Albie Sachs: It was in a room maybe a quarter of the size of this hall, 1995, February the fourteenth, jam packed with people, that Nelson Mandela stood up and said, “The last time I got to my feet in court was to find out if I was going to be hanged. Today I rise to inaugurate South Africa’s First Constitutional Court.” And I was one of the eleven judges sitting at the back about to be sworn in as a judge of that court. I chose to speak about Nelson Mandela at the time when I was asked what should I speak about. He had been to hospital. The prognosis wasn’t all that brilliant, and that was the theme that came to mind. With that stubbornness that he’s got — he has defied all the expectations, the obituary writers. He is still hanging in there, and I am still going to speak about Nelson Mandela.
We all felt exulted. South Africa — the land of apartheid, of division, of racism enshrined in the very constitution, in the laws, in the signs. South Africa is now going to have a Constitutional Court with a Bill of Rights protecting the most basic fundamental rights for all human beings on a completely nonracial basis and a nonsexist basis as well. And, we were going to be the guardians of that Constitution. And it was Nelson Mandela who was presiding over the ceremony. And he’d appointed us after quite a lengthy process involving many other agencies. We felt terrific. We felt especially — a special glow because he was the one at the center of that whole ceremony. And how did we show our appreciation for Nelson Mandela? Six months later we struck down as invalid and unconstitutional two important proclamations that he had issued. Now that is gratitude for you. And they were important proclamations that dealt with the first democratic local government elections in South Africa. There was nothing wrong with their substance. Some of you might remember having seen for the first time we all voted as equals in the national elections when everybody, virtually everybody, even our closest friends were predicting a racial blood bath in South Africa and there we were lining up for hours and hours and hours — one old man even being brought in a wheelbarrow. He couldn’t walk and he was now on the transport to vote so that he could vote before he died, peacefully. But what about local government — where people live — local government that affects people — some in many respects even more directly and importantly than the national legislation does. And we needed to have a structure for local, democratic local government elections. There wasn’t much time and parliament entrusted Nelson Mandela as the president of the country with the task of issuing proclamations that would lay down the foundations for free and fair local government elections. The structuring, the organization, the poll, the secrecy, the protections against intimidation — all of that in the financing in that legislation — was challenged by members of the opposition party to the ANC, by people in the Western Cape province which is like your states here challenging the central government. And what did we ungrateful people on the court do? We upheld the challenge. Not because there was anything antidemocratic in the substance of the proclamations but because Parliament had asked the President to do something that Parliament itself should do. Do you get it? Parliament is entrusted by the Constitution with the task of introducing legislation in South Africa for the good governance of the country and Parliament cannot hand over to the head of the executive that primary task. Parliament can pass a law and tell the Executive, “you fill in the details of implementation,” but Parliament cannot itself abdicate its legislative responsibility and entrust it to the President. And we said no. And that is not bad for a six-month old court. The separation of powers with three branches of government — the legislature, the executive, the judiciary — we knocked down both the legislature and the judiciary with one swipe. How did Nelson Mandela react? I am going to leave that to the end of my presentation. If I say thank you and I haven’t said it, just put up your hands and remind me.
So that is 1994. Go back to almost the pre-color television period, 1952. I’m a 17-year-old second year law student and I am about to lead a little group, four of us, young white people, it was towards the end of the year in which nearly ten thousands black people had voluntarily defied the unjust laws. They had set on railway carriages marked “whites only,” they traveled in buses on seats marked “whites only,” they had entered what you call locations reserved for particular groups without the proper documents. They had been out on the street after curfew hour and said, “Arrest me.” And we were this small group of whites who wanted to be identified with participating in the struggle of our people for freedom in our country. And we sat down on seats marked “nonwhites only” in the general post office in Cape Town and we were told to be nonviolent, nonviolent, nonviolent. To resist any provocation there might be, follow the example of the volunteer in chief. And who is the volunteer in chief — a certain attorney named Nelson Mandela. “Volunteers obey the orders, volunteers obey the orders. Volunteers obey the orders. Be ready for the action now.” We were not going to pick a fight with anybody. But it was particularly relevant that Nelson Mandela was the volunteer in chief. His name wasn’t all that well known in those days but what was significant was that he was an attorney. He was making it up to as far as you could go, that ceiling that you could reach as a black person, qualified as a lawyer. He was subject to all the restrictions that applied automatically to all black people and to African people, people of indigenous African descent in particular. But nevertheless he had prestige in the community. He could earn a fair amount of money. He could talk politics. And he was going to go to jail. Going to jail was something until then that was for the workers, for the ordinary people, not for the intellectuals who were making it. A colleague of mine, Ruth First, spoke about the ANC in those days as an annual conference where people would get together, pass resolutions denouncing apartheid until the next year came along and they would pass more resolutions and decide who would be the president. And that was what the elite felt their role was to be: intermediaries between the majority of people and the white rulers. And now there was a complete change. Now it wasn’t a question of being an intermediary between the white rulers. Now it was a question of standing with your people and defying the unjust laws and demanding full equality for everybody is South Africa, and they had to set the example — they had to be the first willing to go to jail rather than simply the lawyers defending the people going to jail. It was so significant that Mandela was willing to do that because it represented a complete change, not only in strategy involving millions of people, now ultimately that was the objective, but also a fusion of all the people in the community in one very, very powerful force claiming self-determination for the majority of South Africans who had never really had independence. And when independence was granted by Britain, independence was effectively given to whites only. And I was this young law student participating in this huge event, doing my little bit in Cape Town. 1952.
