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The Independence of Transkei - a Largely Constitutional Inquiry

Published online by Cambridge University Press:  11 November 2008

William B. Harvey  and
W. H. B. Dean
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Extract

The South African commitment to racial separation is well-known. The deep historic roots of apartheid, the religious fervour with which it is justified by its proponents, and the rapidly growing weight of criticism by which it is condemned throughout the world have served to make it a familiar ideology and policy. Less well-known is the extent to which separation in a relatively superficial, transient context – in stores, theatres, parks, some hotels and restaurants – has been eroded in recent years. Least familiar, despite the substantial propaganda of apologists for the system, is the transmutation of the negative commitment to apartheid into an affirmative effort to foster and guide what the Government labels ‘separate development’. One of the most significant achievements thus far of this policy was the birth on 26 October 1976 of Transkei, presented to a doubting world by its South African parent as a sovereign, independent nation in which its African citizens could work out their destiny, just as the dominant white population of the Republic of South Africa assert an entitlement to realise their own.

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Articles
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The Journal of Modern African Studies , Volume 16 , Issue 2 , June 1978 , pp. 189 - 220
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Copyright © Cambridge University Press 1978

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References

page 189 note 1 Bantu Trust and Land Act, No. 18 of 1936.

page 189 note 2 Bantu Affairs Act, No. 23 of 1920, later superseded by No. 55 of 1959.

page 190 note 1 See Landis, E. S., ‘South African Apartheid Legislation’, in Yale Law Journal (New Haven), 71, 1961, p. 1, and 1962, p. 437.Google Scholar

page 190 note 2 Report of the Commission for the Socio-Economic Development of the Bantu Areas within the Union of South Africa (Pretoria, 1955).Google Scholar

page 191 note 1 Representation of Natives Act, No. 12 of 1936.

page 192 note 1 The attack on apartheid, and specifically on the Homelands policy, has been unremitting in the United Nations. Resolution 3411 D, adopted by the 30th Session of the General Assembly on 28 November 1975, condemned the establishment of ‘bantustans’ as designed ‘to consolidate the inhuman policies of apartheid, to perpetuate white minority domination and to dispossess the African people of South Africa of their inalienable rights in their country’, and called upon all governments and organisations not to deal with any institutions or authorities of the bantustans or to accord any form of recognition to them.

During the 31st Session, the Special Committee Against Apartheid, referring to the South African Government's intention ‘by its diabolical bantustanization scheme to deprive all the African people of their South African citizenship and to grant them fraudulent citizenship in the bantustans’ and ‘to declare the fictitious independence of the Transkei’, recommended that the General Assembly: ‘condemn the declaration of “independence” of the Transkei as utterly invalid; call on all Governments to refrain from extending any form of recognition of the Transkei and any contact with the authorities of that banrustan; call on all corporations, organizations, institutions and individuals to refrain from any dealings with the puppet authorities in the Transkei; and declare that the inhabitants of the Transkei and all others designated as “citizens” of that bantustan remain citizens of South Africa, with full rights to decide the destiny of that country as a whole’. Report of the Special Committee Against Apartheid, Vol. I, pp. 48–9, General Assembly Official Records, 31st Session, Supplement No. 22.

The General Assembly on 26 October 1976, by a vote of 134–1, adopted a resolution that ‘1. Strongly condemns the establishment of bantustans as designed to consolidate the inhuman policies of apartheid, to destroy the territorial integrity of the country, to perpetuate white minority domination and to dispossess the African people of South Africa of their inalienable rights; 2. Rejects the declaration of independence of the Transkei and declares it invalid; 3. Calls upon all Governments to deny any form of recognition to the so-called independent Transkei and to refrain from having any dealings with the so-called independent Transkei or other bantustans; Requests all States to take effective measures to prohibit all individuals, corporations and other institutions under their jurisdiction from having any dealings with the so-called independent Transkei or other bantustans’.

page 193 note 1 Land has been one of the principal sources of discord between the Governments of South Africa and Transkei both before and after independence. According to a report in The Cape Times, 30 March 1977, Chief Kaizer Matanzima, the Prime Minister of Transkei, threatened to ‘break all relations with South Africa’ and to engage in an ‘armed struggle’, if the corridor of land separating two parts of the new state was not transferred to Transkei, although the South African Government had previously rejected these claims. Legislation is passing through the South African Parliament in the 1978 session to transfer this corridor to the Province of Natal. The dispute over this land, and the desire to incorporate the neighbouring Ciskei Homeland, account for the rather peculiar territorial definition in section 1 of the Republic of Transkei Constitution Act, 1976.

