1978, formulated the “elements of a definition” which have emerged from discussions on this subject in the United Nations, and which can be taken into consideration when it is necessary to decide whether or not an entity constitutes a people fit to enjoy and exercise the right to self-determination. These elements are as follows:
With regard to this third element, the report quoted the passage from the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, reconciling self-determination with territorial integrity. The report moreover states that “the principle of self-determination cannot be regarded as authorizing dismemberment or amputation of sovereign States exercising their sovereignty by virtue of the principle of self-determination of peoples.”
Applying these elements to the tribal entities of the bantustans, it is questionable whether the alleged tribal units are social entities possessing a clear identity and their own characteristics. As Barbara Rogers points out, the tribal classifications are artificial, reflecting the whites’ view of African traditional culture rather than the reality. There are, she says, basically only two linguistic groups of Africans in South Africa, the Nguni and the Sotho-speakers, which are in turn closely related to Bantu language groups. Some of the supposed “tribes” concerned have no bantustan status, whereas the Xhosa have, as has been pointed out, been divided into two bantustans. On the other hand, two of the “tribes,” the Pedi and the North Ndebele, have been allotted to a single bantustan. No choice has been offered to those concerned asking whether they wished to be divided or fused in this way.
The territories to which these “tribes” are said to be related are, as already stated, a conglomeration of areas inhabited largely by members of one “tribe,” though in some areas the members of the “tribe” do not comprise the majority of the population. In some cases, consolidation plans resulted in the separation of different “tribal” groups even though they may have been living peacefully together for generations.
Applying the third element of the definition, it is clear that the tribal units are an example of the ethnic or linguistic minorities with which a “people” should not be confused. The “people” in South Africa who are entitled to self-determination are the whole of the disenfranchised African population, and not each of the somewhat artificial tribal groupings of which the Africans are said to be composed.
The second and third conditions for a valid exercise of self-determination are that the people concerned have determined their political status and have done so freely without external interference. To this there can be only one answer. The political status of the bantustans, independent or not, has been determined not by the people concerned but by the South African Government and Parliament. Even those chiefs who accepted the principle of the bantustans and became the leaders of these subservient groupings have protested against the way in which their proposed territories were delineated by South Africa, and against the imposition upon them of workers from the white areas who do not want to be associated with the bantustans and whom the population living in the bantustans does not want to have forcibly transferred to their areas.
The controlled elections or referendums by which the populations are supposed to have approved the creation of the bantustans were in no sense a free determination of this issue. These territories inherited the whole corpus of South African law, with its paraphernalia of repressive measures designed to suppress any real dissent and to outlaw any organisations or activities aimed at achieving a real self-determination by the African people. The tribal chiefs, real or self-styled, who are co-operating in the bantustan programme, appointed and paid by South Africa, have made good use of these powers to suppress any real opposition to their policies.
The Reverend T. S. Farisani, the effective head of the Lutheran Church in Venda, to which the majority of the population belongs, described the bantustan and its referendum as follows, during a visit to Geneva in January l983:
“Vendaland and South Africa are to all practical purposes still one country, but for all political propaganda purposes they are two countries. In 1978 an election was conducted on the basis of whether the Venda people wanted independence or not. It is on record that over 80 per cent of the people voted against the ruling party and against independence and the members of Parliament of the opposition party who won the election were detained. When they were in detention, the governing party had a session to elect a president and in this way he won the vote and became the President of Vendaland and the Commissioner-General. A white man from South Africa, I remember, announced on the radio that P. Mphephu Hwa had been elected the President of Venda and Venda had become a good example to the whole of Africa. People were appointed to the cabinet; until today they are cabinet ministers. Candidates who performed hopelessly, in some instances getting only 2 per cent of the vote, are today Members of Parliament through fraud.
“So the Government we have as of now in Vendaland, per se, has not been elected by the people. To put it in clear terms, they have been rejected by the people and they must be very grateful to Pretoria that they are still in power.”
The Ciskei, another of the bantustans, granted so-called independence in December 1981, has a population of about 700,000, almost half of whom have been re-located there from “white” South Africa. The capital, Mdanstsane, is a “township,” second only in size to Soweto, which provides the labour force for the neighbouring East London in “white” South Africa. The ruler is Lennox Sebe, a commoner who ousted the Chief Minister in 1983 and proclaimed himself a chief, and, more recently, “President for Life.” He leads the single party, the Ciskei National Independence Party (CNIP), and rules largely through chiefs and headmen. The parliament has only 22 elected representatives and 32 appointed tribal personages. To enforce his rule, Sebe has an extensive security apparatus, including the police force, the Ciskei Central Intelligence Agency (CCIA), which works closely with its South African counterpart, the Traffic Police and, at times of unrest, an unruly force of auxiliary police or vigilantes, formerly known as the Green Berets. Ciskei has become notorious for the brutality, including systematic torture, with which it tried to repress a prolonged and eventually victorious transport strike.
A further example of South Africa’s disregard for the principle of self-determination by the population of the bantustans was its attempt to transfer against their will the population of KaNgwane to Swaziland, an attempt it had to abandon when the President’s action in 1982 of disbanding the bantustan was declared ultra vires by the courts.