1955, the Freedom Charter was adopted.
1956, Nelson Mandela amongst all the people charged with treason. Treason. Treason because they demanded equality, not because they wanted to set up a dictatorship, but because they wanted to overthrow, challenge, get past, destroy the system of supremacy of 10-15% of the population over the majority and at that stage we said nonviolence. Nonviolence. Nonviolence.
And of all of the accused of the treason trial, just one figure began to emerge. It wasn’t only that I think he was the tallest among the 156, and the best dressed and the most elegant in terms of his posture and style. He just had the language, the ability to dominate a moment. Whoever he was speaking to, whether it was the judges or if he was cross examining the police, whether it was under cross examination, always keeping his cool and answering with composure. He just emerged as the best articulator of what the people were fighting for. Not apologizing. “We want freedom. We want freedom in our lifetime. We are not using violent means to achieve that.” That is what he was saying at that stage. And eventually, eventually after six years they were all finally acquitted. But by the time that had happened, the Sharpeville Massacre had taken place. The ANC had been driven underground, banned. The Pan-African Congress, underground. The Communist Party had been banned for a long time. Newspapers were banned. Individuals were banned. You couldn’t even protest. So you didn’t have any rights, and you couldn’t even protest about the fact that you didn’t have rights. And that was when the decision was taken to go over to armed struggle. Not armed struggle as some kind of military mechanism to seize the territory of the country, but armed struggle as an ingredient of the political struggle involving the great majority of the people always under political control but including an element now where we are saying we cannot restrict ourselves to nonviolent means in South Africa. Our conditions are worse now than they were before. We are not getting the vote. We don‘t have any other access to express our claims to dignity in our country. We are going to fight back. And who was the commander, the Umkhonto we Sizwe, spear of the nation, Nelson Mandela. Again this elegant figure. This great persuasive speaker. This person who believed in rationality and persuasion, saying, “I have to pick up a gun. I have to be with my people. I have to fight like our ancestors fought to defend our land. Now we have to fight to regain our land. But not to regain our land by expelling anybody else but to regain our land so that it will be the country that belongs to everybody who lives here.” He had one last attempt in 1961 where he appealed for a national convention to be called for black and white to talk together to create a new constitution for a new South Africa. The police were after him all the time. He was called the Black Pimpernel. He became even a little more heroic at that stage because he was popping up and disappearing, popping up and disappearing, speaking out, always in these measured tones and the response of the government was a policy of granite. “We don’t concede anything. The whites will rule in the white part of South Africa,” which happened to be 87% of the territory, “and blacks can have their rights in the 13% that is left and in scattered tribal homelands.” The full might of the military was brought out. We saw armored cars going through the streets and planes flying overhead at night, in the day, to just remind us who had power in South Africa. And the first bombs went off towards the end of that year and Nelson Mandela received training. He went out of the country. He received training in Morocco, Algeria and Ethiopia, came back into the country and carried on as long as he could. Sometime during that period, I didn’t know all these different aspects to his life, the last time I was to see him for 27 years was in the underground, it was literally in the underground. We were meeting in a basement in a home in a very posh white suburb. Nelson Mandela walked in, this tall figure, and he had to stoop because the ceiling wasn’t very high, and we were all very, very tense. If we were captured there would be hundreds of years of jail simply for being there, apart from what we were meeting for, and in he came with that serene figure. Somehow he was not going to be perturbed by the circumstances, and that smile stayed with me. When afterwards I had heard he was captured he was put on trial, the Rivonia Trial, they didn’t know if they were going to be hanged. Remember, “The last time I stood up in court was to find out if I was going to be hanged.” And he made his famous, famous, famous speech ending with the words, “I have spent my life fighting against white domination and fighting against black domination. I have spent my life believing in the ideals of equality of all human beings. For these ideals, I have lived my life. For these ideals, I will, if