page 194 note 1 Republic of South Africa Constitution Act, No. 32 of 1961, section 59(1), declares Parliament to be the ‘sovereign legislative authority in and over the Republic’.

page 194 note 2 For such analyses, see Wheare, Kenneth, Constitutional Structure of the Commonwealth (Oxford, 1960), chs. III and IVGoogle Scholar; and Marshall, Geoffrey, Constitutional Theory (Oxford, 1971), ch. III.Google Scholar

page 194 note 3 Anson, , ‘The Government of Ireland Bill and the Sovereignty of Parliament’, in Law Quarterly Review (London), II, 1886, p. 427.Google Scholar

page 195 note 1 The South African Parliament enacted the Status of the Transkei Act in June 1976. Pursuant to section 3, the Legislative Assembly of the Transkei, as constituted under the Transkei Constitution Act of 1963, was freed of its earlier disabilities and authorised to make laws, including a constitution. Thus the British pattern by which an independence constitution was appended to, and brought into force by, an Order-in-Council was not followed. Rather, the metropolitan enactment (apart from its provisions relating to citizenship) was simply enabling, and the constitution of Transkei was adopted by the Legislative Assembly, sitting as a constituent body, which thereafter continued as the National Assembly of Transkei. Whether this process will contribute to a more stable constitutional order remains to be seen.

page 195 note 2 Laurence, Patrick, The Transkei: South Africa's politics of partition (Johannesburg, 1976), pp. 10–11 and 64.Google Scholar

page 195 note 3 Such a claim was made by Professor I. Rautenbach of the Rand Afrikaans University and supported by Chief George Matanzima, Minister of Justice of Transkei, at a conference of the Society of University Teachers of Law, Stellenbosch, 25 January 1977.

page 195 note 4 Republic of Transkei Constitution Act, 1976, section 17(1). This Act is hereinafter referred to as the Transkei Constitution. The President is elected by the National Assembly and holds office for seven years, but can be removed by the same body; ibid, sections 3–5 and 7.

page 196 note 1 Ibid, section 18. The Constitution Bill, section 18(3)(b), provided that a non-member of the National Assembly might be appointed a Minister of State, and thus a member of the Executive Council, but he could serve no longer than three months unless he became a member of the Assembly. The constitution as enacted requires membership in the Assembly at the time of appointment, however.

page 196 note 2 The terminology is the same as that used in the Republic of South Africa Constitution Act, No. 32 of 1961, and the Executive Council under this Act is commonly referred to as ‘the Cabinet’.

page 196 note 3 Transkei Constitution, section 17(4).

page 196 note 4 Ibid, sections 2(4) and 17(4). The similar provision of the South African Constitution Act of 1961, section 7(5), refers to the ‘constitutional conventions which existed immediately prior to the commencement of this Act’. Ultimately, therefore, reference must be made to British constitutional practice.

page 196 note 5 Transkei Constitution, sections 3 and 4.

page 196 note 6 The dismissal during 1977 of Gough Whitlam, Prime Minister of Australia, by the Governor-General whose constitutional powers are analogous to those of the President of Transkei, suggests such a possibility. Such division of executive power can be productive of conflict, as Nigeria's early experience indicates – cf. Nwabueze, B. O., Constitutionalism in the Emergent States (London, 1973), pp. 55ff.Google Scholar

page 196 note 7 These issues are more fully discussed in Booysen, H., Wiechers, M., and van Wyk, D. H., Kommentaar op die Transkeise Ontwerpgrondwet en die Wetsontwerp op die Status van die Transkei (Pretoria, 1976).Google Scholar

page 197 note 1 Transkei Constitution, sections 21–2, 28(1), and 29.

page 197 note 2 See Laurence, op. cit. ch. 7. The Daily Dispatch (East London), 16 10 1976Google Scholar, reported that 72 of the 75 chiefs supported the T.N.I.P. immediately before independence. But according to The Argus (Johannesburg), 21 and 30 03 1978Google Scholar, and The Weekend Argus, 25 March 1978, there have already been 10 defections from the T.N.I.P. among the Pondo chiefs – a group that originally spearheaded the support for Chief Matanzima – and there are suggestions that others may follow this lead.