The fourth condition for a valid exercise of the right to self-determination is that the people concerned are free to pursue their economic, social and cultural development. In this short paper, I will address briefly some of the main features of the economy of the bantustans.
The territory of the bantustans represents approximately 12 per cent of the total land surface of South Africa, much of it being poor agricultural land severely affected by erosion. According to the 1970 census, of approximately 15 million Africans in South Africa, about 7 million lived in the homelands. With population increases and deportations, this number will now be much greater, and in theory the whole of the African population is allotted to these territories. Such unequal apportionment of land and resources in itself makes a mockery of the term “separate development.”
The bantustans remain overwhelmingly subservient economically to South Africa through their dependency on income from migrant labour. Over 70 per cent of the economically active population is involved in the migrant labour system, nearly all being male workers. Access to employment in the white areas is strictly controlled by the pass laws and other restrictive legislation. It is an offence to leave a bantustan to seek work. A job must first be obtained through the labour bureaux in the bantustans, and Africans registered there have no freedom to choose their employment. They have to accept whatever they are offered. The legislation governing control of employment is used to channel African labour away from white urban areas into “border” industries, but even there, skilled work is largely, if not entirely, denied to the Africans.
At the end of their contract the workers must return to their bantustan and cannot obtain another job for at least a month. Owing to these conditions, the wages of workers from the bantustans are considerably lower than those of settled workers in the cities.
The economic development of the bantustans is dependent primarily upon the capital inflow, which is almost entirely channelled through investment corporations which are agencies of the South African Government. When the Tomlinson Commission drew up in 1954 its blueprint for the bantustan policy, it foresaw that to make their economies viable would require a massive investment and radically different policies to provide employment in the bantustans. In fact, the investment has been only a fraction of that recommended by the Commission. In the first 15 years of its operation, the Bantu Investment Corporation, controlled by the South African Government, provided three times as much capital to white-owned enterprises in the bantustans as to African-owned enterprises.
The bantustan administrations are dependent upon South Africa for financing their budgets, to the extent of between two thirds to three quarters, and a large part of these budgets have been devoted to financing the deportations and establishing townships and camps to replace existing homes.
The bantustan boundaries, like those of the “native reserves” before them, were drawn so as to exclude mining areas. Where minerals were found in the reserves the land containing them was simply excluded from the reserve. Similarly, in 1975 a strip of coast was excluded from the KwaZulu bantustan when it was found that it could yield 2,000 million rand worth of titanium in its sand dunes, more than the total current world output. It is now being exploited by United States and Canadian corporations in partnership with the South African Industrial Development Corporation.
Where minerals have subsequently been discovered in bantustans, the mining operations are controlled by the South African Government and its agencies. Long-term concessions are granted to South African corporations. The bantustan authorities are not a party to the negotiations, and receive no royalties or other payments for the mining concessions.
The extreme poverty of the bantustans, the constant deportations and the white domination of their economy make meaningless any claim to freedom to pursue social and cultural rights. Land reform has been rejected in favour of communal ownership with land allocations made by the chiefs. White farms purchased to add to the bantustans are owned and operated by South African government agencies. Increasing numbers of Africans are forced to leave the land and join the growing class of people with no means of subsistence, who are then “resettled” in camps or townships in the bantustans, adding to the workforce dependent upon migrant labour.
Studies on health conditions in the bantustans have shown reports of malnutrition in all sections of the population, but particularly in children, many of whom die or are brain-damaged as a result. Child mortality in the camps is particularly high.
Riots at schools have been frequent, the leaders usually being children sent to bantustan schools because official policy prevents them from attending schools at home in the cities. In 1973, about 130 pupils were arrested after a riot at Cofimvaba High School. It was reported that one of the reasons for the riot was fear of coming examinations for which they had not received textbooks, stationery or adequate teaching.
These are examples of conditions in the bantustans to which South Africa is granting alleged independence. Their subservience to South Africa in every field makes nonsense of any assertion that this so-called independence leaves them free to pursue their economic, social and cultural development.
The position is, therefore, that none of the conditions required under international law for a valid exercise of the right to self-determination is satisfied in the alleged conversion of the homelands into independent States, and the world community has very properly withheld recognition from them.
Let me conclude by quoting the words of John Dugard, Professor of International Law at the University of Witwatersrand. He said that basically, the South African law relating to the bantustans:
“fulfils four functions. Firstly, it constructs a legal order based on racial discrimination and differentiation. Secondly ... by legitimising discriminatory practices, it neutralises the immorality of such practices in the eyes of the majority of the white population who accept without question any rule which has been blessed by Parliament. Thirdly, those laws which institutionalise separate development provide a convenient facade for the outside world. The Promotion of Bantu Self-Government Act, the Transkei Constitution and the Bantu Homelands Constitution Act are useful for foreign consumption as they adopt the rhetoric of self-determination and self-government without disclosing the realities of South African life. Legal tinsel is used to conceal the fact that most of the African population lives outside the homelands and cannot in fact participate in the homelands’ political process; that the African people themselves have not been consulted about their future; and that self-determination inside or outside the homelands is meaningless while the harsh security laws remain in force. Fourthly, the drastic security laws ... create a repressive atmosphere in which meaningful political debate and activity is stifled.”