necessary, be prepared to die.” The words “if necessary,” by the way, were put in by his lawyers. They felt, don’t be too cheeky. And that was the last that the world heard of Nelson Mandela for 27 years. And yet somehow looking back on his life, his voice was the most powerful when it was the most silenced. The very fact that he was forbidden to speak and to be quoted, but people knew he was there on Robben Island. And his greatest champion was Oliver Tambo, who had been sent out by the ANC into exile to carry out the struggle, to get international support, to secure the boycott against racist South Africa. And instead of being the competitor to be the leader, Oliver Tambo — O.R. as we called him — always insisted that Nelson Mandela is our leader. Never claimed, “I am the leader, I am looking after Nelson Mandela.” He said, “Nelson Mandela is our leader.” And he became a symbol, throughout the world, of resistance to oppression when it became known that he had been promised his release, provided he agreed to certain terms that fell short of whole democracy. I remember that time when his daughter had a message and she came out and the stadium was packed and she said, “My father wants me to say that he has been offered his freedom, but he says, ‘I can never accept my freedom if my people are not free’,” and the people stood up and cheered stood up and cheered. And it was not too long after I had been blown up and I’d lost my arm and I am recovering in London and the Free Mandela concert was going to be held at Wembly, a pop concert, and I’m still weak. I don’t know what you do at a pop concert. I’d never been to one. Do you stand up? Do you wave? Do you have to do something funny? And I joined the 70 thousand people there and I discovered it wasn’t so difficult. You can stand up and wave if you want to, even if you only have got one arm. You can sit down. And what was so terrific about “Free Nelson Mandela” — you might remember that song — there were 70 thousand young people and one middle-aged person with them and when the concert started and Archbishop Desmond — Trevor Huddleston said, “We want Nelson Mandela to be free,” 70 thousand young people and one middle-aged man stood up and cheered, and cheered, and cheered, and cheered, and that is all they really wanted to do. That cheering was more exciting, more important and more wonderful, than all of the great singers that had come from all over the world who had come there. And these were supposed to be the young yobbos in Britain uninterested in politics and they were cheering because Mandela became the symbol of dignity, and decency and uncompromising demand for full equality for everybody. We were so proud of South Africans. And finally he was released.
The next moment I remember is I am in Lusaka. It is about three weeks after his release. He is coming up to Lusaka in Zambia to reconnect with Oliver Tambo and with the others. They had been separated for thirty years. What a special moment it was. And we’re in a hall maybe as big as this and we were all standing around the side and then the prisoners, former prisoners and the others, come in through the door and everybody is cheering and there is somebody you haven’t seen in thirty years and he’s got grey hair — or no hair at all — and he was a thin guy and now he has a big tummy — but huge smiles and you recognize people by their smiles and by their eyes and everybody is hugging, and hugging, and hugging, and greeting and there was nobody whom I saw who had that same kind of specific connection with me and it’s the only time and I can say this quite upfront, it is the only time I felt sorry for myself because of my arm. At that moment that summer I’m reconnecting. I’m going back to South Africa. I will go back without a bit of me that was in the end incinerated in a hospital in Maputo. Ten days later I am in London, back in London then and we have the same reencounter, and this time we are lining up and it is Nelson Mandela downstairs and Winnie Mandela coming upstairs and I’m upstairs and she comes down the line and she is greeting, greeting, greeting, greeting people and she sees me and she doesn’t recognize me and somebody says, “Albie Sachs!” “Albie Sachs!” she says and she opens her arms and she gives me a hug and a kiss on my lips and she holds me. I have owed something to Winnie since that moment. That is what I wanted, I forgot all about my arm then, and she caused, and I’m sorry to say it, I’m really sorry to say it, but she caused tremendous damage to our struggle, to our movement in all sorts of ways, and she caused a lot of hardship to Nelson Mandela. He said of their divorce, the only thing he said was, “I just wished, just one night after I had come out of prison she would have come to my bedside and said something kind to me,” that is all he said. But at that moment, for me, Winnie was the one that gave me that embrace, gave me that sense of reconnection, and it was wonderful and I will owe her forever and forever for that.