page 197 note 3 Daily Dispatch, 20 October 1976.

page 197 note 4 The primary legal instrument has been Proclamation R. 400 of 1960, South African Government Gazette Extraordinary, 6582 of 30 November 1960, as amended by Proclamation R. 413 of 1960, ibid. 6594 of 14 December 1960. According to Laurence, op. cit. pp. 34ff, the Proclamation was issued after considerable unrest in the Transkei and never withdrawn. It authorises, inter alia, indefinite detention without trial, and declares (subject to exceptions) that all meetings of more than ten ‘natives’ are illegal – see Mathews, A. S., Law, Order and Liberty in South Africa (Berkeley and London, 1972), pp. 153–4 and 243–7.Google Scholar Using this authority the Government of Transkei detained six members of the opposition Democratic Party (including its leader) on the eve of nominations for the general election preceding independence, while eight other persons (apparently members of the opposition) and one opposition member of the National Assembly were detained shortly after independence. Daily Dispatch, 10 August and 11 and 16 November 1976. For a useful short treatment of the implications of the security legislation for the political process in South Africa, see Mathews, A. S., ‘Security Laws and Social Change in the Republic of South Africa’, in Adam, Heribert (ed.), South Africa: sociological perspectives (London, 1971), pp. 228–48.Google Scholar

page 198 note 1 See Daily Dispatch, 10 and 16 November 1976.

page 198 note 2 Transkei Constitution, section 66.

page 198 note 3 Ibid, sections 21(3) and 41.

page 198 note 4 Ibid, sections 2(2) and 33.

page 198 note 5 Ibid, sections 21(3), 39(2), 40(2), and 41.

page 199 note 1 Ibid, section 21(a).

page 199 note 2 Ibid, section 75.

page 199 note 3 Ibid, section 21(4). It can be argued that such a limitation still permits judicial review on limited procedural grounds. Cf. Beinart, B., ‘The South African Appeal Court and Judicial Review’, in Modern Law Review (London), 21, 1958, pp. 587 and 603–4Google Scholar, and Kahn, E., ‘Constitutional Law’, in 1956 Annual Survey of South African Law (Cape Town, 1957). P 15.Google Scholar

page 199 note 4 Constitution of South Africa, section 59. This differs from the Transkei provision in leaving open for some judicial scrutiny legislation amending the entrenched provisions on equality of English and Afrikaans as official languages, and on the process for amending the language provision of the constitution.

page 199 note 5 Chief George Matanzima, loc. cit. 25 January 1977. The Preamble to the Transkei Constitution contains, inter alia, the following phraseology:

‘We, the people of Transkei rightfully represented in this Assembly, do hereby adopt, enact and give to ourselves this Constitution.

We solemnly resolve to constitute Transkei into a sovereign and independent Republic wherein its citizens and all others who dwell lawfully within its borders are assured of social, political and economic justice, freedom of speech, assembly and worship, and unimpeded access to and equality before the law.

And we do further determine to use the powers which we do hereby take to ourselves for the promotion of the spiritual and material well-being of all in our midst, the maintenance of law and order, the defence of our country against its enemies and the furtherance of peace among the nations of the world’.

page 200 note 1 A constitutional argument somewhat similar to that suggested by Chief George Matanzima was urged upon the Supreme Court of Ghana in 1961 in an attack on the Preventive Detention Act, namely that justiciable individual rights were created, not by a Preamble to the Constitution, but by a ‘solemn declaration’ required of the President on his assumption of office. This included provisions that ‘no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief’, and that ‘subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion or speech, of the right of access to courts of law’. The Supreme Court of Ghana rejected the argument that these provisions rendered the Preventive Detention Act unconstitutional, analogising the Presidential declaration to the Coronation Oath taken by the Queen of England, which at most created a moral obligation and provided a political yardstick by which official action could be measured. Baffour Osei Akoto, Civil Appeal No. 42/61, dated 28 August 1961, discussed by Harvey, W. B., Law and Social Change in Ghana (Princeton, 1966), pp. 285–90.CrossRefGoogle Scholar

The constitutional appropriateness of a similar status for the Preamble to the Transkei Constitution is clearly indicated in section 21(4), which withholds from the courts any power to pronounce on the validity of legislation.

page 200 note 2 Transkei Constitution, sections 54(1)(b) and 60.

