We contacted an MK Party Minister about repealing section 235

The MK Party has formally called on Parliament to repeal Section 235 of the South African Constitution through the proposed 24th Constitutional Amendment.

In response we decided to contact an MP representing the MK Party with the following questions:

• The International Law Commission (ILC) recognises self determination as a peremptory norm (jus cogens) of international law, while the International Court of Justice (ICJ) has ruled that it creates erga omnes obligations. How, then, can South Africa opt out of this right?
• South Africa has signed and ratified three international treaties since 1994 that guarantee self determination to all peoples, namely the ACHPR, ICCPR and ICESCR. Will you be calling on South Africa to withdraw from these treaties?

The MK minister’s response

In response to the first question the MP stated that:

It is correct that the right to self-determination is recognised in international law as a principle of high normative status, including through the work of the International Law Commission and jurisprudence of the International Court of Justice. However, the critical legal issue is not whether the right exists, it undoubtedly does, but how that right is properly interpreted and implemented within a constitutional democracy such as South Africa.

He continued:

International law does not prescribe a single institutional or territorial model for the exercise of self-determination. It recognises, in settled doctrine, a distinction between:

• External self-determination (typically associated with decolonisation), and
• Internal self-determination (realised through democratic participation, equality, and cultural, linguistic, and political rights within an existing state).

South Africa’s constitutional order already gives full effect to internal self-determination through:

• Universal suffrage and representative democracy, 
• A justiciable Bill of Rights, 
• Recognition of language, culture, and community rights, and 
• Systems of cooperative governance.

In this context, Section 235 is not the source of South Africa’s compliance with international law. Rather, it is an anomalous and potentially misleading provision that may be interpreted to suggest a right to exclusive territorial self-determination based on cultural identity, which is neither required by international law nor compatible with the Constitution’s founding values of non-racialism, equality, and territorial integrity.

The repeal therefore does not amount to an “opt-out” of self-determination. It is a clarification: that self-determination in South Africa is to be realised inclusively and democratically, not through fragmentation or exclusion.

My analysis of the MK minister’s response

The MP opens by acknowledging the legitimacy of self-determination as a principle of international law. However, this concession is immediately neutralised by a manoeuvre that is characteristic of centralising power.

By insisting that South Africa’s existing constitutional arrangements already fully satisfy the requirements of internal self-determination, the argument shuts down, in advance, any suggestion that distinct groups of people might deserve more meaningful rights or recognition.

This is a classic legal technique used by authoritarian states throughout history. The Soviet Union, for instance, enshrined the right to self-determination in its 1936 and 1977 constitutions, even nominally permitting secession, while in practice using centralised party control and the language of “socialist fraternity” to crush Baltic, Ukrainian, and Caucasian cultural and political independence movements. The right was kept in name, but its real meaning was taken away.

What’s happening here is similar. The MK refer to the principle, then define it so narrowly that it can’t actually change anything.

Out of everything that the MP said, the most telling is his last phrase, “that self-determination in South Africa is to be realised inclusively and democratically, not through fragmentation or exclusion.”

This way of framing, where expressing a distinct cultural or territorial identity is turned into something negative like exclusion or division, is not neutral. It is a political choice presented as legal reasoning. History shows many examples of this approach. Kemalist Turkey suppressed Kurdish identity, arguing that limiting language and culture was necessary for national progress and equality. In each case, the same idea was used. The state claimed that equality already existed, so any distinct claims were treated as threats rather than legitimate rights.

Section 235 of the South African Constitution, which the MP tries to describe as unusual, exists for a clear reason. The drafters understood that simple legal equality does not fully address the deeper claims of people with their own identities, histories, and ties to land. Calling its repeal a simple clarification instead of a real reduction of rights is misleading.

Even if you fully accept the MKs legal argument, a basic question is left unanswered: whose idea of unity is being applied, and who decides the terms? Legal scholars have long pointed out the tension between protecting state borders and recognising the rights of distinct groups within those borders. The response treats ideas like territorial integrity and non racialism as if they automatically support its position, but that mixes up legal principles with political outcomes. Non racialism is meant to prevent racial hierarchy, not to erase the cultural identity of groups such as the Cape Coloured, Khoi, Afrikaners and Anglos.

In the end, the MP uses the language of international law to support a political preference for a single, centralised system, and presents it as the only valid option. That is not neutral legal reasoning, it is advocacy. It also quietly pushes aside the claims of communities with distinct identities, land, and governance concerns, hiding this behind broad terms like cooperation and participation.