We, the People. Albie Sachs
this amazing Constitution! And twenty years afterwards we can have the open, free debate that we’re having in this City Hall Chamber.
The democracy we take for granted emerged in a situation where nobody in the world felt South Africa stood a chance. A racial bloodbath was seen as the inevitable outcome. It’s not only that we avoided catastrophe, we established a strongly implanted Constitution with institutions, mechanisms, principles and values that enable us today to deal openly and robustly with the many, many things that concern us and worry us and ravage us. We do so with the knowledge that we’ve got the vote, we’ve got free speech, we’ve got an independent judiciary, we have strong political parties, open contestation. We take the openness of our society for granted. It’s great we take it for granted, and it’s sad we take it for granted. Great because it’s normal, that’s the country we’re living in; and a little bit sad because we don’t give ourselves credit for our enduring achievements.
We beat ourselves up too easily, I believe, too quickly, because many things are happening that many of us are very, very distressed about. But that should be a reason for using the democratic rights we have won to bring about the changes we desire, rather than to descend into despair and, at times, self-flagellation.
Once the issue of directly constitutionalising group rights in our institutions had been taken off the agenda, then issues of how to respect and balance out different community, traditional and cultural interests could come to the fore. This they could now do in their own right, and not as proxies for political and economic power. Problems of race, gender, disability, sexual orientation and so on, are ubiquitous and are dealt with by the equality provisions of the Bill of Rights. Similarly, unfair discrimination on the basis of language, culture and religion is prohibited.
The Original ‘Pinch-me’ Moment
LAUNCH OF THE KADER ASMAL HUMAN RIGHTS AWARD | UNIVERSITY OF THE WESTERN CAPE | CAPE TOWN | 28 MAY 2013
Sitting at that kitchen table in rainy Dublin in 1988, Kader Asmal and I began the task of preparing the Bill of Rights – I’d actually imagined, that it was a wooden table, in my head it became a wooden table, but apparently it wasn’t, it had a plastic-covered top. The Constitutional Committee, prompted by Oliver Tambo, had said, ‘just draft an outline’ – that was our mandate – ‘of the fundamental themes that a Bill of Rights in the new South Africa ought to have’.
I recall we divided up the work – I would do the material side and Kader would deal with the enforcement, and then we would swop. I sat down at that table with a clean piece of paper – no books, no documents, no charters, no constitutions, no preambles – the idea being that a Bill of Rights should speak from inside of you, it should proclaim itself.
It’s something human beings are entitled to. Something so fundamental; so central to what human beings are, and what they want, and what they strive for, that it shouldn’t be derived from anything: it should just emerge. And particularly those of us who’d spent decades swimming, immersed in that environment, the phrases should come out. And I was writing with my left hand – I had to learn to write with my left – and I jotted down a number of fundamental rights that the people of South Africa would have. And afterwards, we checked; Kader went through it, he made some textual changes, and we checked it against the great instruments of the world, and all the fundamental rights were there.
It wasn’t because we were particularly clever or astute. It was because we’d been so deeply immersed and involved in a struggle, with millions of people taking part, and expressing their demands, that we were able to find the language. And have that first ‘pinch-me’ moment: ‘Is this really happening? Is it really true?’ And we were to have many, many more …
TWO
Hope and Caution in Exile
The First and Last Word – Freedom
SOUTH AFRICAN CONSTITUTIONAL STUDIES CENTRE | INSTITUTE OF COMMONWEALTH STUDIES | LONDON | 1990
We give the first and last word to freedom, yet we do not know what it is.
This is the central irony of the deep and passionate struggle in South Africa – that it is for something that exists only in relation to what it seeks to eliminate. We know what oppression is. We experience it, define it, we know its elements, take steps against it. All we can say about freedom is that it is the absence of oppression. We define freedom in terms of the measures we need to take to keep its enemy, tyranny, at bay. Tyranny is the negative indicator of freedom; freedom is what apartheid is not.
When the call went up in the 1950s, ‘freedom in our lifetime’, it signified the end of something very specific – colonial domination in Africa and apartheid tyranny in South Africa. The Freedom Charter, adopted in 1955, was conceived of as the reverse of apartheid. A product of struggle rather than of contemplation, it sought in each and every one of its articles to controvert the reality of oppression the people were undergoing. Its ten sections were based on the demands that a suffering people sent in, not on any ideal scheme created by legal philosophers of what a free South Africa should look like.
Any new constitution in South Africa must be first and foremost an anti-apartheid constitution. The great majority of the people will measure their newly won freedom in terms of the extent to which they feel that the arbitrary and cruel laws and practices of apartheid have been removed.
Freedom is not some state of exaltation, a condition of instinctive anarchy and joy; it is not sudden and permanent happiness. In fact, some of the freest countries have the most melancholy and stressed people.
Freedom is indivisible and universal, but it also has its specific moments and particular modes. In South Africa the mode of freedom is anti-racist, and anti all the mechanisms and institutions that kept the system of racism and national oppression in place. Yet the Constitution has to be for all South Africans, former oppressors and oppressed alike. It expresses the sovereignty of the whole nation, not just part, not even just the vast majority. If it is to be binding on all, it should speak on behalf of all and give its protection to all.
The elimination of apartheid does not by itself guarantee freedom – even for the formerly oppressed.
History records many examples of freedom fighters of one generation becoming oppressors of the next.
Sometimes the very qualities of determination, which give freedom fighters the courage to raise the banner of liberty in the face of barbarous repression, transmute themselves into sources of authoritarianism and forced marches later on. On other occasions, the habits of clandestinity and mistrust, of tight discipline and centralised control, without which the freedom-fighting nucleus would have been wiped out, continue with dire results into the new society. More profoundly, the forms of organisation and guiding principles that triumphed in insurrectionary moments, on long marches, in high mountains, that solved problems in liberated zones, might simply not be appropriate for whole peoples and whole countries in conditions of peace.
These reflections have led some people into arguing for inaction against apartheid because of their concern that removing one tyranny might lead to its replacement by another. From a moral point of view, it seems most dubious to refrain from dealing with an actual and manifest evil because of anxiety that its elimination might lead to the appearance of another evil. Sufficient unto the day is the evil thereof.
The best time for fighting for freedom is always now, and the best starting point is always here.
The standpoint, the question of guarantees of freedom for all, is an important one that needs to be confronted now. It has a bearing on the character of the Constitution and the process whereby the new Constitution is to be brought about. There can, of course, never be absolute guarantees in history. What we do know for sure is that attempting to defend minority privileges by force of arms, whether through the present system, or by means of a constitution based on group rights, can only result in continuing strife and violation of human rights. The only system that has a chance is one based on non-racial democracy. What