page 200 note 3 Ibid, section 53.

page 200 note 4 Ibid, section 60(1) and schedule 9.

page 200 note 5 See Allott, Antony, Essays in African Law (London, 1960), pp. 3–27Google Scholar, and New Essays in African Law (London, 1970), pp. 9–69.Google Scholar

page 201 note 1 Transkei Constitution, section 74 and schedule 11.

page 201 note 2 For a discussion of the case of Ghana, which is typical, see Harvey, op. cit. pp. 272–342.

page 201 note 3 For example, the Reservation of Separate Amenities Act, No. 49 of 1953, the Group Areas Act, No. 36 of 1966, and the Prohibition of Political Interference Act, No. 51 of 1963, have all been repealed in Transkei by section 74(1) of the Constitution Act. Also The Sunday Times (Johannesburg), 17 07 1977Google Scholar, reported the repeal, ungazetted at that date because the State President who was ill had not yet signed the legislation, of both the Prohibition of Mixed Marriages Act, No. 55 of 1949, and the Immorality Act, No. 23 of 1957, section 16 of which made sexual intercourse and activity between persons of different races an offence. Certain schools, hospital facilities, and clubs for whites-only continue to exist in post-independence Transkei, according to Laurence, op. cit. p. 105.

page 202 note 1 Transkei Constitution, section 44.

page 202 note 2 Ibid, section 45.

page 202 note 3 Ibid, section 46(1).

page 202 note 4 Ibid, sections 46(4) and 48. These safeguards are, of course, at the mercy of Parliament, according to section 75.

page 202 note 5 Government Gazette, No. 5320, 22 10 1976, pp. 21–3.Google Scholar

page 202 note 6 The status of agreements of this kind in general is more fully considered by Booysen, Wiechers, and van Wyk, op. cit. pp. 16ff, and by Dugard, John, ‘Public International Law’, in 1376 Annual Survey of South African Law, pp. 26ff.Google Scholar On the position of judges in particular, see Milton, J. R. L., ‘The Administration of Justice, Law Reform and Jurisprudence’Google Scholar, in ibid. p. 543.

page 203 note 1 Transkei Constitution, section 54(1)(e).

page 203 note 2 Appeals from the Supreme Court of Transkei Act, No. 62 of 1976.

page 203 note 3 Transkei Constitution, section 74(1).

page 204 note 1 Palley, Claire, ‘Rethinking the Judicial Role: the judiciary and good government’, in Zambia Law Review (Lusaka), 1, 1969, p. 1Google Scholar, points out that the attitude of judges to the question of civil liberties tends to change radically once independence has been granted. The Transkeian Supreme Court will probably continue to be staffed by South African-trained lawyers, and it will be interesting to see whether a development similar to that described by Palley will occur in Transkei. If it does, the rôle of the Appellate Division of the Supreme Court of South Africa will then become especially critical.

page 204 note 2 According to Article 42(1) of the 1960 Republican Constitution of Ghana: ‘The Supreme Court shall in principle be bound to follow its own previous decisions on questions of law, and the High Court shall be bound to follow previous decisions of the Supreme Court on such questions, but neither court shall be otherwise bound to follow the previous decisions of any court on questions of law’. See Harvey, op. cit. pp. 255–9, and Asante, S. K. B., ‘Stare Decisis in the Supreme Court of Ghana’, in University of Ghana Law Journal (Legon), 1, 1964, p. 52Google Scholar, for two analyses of interpretation problems. More generally, see Allott, , New Essays in African Law, pp. 70–103.Google Scholar

page 204 note 3 Transkei Constitution, section 53(1).

page 204 note 4 Ibid, section 53(2).

page 205 note 1 Apart from exceptional cases created by legislation, ‘Bantu’ law has to be proved before the Supreme Court of South Africa; on this problem generally, see Seymour, S. M., Bantu Law in South Africa (Wynberg, Cape, 3rd edn. 1970), pp. 37ff.Google Scholar

page 205 note 2 See Suttner, R. S., ‘Legal Pluralism in South Africa: a reappraisal of policy’, in International and Comparative Law Quarterly (London), XIX, 1970, p. 134.Google Scholar

page 205 note 3 Seymour, op. cit. passim.

page 206 note 1 For a general review of the treatment of repugnancy clauses, see Allott, , New Essays in African Law, pp. 158–75.Google Scholar

page 207 note 1 Transkei Constitution, sections 57(d) and 58.

