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We, the People: Insights Of An Activist Judge
A stirring collection of public talks and essays by an activist and former judge offers an intimate insider’s view of South Africa’s Constitution. This stirring collection of essays and talks by activist and former judge Albie Sachs is the culmination of more than 25 years of thought about constitution-making and non-racialism. Following the Constitutional Court's landmark Nkandla ruling in March 2016, it serves as a powerful reminder of the tenets of the Constitution, the rule of law and the continuous struggle to uphold democratic rights and freedoms. We, the People offers an intimate insider's view of South Africa's Constitution by a writer who has been deeply entrenched in its historical journey from the depths of apartheid right up to the politically contested present. As a second-year law student at the University of Cape Town, Sachs took part in the Defiance Campaign and went on to attend the Congress of the People in Kliptown, where the Freedom Charter was adopted in 1955. Three decades later, shortly after the bomb attack in Maputo that cost him his arm and the sight in one eye, he was called on by the Constitutional Committee of the African National Congress to co-draft (with Kader Asmal) the first outline of a Bill of Rights for a new democratic South Africa. In 1994, he was appointed by Nelson Mandela to the Constitutional Court, where he served as a judge until 2009. We, the People contains some of Sachs' most memorable public talks and writings, in which he takes us back to the broad-based popular foundations of the Constitution in the Freedom Charter. He picks up on Oliver Tambo's original vision of a non-racial future for South Africa, rather than one based on institutionalised power-sharing between the races. He explores the tension between perfectability and corruptibility, hope and mistrust, which lies at the centre of all constitutions. Sachs discusses the enforcement of social and economic rights, and contemplates the building of the Constitutional Court in the heart of the Old Fort Prison as a mechanism for reconciling the past and the future. Subjective experience and objective analysis interact powerfully in a personalised narrative that reasserts the value of constitutionality not just for South Africans, but for people striving to advance human dignity, equality and freedom across the world today.
280 pages, Kindle Edition
Published November 1, 2016
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About the author
Albie Sachs
42 books18 followersAlbert "Albie" Louis Sachs is a former judge of the Constitutional Court of South Africa. He was appointed by Nelson Mandela in 1994 and retired in October 2009. Justice Sachs gained international attention in 2005 as the author of the Court's holding in the case of Minister of Home Affairs v Fourie, in which the Court overthrew South Africa's statute defining marriage as between one man and one woman, finding this to be a violation of the Constitution's general mandate for equal protection for all and its specific mandate against discrimination on the basis of sexual orientation.
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May 18, 2020
When Albie Sachs writes a book about the drafting and implementation of the South African Constitution, you know that you are going to get a thoughtful and insightful account told from the centre of the storm.
And it was a storm. When Oliver Tambo asked people within the ANC to start thinking about the constitution for an apartheid-free country, the ANC was still illegal in South Africa, and was engaged in an armed struggle for the liberation of its country. Oliver Tambo wanted the ANC to think about how its core values would translate into the rules by which the country would be governed. This, in itself, was not to be an easy task.
Events however did not wait for careful consideration of a new constitution. The apartheid army was defeated in battle in Angola at Cuito Cuanavale. The country was ungovernable because of mass action. The apartheid state was facing bankruptcy. President De Klerk was forced into uncharted waters. He had to unban the ANC and other anti-apartheid organisations. He had to release Nelson Mandela. The negotiations for a democratic state based on the idea of non-racialism began. It was not a peaceful process. 10,000 people died in the low-intensity war that followed. With There was an attempt to embed group rights, based on ethnicity, into the Constitution. There were battles over the language and languages to be used. There were battles over preventing particular groups from being on the receiving end of discrimination. This was the crucible in which the constitution had to be forged. Then there were to be the arguments over the interpretation of the constitution, some of which have continued to this day.
One of the first cases to come to the Constitutional Court was that of a publicly-funded school in Gauteng (or PWV as it was then) that was refusing to admit black pupils because the language of education was Afrikaans, and only Afrikaans. What had to be decided was the balance between linguistic rights and the right to an education. The court found that, as the pupils would be deprived of an education if the school did not admit them, that the balance of the constitution was in favour of the pupils. At the time, many people thought that it was a blatant attempt by the school to preserve its whites-only status, but this was not the issue. There were two rights enshrined in the constitution, and the issue was proportionality within the context of the building of a new and apartheid-free society.
Another case concerned the constitutional right of a patient to dialysis, when the doctors had diagnosed his renal failure as so complete that he had no hope of recovery, that he was going to die even if he had the treatment. The medical argument was that giving him dialysis would involve depriving someone else (unknown) of access to life-saving treatment. The Constitutional Court took the view that the doctors were right, and that giving the complainant access to dialysis could deprive another person of access to life-saving treatment, resulting in the death of that person. This was not an easy decision. It was literally life and death. The life of an unknown person who could be treated had to be balanced against the life of the person in front of the court who would die regardless of the treatment.
The problem is the Constitutional Court is a simple one. It can only deal with the cases that are brought before it. For instance, it did not deal with the case that Big Pharma brought against the use of generic drugs to treat HIV and AIDs, simply because the pharmaceutical companies took the case to the World Trade Organisation instead (where they lost). The Constitutional Court cannot decide to be involved in a case. It has to be asked.
