We, the People. Albie Sachs
are anxious to empower a new government to undo the damage of past governments and to undertake the responsibilities of all governments everywhere in the world to respond to the needs of citizens.
At the same time, we must ensure that the new government functions well and fairly, that it does not become a new source of oppression, alienation and abuse. Oppression can come under any slogans, in any colours, and with any anthem.
No one, neither king nor freedom fighter, has any divine right to rule. No one is automatically immune to the seductions of power.
Good leaders are conscious of this and struggle for good constitutions, aware of their own fallibility.
The biggest contribution our generation can make will be to provide an enduring link between our past aspirations for freedom and the lived reality of future liberty.
The Constitution should be a glittering shield in which we all see our faces reflected. It is our constitution, for everyone, protector of the weak as well as of the powerful, of the former oppressed and of the former oppressors. It lays down the fundamental terms on which we all live together as equals and compatriots in the same country. It is the document which establishes that everyone matters, everybody counts, that no one is born worthless, or to be the slave or instrument of another.
In South African conditions, a non-racial, non-sexist, democratic constitution is the ultimate antithesis of apartheid, the embodiment of universal sovereignty and the epitome of the equal worth of each one of us. This is so independently of how we look, what language we speak, or where our ancestors came from.
A constitution is therefore not a deal worked out between new victors and new losers about how to share the spoils of office. It is the fulfilment of an historic dream of the oppressed for irreversible deliverance from injustice; it is the reaching out for firm principles that will protect us all from mutual abuse and fratricide in the future; it is the declaration of a set of shared core values that will bind us together because we believe in them and not because they are imposed; it is the means for enabling us to pursue our different interests without knocking each other down, and to resolve our competing claims in a fair and nondestructive manner.
In preparing for the drafting of the terms of our new constitution, we try to involve the widest sections of the population. As Namibia showed, the process of constitution-making can bring out the best in a people and encourage a sense of shared nationhood based upon an acceptance of common values.
A constitution is not a product to be sold to the people through skilful advertising. It is something that emerges from our innards, that expresses our highest idealism while protecting us from our basest temptations.
For those of us working for human rights in South Africa, the idea of constitutionalism is something new. Our legal tradition, taken from Britain, is one of parliamentary sovereignty. Accordingly, the essence of our struggle has been for the right to be represented on an equal basis in parliament. We fought for the vote, not for a Bill of Rights. Now we recognise the advantages of a Bill of Rights as a means of providing the framework of core values within which parliament operates.
We regard the Constitution as an agreed compact enabling people to live together in a context of secure equality. A Bill of Rights guaranteeing fundamental freedoms for individuals does away with the necessity for special group rights, which, in the circumstances of a country emerging from more than a century of explicit racial domination, would inevitably mean protection of group privileges. We need to ensure that democracy and the Bill of Rights work, and not to seek bizarre constitutional mechanisms to make the whites more equal than anyone else.
If we draw on global principles of human rights we do so not to prove that we can read the documents, or that we are civilised, but because they really speak to and for all of us.
Each freedom struggle is unique, yet the basic human experience of suffering and resistance is the same. Just as there is terrible internationalism in torture and means of mass humiliation and destruction, so we can universalise the organised forces of hope and human goodness.
FOUR
Inventing a Constitution
South Africa’s Unconstitutional Constitution: The transition from power to lawful power
SAINT LOUIS UNIVERSITY LAW JOURNAL | VOLUME 41, FALL | 1997
About one month ago, the Constitutional Court of South Africa declared the Constitution of South Africa to be unconstitutional, which I think is a unique jurisprudential and political event in the world. I want to explain how this unusual thing came to pass.
We go back to 1990. We had to shift our country, which at that time was the epitome of division, repression, and injustice – a point of negative reference for anybody who wanted to condemn anything in the world. It was a country that introduced the word ‘apartheid’ to the English language and international human rights discourse. It was a country that sent death squads across its borders to hurt and torture people to death and that had an organised system of repression that extended into every village and into every nook and cranny of society. It was a country that was racist, authoritarian, and narrow.
Whereas before, we had the hour of the politician and the hour of the soldier, now we had the hour of the lawyer. This was our big moment. And for some things you really only have one chance; for us it was this moment – quite a long moment – and we had to make the best of it.
This very harsh, racist South Africa had to be converted into a country – with the same people, the same physical terrain, the same resources, and the same buildings – into a country that was democratic and respected human rights. It had to be a country where people of widely different backgrounds would respect each other, where everybody would live in dignity, and where social peace prevailed. This was a not a small task. Just through language you can trace the whole constitutional parabola that followed as we made the best of it. In those days, we used to speak about ‘the enemy’, later ‘the enemy’ became ‘the regime’, then ‘the regime’ became ‘the other side’, and now ‘the other side’ is simply ‘the opposition’.
At that same time, people like my comrade and later my colleague, Pius Langa, now Justice Langa [Langa served as deputy chief justice of the Constitutional Court from 2001 to 2005 and as chief justice from 2005 to 2009], were working, within the little space that the South African regime allowed, to bring progressive lawyers of all backgrounds together, not only to critique and challenge the apartheid legal order, but to envisage how law would work and how justice would be served in the new South Africa. All of us in our separate spheres were creating the germs of the constitutional order – in the lives, in the hearts and in the imaginations of countless individual people, so that it would not just be an abstraction when it came, but something already rooted, embryonic and growing.
The importance of a constitutional order was precisely to establish the appropriate relation between organised hope on the one hand, and structured caution on the other. These reflections were based on our life experiences, not on books or classroom lessons, or even talks like this one. We learned these things thinking about the heroism of the people around us, and also their setbacks and betrayals, and by looking at the inspiring emergence of new nations throughout the world, and seeing the difficulties they inherited as well as those they brought upon themselves.
While we were having these debates, Nelson Mandela, who first went to prison in 1962, was in contact with the South African regime, determined to initiate negotiations.
Leaping forward in time to the end of year 1991, I’m wearing this suit, which is the suit I wear for important occasions. I’m in the World Trade Centre outside Johannesburg, slightly different from the New York World Trade Centre – a real dump of a place, in fact, with gloomy, stale air and passionless carpets. I am in a space as big as this courtroom and across the way are other people in suits, perhaps more accustomed to wearing suits than I am. They are now the enemy/regime/South African government and perhaps they feel as strange looking at me as I feel when I look at them. These people had not even been on the scene when I went