page 207 note 2 Transkei Constitution Act, No. 48 of 1963, section 7(1) and (2).

page 207 note 3 Ibid, section 7(3).

page 208 note 1 Status of the Transkei Act, section 6 and schedule B.

page 208 note 2 Interpretation Act, No. 33 of 1957, section 13(2): ‘Where any law … is expressed to come into operation on a particular day, it shall be construed as coming into operation immediately on the expiration of the previous day.’

page 208 note 3 Transkei Constitution, sections 57–9.

page 208 note 4 Status of the Transkei Act, sections 2–3.

page 209 note 1 Section 73(vii) of the Transkei Constitution provides that ‘father’ in relation to an illegitimate child ‘means or includes the mother of the child’.

page 209 note 2 Ibid, section 57(a).

page 209 note 3 Ibid, section 57(b).

page 209 note 4 Ibid, section 57(c).

page 209 note 5 Status of the Transkei Act, section 6(1) and schedule B.

page 209 note 6 We note, but do not deem significant, the logical possibility that a South African citizen may be a citizen of Transkei in terms of the independence constitution, but not in terms of the Status Act. In that case he would not be deprived of his South African citizenship under section 6(1) of the Status Act and would hold dual nationality.

page 210 note 1 Status of the Transkei Act, section 6(3).

page 210 note 2 The extent of ‘rights’ accorded to black persons who are not South African citizens is dependent upon administrative practices rather than any rules of law. This varies according to status: e.g. foreign black labourers employed in the gold mines are in an inferior position to South African blacks, while visiting dignitaries are exempted from many of the restrictions which would normally apply. The situation is fraught with uncertainties and inconsistencies.

It should be noted that the international trend has been to postulate rights for all persons equally, not to establish special protections for aliens. In the constitutional order of the United States, citizenship has played historically a minimal rôle, rights and protections in general being accorded to ‘persons’. Bickel, Alexander, The Morality of Consent (New Haven, 1975), pp. 53–4Google Scholar, has argued persuasively the case against regarding citizenship as the critical relation between government and the governed: ‘Citizenship is a legal construct, an abstraction, a theory. No matter what the safeguards, it is at best something given to some and not to others, and it can be taken away. It has always been easier, it will always be easier, to think of someone as a noncitizen than to decide that he is a nonperson … I find it gratifying, therefore, that we live under a Constitution to which the concept of citizenship matters very little, that prescribes decencies and wise modalities of government quite without regard to the concept of citizenship. It subsumes important obligations and functions of the individual which have other sources – moral, political, and traditional – sources more complex than the simple contractarian notion of citizenship. “The simple governments”, wrote Burke, “are fundamentally defective, to say no worse of them”. Citizenship is at best a simple idea for a simple government.’

page 210 note 3 For example, according to The Sunday Times, 30 January 1977, the Transkei Ambassador to South Africa has commented on the ‘sadistic, insensitive and inhuman’ treatment of Transkei nationals by Bantu Affairs officials administering the South African pass laws. Professor M. Njisane reported that Transkeians carrying valid Transkei travel documents were subjected to influx controls by officials who delighted in saying ‘So you think you are independent’, and who threw the Transkei documents back in their faces. The Ambassador continued: ‘My expectation of independence was that we would be treated exactly the same as the citizens of other independent countries. I was wrong.’

The status of citizens of the independent Homelands who are resident in South Africa is somewhat clarified by legislation enacted in the 1978 session of the South African Parliament, which according to The Cape Times, 3 November 1977, has resulted from the pre-independence negotiations between Chief Mangope of Bophuthatswana and the South African Government. Citizens of both Transkei and Bophuthatswana will receive special treatment in the South African legislation which regulates the lives of black South Africans with regard, for example, to residence, employment, and entry into South Africa. It is apparent from this legislation that such persons are to be denied such ‘rights’ as they may previously have enjoyed in South African law – for example, the rights of residence under section 12 of the Bantu (Urban Areas) Consolidation Act, No. 45 of 1945, as amended by section 2 of the Bantu Laws Amendment Act, No. 12 of 1978 – and that the concessions will take the form of exemptions granted by the Executive which can be withdrawn at any time.

