A new collection of legal and autobiographical writings by former Constitutional Court judge, Albie Sachs, offers an intimate insider’s view of South Africa’s Constitution. Sachs, who lost his arm and his sight in one eye in a bomb attack by the apartheid regime in Maputo, was appointed by Nelson Mandela to the Constitutional Court in 1994. This is an edited extract from the book.
I will answer the question of whether the sacrifices made in the struggle to liberate South Africa from apartheid are being honoured or disregarded by the country we have created. But before doing so I believe it is necessary to dispel three myths about the constitution-making process. By distorting our history, these myths make it difficult to make a correct appreciation of where we stand now.
The first myth is that the wonderful Nelson Mandela, leading the ANC, and the wise FW de Klerk, at the helm of the National Party, put their heads together and plucked the miracle of a new nonracial democratic constitution out of a hat. How wrong and misleading!
Though they both undoubtedly played an important role in keeping their respective sides steady, their personal chemistry was bad and their involvement individually in the actual drafting of the document very limited. In reality, literally hundreds of people participated in a protracted, procedurally complex and unusually creative process that endured for more than six years.
To say this is not to belittle the importance of the broad political leadership displayed respectively by Mandela and De Klerk. It is to emphasise that we should not be longing for a new Mandela-like figure to lead us miraculously out of our problems. As before, what is needed is an immense amount of hard work and a huge amount of hard talking by hundreds and thousands of people.
The second myth is that National Party and ANC elites cynically did a sweetheart deal to ensure that both would end up in office, without in any way disturbing existing property relations. Thus, Mandela has been accused by some within his organisation of having been too nice to the whites, while De Klerk has correspondingly been charged by conservative Afrikaners with having rolled over to please the ANC. The reality just wasn’t like that at all.
The constitution-making process was rough. Everything was contested. There were breakdowns, rolling mass action, massacres. We fought over process, how parties should be represented, how decisions should be taken. We fought over substance: whether there should be a white veto, a government of national unity, about provincial powers, the army, the police, local government, the Constitutional Court, and customary law, not to speak of gender equality, gay rights, capital punishment and single-medium schools.
The hottest issue, the one in the Bill of Rights over which we fought the longest, was the property clause. The Constitutional Court has frequently held that our Constitution requires property law in our country to be interpreted on the basis that there has been massive and unjust dispossession of people from land, that restitution is constitutionally required and that land reform and upgrading of precarious tenure have to be facilitated. At the same time, and not losing sight of these principles, the Constitution insists that redistribution should not be done in an arbitrary fashion.
The third myth that needs to be dispelled is the assertion, beloved by many commentators, that at the time of the achievement of democracy and the first democratic elections, there was a halcyon period of public peace and euphoria in South Africa, as contrasted with the confusion, and dissatisfaction and disillusion of today. The fact is that more people died in the low-grade civil war in KwaZulu-Natal in the four years preceding the first elections, than in all the political violence of the rest of the 20th century.
Moreover, the conflict between so-called ANC and AZAPO (Azanian People’s Organisation) Self-Defence Units was deadly, as was that between different forces in the former Bophuthatswana bantustan.
ANC and Communist leader Chris Hani was murdered by white rightwingers. The country almost erupted then. The massacre in St James Church – in which members of the Pan-Africanist Congress’s military wing killed 11 worshippers and injured 58 – shook us all in Cape Town, and we had the daily shock of scores of people being thrown to their deaths off trains in various parts of the country.
Even during those first wonderful elections, bombs went off claiming many lives. And after 1994, the Government of National Unity – led by the ANC, and including members of the National Party and the Inkatha Freedom Party – foundered, and De Klerk pulled his team out in 1998, while the media were filled with complaints about “the gravy train” and the multibillion dollar South African Strategic Defence Procurement Package, better known as “the Arms Deal”.
Dealing with the current challenges
In dealing with the serious challenges we now face, we need the same courage and determination we had in the days of the struggle. But the energy has got to be different. We need fewer shrill, self-serving polemics and greater civility towards each other, as well as more openness on the side of ourselves, the former freedom fighters, to the many challenging and even disconcerting ideas coming from others.
What worries me now is that millions of people who are doing the hard work of keeping the country going are so preoccupied with their day-to-day concerns that very little of an overall vision comes out from them. At the same time, people who project beautiful visions don’t seem to be doing any of the hard work needed to solve the actual problems of our society.
Reflecting on the differences between our country then and our country now, I find myself coming to the emphatic but not unqualified answer that the sacrifices were NOT in vain.
So, we might not have anything like the jobs, housing, health and education that we want. Tentacles of corruption have spread. But we do have our freedom. People speak out, and they protest. We are not a scared society. We are not downtrodden. We know about injustices because people are speaking about them in their own voice, inside and outside political parties, through NGOs, in the courts, outside of the courts, in the press.
Our elections are free and fair. The average term of office of our first three presidents has been five years.
It is good and bad that we take these aspects of our democracy for granted. It is good that they have become so normal that they are now part of our everyday culture. It is bad that we forget the significance of our achievements, and the difficulties we overcame to realise them. It didn’t just happen. We remade our country. It’s another country, and even with all its imperfections, a hugely better one.
The Constitution isn’t to blame
If government hasn’t done as much as it could have done, that’s a valid point. But we can’t put the blame on the Constitution. And we should be very wary of tinkering with it. Some of the structural details can perhaps be changed – we have, for example, already altered provincial boundaries and banned floor-crossing, stopping the process of elected politicians changing their political parties.
The Constitution is South Africa’s greatest tribute to the people who died in the struggle for liberation. It’s a beautifully crafted document, referred to with enormous admiration throughout the world. And, it’s ours. We made it; we wrote it; and we are applying it today.
The inequalities that continue in our society are intolerable. And the failures of public morality are totally, totally unacceptable. But for all that, our accomplishments have been of historic proportions.
If you are waiting for the beautiful people, or even a beautiful leader in South Africa, it won’t happen. It’s always got to be us and the people like us and our neighbours and our parents and our children and grandchildren. And it’s us with all our limitations and ambitions and pettiness and greed and impatience, and all our perfectibility and corruptibility. The same us who brought about the downfall of apartheid. It’s that same us, and maybe the children of us, and even the grandchildren of us, who now have to create that more beautiful society that we long for and still have to achieve.
From “We, the People: Insights of an Activist Judge” (Wits University Press)