The next phase is getting down to it. We want a new constitution. We have been talking about it. We have been talking about a national convention. We have been talking about justice. We’ve got our freedom charter. But how are we going to get a basic document for our country that is going to establish that it really belongs to all that live in it, to all of us? It wasn’t easy. From many of the reports you would think, well the wonderful Mandela got together with the wise de Klerk and they sat around a table and they came to an agreement and it was just easy like that. It wasn’t easy. It took us six years. We had breakdowns. We had massacres. We had rolling mass action. There was one moment in the negotiations that none of us were able to forget, fairly early on where we had agreed on the first phase and the way of going forward and we felt o.k. we are making progress and the last speaker was F.W. de Klerk and we hear from the judges who are presiding over the proceedings that the president of the ANC wishes to say a few words. What is going on? Nelson Mandela goes to the podium. “I have a matter of grave importance to raise. President F.W. de Klerk gave an undertaking last night that there were certain issues he would not raise in the proceedings about our armed struggle and he has violated his own undertaking.” I need another arm for this. He pointed his finger and he said, “That man is not to be trusted.” We were all stunned. That was the moment when F.W. de Klerk ceased to be President of South Africa. I mean psychologically, culturally, historically, that was that was that moment when suddenly here was a black person standing up and speaking with tremendous authority — total conviction — “That man is not to be trusted.” De Klerk went back to the podium; he answered. For neither of them was English their first language, but I’ll say this: Mandela was better. And then when a year later, Chris Hani, who was the general secretary of the communist party, a very brave freedom fighter, head of a very important section of the Umkhonto we Sizwe of the ANC who had come over completely to fight for peace was assassinated — he had been out jogging — by right wing forces that wanted to provoke a racial civil war in South Africa, and we almost had it. That was almost the moment when everything slipped away and there was only one person who could go onto the air and say, “Keep calm. Keep calm. We are going to get there, we’re going to get there through the vote. Don’t give it all away. Keep calm. Go back to your homes. Don’t throw stones. Don’t burn buses. Keep calm.” So if the finger pointing day was the moment when de Klerk ceased to be president, that was the moment when Mandela became president, long before we voted him in, because he was the only person who could speak to the South African nation in that way and calm the people who were so angry, so angry, so angry. Ironically — paradoxically — the Bill of Rights that Mandela supported that we got adopted by parliament abolished the death penalty. So the people who had murdered Chris Hani, their lives were saved because of the ANC’s opposition to capital punishment as a matter of principle.
I’ll fast forward to my last day on the national executive of the ANC. I’m trying to resign. It is just before the first elections. I want to be considered for a judicial position. You can’t be an active political person and on the bench at the same time. You just can’t — it doesn’t work — it shouldn’t work. You can’t have loyalties to the constitution and to the college of people you are working with and loyalties to a political organization. It wasn’t a drastic change for me because the constitution embodied the values we’d been fighting for inside the ANC. So it wasn’t as though I was rupturing my life’s journey, if you like — interrupting my life’s journey and abandoning something. It was a different formatting, a different role, a different function, and I wanted to resign from the national executive and the national executive never got round to Albie Sachs wanting to resign. I mean, on the agenda they had things like civil war in Bophuthatswana and what to do with resistance in KwaZulu-Natal and a whole range of issues like that, so eventually I just announced that I had resigned and I sent out little photographs to everybody. I’d run to the sea, and a jazz musician was there waving to me as I jumped into the water and there was that picture of me waving and saying, “Goodbye, comrades.” And I get a message: Mandela wants to speak to you. Oh, I think, he wants to say, “Goodbye! Thank you for what you’ve done! I wish you luck!” Not a word of it. Looking very tired — I have never seen him looking so tired, his face so lined — and he is saying can I explain to him the provision in our constitution dealing with amnesty for crimes committed during the conflict against … involving apartheid. He couldn’t quite understand and I explained to him the process that I’d actually suggested of allowing an amnesty to be given — but not just a general amnesty — an amnesty to each individual who came forward and acknowledged what he or she had done. Telling the truth was the foundation for amnesty. “Oh, I get it,” he said. He understood. And that was my last political connection with him.