page 211 note 1 Rand Daily Mail (Johannesburg), 26 10 1976.Google Scholar This statement and its implications were called to our attention by a paper prepared by Professor John Dugard of the University of the Witwatersrand, entitled ‘Transkei and the United Nations’, which was presented to a conference of the South African Institute of International Affairs and its Transkei Branch, held in Umtata on 24–27 November 1976.

page 211 note 2 See the Nottebohm case in 1955 I.C.J. Reports 2.

page 212 note 1 Transkei Constitution Act, 1963, section 7(a).

page 212 note 2 Transkei Constitution, section 57 (b).

page 212 note 3 For example, under schedule B, para.(f), a South African citizen who is not a ‘citizen of a territory within the Republic of South Africa’, not a Transkeian citizen in terms of earlier provisions of the schedule, and who ‘speaks a language used by the Xhosa or Sothospeaking section of the population of the Transkei’, including any of its dialects, acquires Transkeian citizenship and under section 6(1) loses his South African citizenship.

page 213 note 1 During the course of 1976, the South African Government unveiled proposals for a new constitutional dispensation embracing whites, ‘coloureds’, and Asians. Although an election has since been fought partly on these proposals and steps are now being taken to implement them, no official statement setting out the proposals has yet been issued. As far as can be gathered, they will involve an executive President working together with a ‘Council of Cabinets’ consisting of all three groups (with whites in the majority), and with a separate legislature to be established for each. As usual, interpretations of these proposals differ radically, ranging from the view that they represent a sincere attempt to involve ‘coloureds’ and Asians at all levels of governmental decision-making, to the fear that they are simply a device for concentrating much greater power in the hands of the President and the ruling white party to whom he is, in effect, solely responsible.

page 213 note 2 See Dean, W. H. B., ‘Whither the Constitution?’, University of Cape Town Inaugural Lecture, New Series, No. 35, 2 10 1975Google Scholar, for a study of the increasing executive dominance under the constitution of South Africa.

page 213 note 3 In other newly-independent African countries, the traditional rulers, when included within the framework of national government, have not been effective as counterweights to the new national power élites. Indeed, their status and powers have usually been sharply curtailed. For the example of Ghana under the Nkrumah Government, see Harvey, op. cit. pp. 66–122.

In some measure, this fate of the traditional authorities may reflect merely their own limited perspectives which were well-evidenced during the colonial period. One recalls, for example, the observation of a Ghanaian scholar sympathetically oriented towards traditional institutions, that the concerns of the Ashanti Confederacy Council were largely limited to ‘cocoa and chiefs’. Busia, K. A., The Position of the Chief in the Modern Political System of Ashanti (Oxford, 1951), p. 177.Google Scholar

In Transkei the chiefs are caught between conflicting pressures: the demands of their followers and the expectations of the executive that must approve their appointment. See Laurence, op. cit. p. 75, and Daily Dispatch, 21 08 1976.Google Scholar The rôle demanded of the chiefs under the constitution differs radically from their traditional rôle as ‘constitutional monarchs’ – Hammond-Tooke, W. D., Command or Consensus: the development of Transkeian local government (Cape Town, 1975)Google Scholar, passim. Whether the chiefs will be inclined or able to block modernisation programmes is unclear.

page 214 note 1 See Dean, op. cit. passim.

page 214 note 2 One careful analyst of legal developments in East Africa has pointed out that since independence, though the number of administrative agencies has increased, the amount of judicial control over them has decreased. McAuslan, J. P. W. B., ‘Evolution of Public Law in East Africa’, in Public Law (London), Summer 1970, pp. 167–8.Google Scholar Nor has the record of the courts in controlling the executive through enforcement of constitutional guarantees been more encouraging. See Palley, op. cit. passim.

page 214 note 3 Ghana, Nigeria, Kenya, and Uganda initially attempted to develop a modified federalism with regional counterweights to the centres of governmental powers. These approaches were early casualties in the processes of post-independence constitutional revision. See Harvey, op. cit. pp. 133–51; also Nwabueze, , Constitutionalism in the Emergent States, pp. 111–38Google Scholar, and Presidentialism in Commonwealth Africa (London, 1974), pp. 138–59.Google Scholar

page 214 note 4 We believe the only surviving constitutional Bills of Rights in the new African states – other than in newly independent Bophuthatswana – are those of Kenya, Botswana, and Zambia.

page 214 note 5 Transkei Constitution, section 75.