One of the problems facing the new South Africa, where the Constitutional Court did not have any jurisdiction, was reconciliation. President Mandela made this the central plank of his new administration, most dramatically by the wearing of a Springbok shirt at the Rugby World Cup. More importantly, he set up the Truth and Reconciliation Commission (TRC), so that people could find out what had happened to their relatives, to express their grief and to seek dignity and recognition of what they had been through by telling their stories in their own languages. Albie Sachs is quite clear that the TRC did not offer justice. It was an arena for the truth to be told.
He talks about four kinds of truth: experiential, logical, microscopic and dialogical. It is at the least that I stumble. Dialogical truth requires a dialogue. There is a section of South African society, mainly but not entirely white that does not want a dialogue. These are the people who regard the 1994 settlement as a betrayal. To be blunt, they reject the South African Constitution because it is one of the most progressive in the world. They reject those values. They find them inimical.
The role of the Constitutional Court, however, is quite clear. It is to interpret the meaning of the constitution within the context of law. It is to look at the balance where there is a clash between one constitutional right and another, and it is to make decisions about what the constitution means in particular and specific circumstances.
This is a thoughtful book. It does not offer easy answers, but it does give the hope that such answers will be found in the context of the new South Africa.
And it was a storm. When Oliver Tambo asked people within the ANC to start thinking about the constitution for an apartheid-free country, the ANC was still illegal in South Africa, and was engaged in an armed struggle for the liberation of its country. Oliver Tambo wanted the ANC to think about how its core values would translate into the rules by which the country would be governed. This, in itself, was not to be an easy task.
Events however did not wait for careful consideration of a new constitution. The apartheid army was defeated in battle in Angola at Cuito Cuanavale. The country was ungovernable because of mass action. The apartheid state was facing bankruptcy. President De Klerk was forced into uncharted waters. He had to unban the ANC and other anti-apartheid organisations. He had to release Nelson Mandela. The negotiations for a democratic state based on the idea of non-racialism began. It was not a peaceful process. 10,000 people died in the low-intensity war that followed. With There was an attempt to embed group rights, based on ethnicity, into the Constitution. There were battles over the language and languages to be used. There were battles over preventing particular groups from being on the receiving end of discrimination. This was the crucible in which the constitution had to be forged. Then there were to be the arguments over the interpretation of the constitution, some of which have continued to this day.
One of the first cases to come to the Constitutional Court was that of a publicly-funded school in Gauteng (or PWV as it was then) that was refusing to admit black pupils because the language of education was Afrikaans, and only Afrikaans. What had to be decided was the balance between linguistic rights and the right to an education. The court found that, as the pupils would be deprived of an education if the school did not admit them, that the balance of the constitution was in favour of the pupils. At the time, many people thought that it was a blatant attempt by the school to preserve its whites-only status, but this was not the issue. There were two rights enshrined in the constitution, and the issue was proportionality within the context of the building of a new and apartheid-free society.
Another case concerned the constitutional right of a patient to dialysis, when the doctors had diagnosed his renal failure as so complete that he had no hope of recovery, that he was going to die even if he had the treatment. The medical argument was that giving him dialysis would involve depriving someone else (unknown) of access to life-saving treatment. The Constitutional Court took the view that the doctors were right, and that giving the complainant access to dialysis could deprive another person of access to life-saving treatment, resulting in the death of that person. This was not an easy decision. It was literally life and death. The life of an unknown person who could be treated had to be balanced against the life of the person in front of the court who would die regardless of the treatment.
The problem is the Constitutional Court is a simple one. It can only deal with the cases that are brought before it. For instance, it did not deal with the case that Big Pharma brought against the use of generic drugs to treat HIV and AIDs, simply because the pharmaceutical companies took the case to the World Trade Organisation instead (where they lost). The Constitutional Court cannot decide to be involved in a case. It has to be asked.
One of the problems facing the new South Africa, where the Constitutional Court did not have any jurisdiction, was reconciliation. President Mandela made this the central plank of his new administration, most dramatically by the wearing of a Springbok shirt at the Rugby World Cup. More importantly, he set up the Truth and Reconciliation Commission (TRC), so that people could find out what had happened to their relatives, to express their grief and to seek dignity and recognition of what they had been through by telling their stories in their own languages. Albie Sachs is quite clear that the TRC did not offer justice. It was an arena for the truth to be told.
He talks about four kinds of truth: experiential, logical, microscopic and dialogical. It is at the least that I stumble. Dialogical truth requires a dialogue. There is a section of South African society, mainly but not entirely white that does not want a dialogue. These are the people who regard the 1994 settlement as a betrayal. To be blunt, they reject the South African Constitution because it is one of the most progressive in the world. They reject those values. They find them inimical.
The role of the Constitutional Court, however, is quite clear. It is to interpret the meaning of the constitution within the context of law. It is to look at the balance where there is a clash between one constitutional right and another, and it is to make decisions about what the constitution means in particular and specific circumstances.
This is a thoughtful book. It does not offer easy answers, but it does give the hope that such answers will be found in the context of the new South Africa.
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