page 215 note 1 For an analysis of the extent of Transkei's economic dependence on South Africa on the eve of independence, see Laurence, op. cit pp. 125ff. Specific provision for continuing economic support is made in the South African Financial Arrangements with Transkei Act, No. 106 of 1976.

page 215 note 2 The South African Government Gazette, Vol. 136, No. 5320, Gazette No. 2384, 22 10 1976Google Scholar, lists 39 agreements between the Governments of South Africa and Transkei providing for a variety of services to continue from the former to the latter. The agreements involve, inter alia, aid in the fields of agriculture, economic development and education, defence, finance, forestry, health, libraries, registration of voters, mining, broadcasting, and post-telecommunication services.

page 216 note 1 In terms of the factors listed, Transkei compares favourably with countries such as Chad, Niger, Mali, Botswana, or Lesotho.

page 216 note 2 In 1969 Sir de Villiers Graaf, then leader of the opposition United Party, presented a report on the over-crowding of the Homelands. Using projections based on 1968 population figures, he concluded that by the year 2000 there would be 28 million ‘Bantu’ and 7 million whites. Africa Research Bulletin (Exeter), VI, 2, 1969, p. 1323.Google Scholar

page 216 note 3 Only Transkei approaches being a unified territory and it comprises three separate parcels. Originally the Homelands were composed of 100 discrete areas; the number has been reduced slowly so that by 1975 it was down to 36. Ibid, XII, 3, 1975, p. 3559.

page 217 note 1 Although obviously hesitant and suspicious of the real intentions of the South African Government, Chief Mangope led Bophuthatswana to independence on 6 December 1977, after long and arduous negotiations aimed at securing clarification of, and improvement in, the conditions of those citizens of the new state who are permanently resident in South Africa. The Status of Bophuthatswana Act, No. 89 of 1977, is very similar to the Status of the Transkei Act, but the constitution of the new state differs radically from that of Transkei, notably as regards incorporation of a judiciable bill of rights. Legislation enacted in the 1978 session of the South African Parliament makes it clear that the concessions negotiated by Chief Mangope will primarily take the form of exemptions granted by the relevant Minister which can be withdrawn by him at any time – see, for example, section 5 of the Bantu Laws Amendment Act, No. 12 of 1978. The 1970 legislation has been amended by the Bantu Homelands Citizenship Act, No. 13 of 1978, to allow a citizen of any independent Homeland in certain circumstances to apply for South African citizenship.

Despite the acceptance of independence, the Preamble to the Republic of Bophuthatswana Constitution Bill expressly includes a recital that ‘Almighty God … has determined that our people should dwell on this southern part of the African continent where we shall always seek our future destiny in closer constitutional and political unity with other peoples and governments’.

page 217 note 2 Africa Research Bulletin, XIII, 8, 1976, p. 4126. In the face of such attitudes among the majority of Homeland leaders, the South African Government introduced legislation in the 1977 session of Parliament to confer fuller powers on those Homelands that do not opt for independence; see the Bantu Homelands Constitution (Amendment) Bill, B. 91–1977. According to The Cape Times, 15 March 1978, and The Argus, 16 March 1978, the Government appears to be retreating on this policy. The Minister of Plural Relations (formerly Bantu Administration) and Development has announced that his Department will not proceed with the Bill, and that ‘depending on how many Homelands are not independent, the whole situation will have to be considered and a new dispensation worked out’.

page 219 note 1 It may be suggested that the Transkei Government's assertion of the principle of self-determination in support of its claim to recognition is compromised by the relatively modest consultation of the people within Transkei as the arrangements for independence progressed, and the total absence of such consultation with the large group of Transkeian ‘citizens’ resident in South Africa. Other compromising data include the use of security legislation to impede and distort the internal political process, and the evidence of strong opposition to accepting independence among the Xhosa and Sotho peoples in the Republic. If this indictment of Transkei's claim to self-determination should be required in turn to validate itself on principle, we doubt that international practice can be subsumed by the proposition that no state is entitled to recognition unless its constitutional arrangements can demonstrate their democratic legitimation.

page 220 note 1 Early manifestations of some independence of Transkeian policy may be noted. For example, the Government has announced its intention to terminate, presumably without delay, the services of South African officers in the Transkei police and defence force. In addition, some of the racist legislation continued in force has been repealed. The significance of Transkei's severance of diplomatic relations with South Africa, announced in April 1978, cannot yet be assessed.