The separation of powers is a very, very complex thing in a way. It involves a separation of friendships, the separation of contacts. Not that you become hostile or aloof or distant, but you can’t have that same convivial relationship, that same sense of comradeship, because now he’s the president of the country, he’s involved in the passage of legislation. I’m the judge. I’ve got to see — together with my colleagues who might have been politically active, might not, might have belonged to other political organizations, that doesn’t matter — we have to uphold the constitution without fear, favor or prejudice. That was the country we were fighting for. And so it was never quite the same after that. And here I am part of the group striking down a law that’s manifestly good because it’s against the constitution. We had one lovely phase of interaction where we were clearly on the same side and that came the moment when he announced the winners of the international competition for our new constitutional court building. And we were sitting right in the heart of the Old Fort Prison in a prison courtyard, an exercise yard. “I feel distinctly uncomfortable,” he said. “I want to leave as soon as it’s possible.” I see my colleagues looking all anxious. I know what he is going to get at. “I spent far too much of my time in prison and I want to get out of this place as soon as I can.” Then he smiled and everybody relaxed. And then he said, “It is my honor to announce the winner of the competition to build the new constitutional court building. And the winner of the competition is … .” And then he stops to take a drink of water. “And the winner of the competition is….” And he stops to open the envelope. “And the winner of the competition is … ” And he mentions Design Workshop in Durbin and so on. He was having so much fun — he was feeling such a sense of joy. These were the tangible achievements now. It’s not just speaking about freedom; it’s building, constructing the institutions, and creating the home in which freedom can be protected. And he is a party to that and we all felt very, very special within that.
I’ll quickly run through some of the cases that we had as Mandela as litigant and not so well known. I’ve mentioned the one. Another case dealt with an amnesty that he granted. As the new president, a new country, a new dawn, rulers kind of release people — they free people from prison — just as a gesture of magnanimity and hope. And he said that all prisoners serving sentences for nonviolent crimes who happen to fall in the following categories shall be released. And it is disabled prisoners, prisoners under a certain age, and mothers of children under twelve. And Mr. Hugo, a father of a child under twelve, said, “What about me?” And it’s a difficult case. Was that unfair discrimination against fathers of children under twelve? And the majority of us said it wasn’t unfair discrimination. The fact that you grant a benefit to some — not an entitlement — relieving the prison population. The fact that by and large the primary caregivers are mothers and not fathers. And I might say, I supported the party. My first wife had been in prison and she said the only spark of hope for the woman prisoners would be their children. It didn’t apply to the men prisoners, by and large. The one area in life where they were somebody — where they signified something to some important person — would be in relation to their children. And the majority of us took a situational approach that by and large to reduce the burden of people who, because they were women, bore heavier burdens in life than the men wasn’t being unfair to the men by not equating it. But there were also practical reasons because it would have meant releasing fifteen-thousand men, maybe. We wouldn’t have known how to find out who are the fathers of children under twelve. Primary caregivers, where it was a simple thing that could be functional. It would have meant in fact we couldn’t allow anybody out and it would have been a strange way of supporting the rights of women to say we’re not going to allow women to be released because if we let you go it’s furthering the notion that women are the primary caregivers and not the men. Anyway, it was a difficult case, it was a difficult case. It’s still controversial in many respects. I had a very interesting little disagreement with Ruth Bader Ginsberg on that very case and she said, “If you don’t insist on equality for men you won’t get equality for women,” and so on, and the students at the University of Cape Town were amazed to see Judge Albie fighting with Judge Ruth. We’re so used to it — it was nothing difficult for us. Anyway, that was the one case. Possibly the most important thing in that case was our decision that there’s no prerogative, there’s no political question, there’s no area of exercise of public power that’s beyond the scrutiny of the judges. And normally we won’t easily interfere with a presidential pardon — a decision that is imminently in the executive square in relation to clemency — but if it violates a fundamental right, we will interfere.
The South African Rugby Football Union case, where the president of the Rugby Football Union felt he was more important than the president of South Africa — and that’s carrying sporting pride a little bit far — and Mandela had ordered a commission of inquiry into allegations of irregularity and racism in the sport, and this was challenged. And the judge in the high court — Mandela went to the high court, he testified — he thought he could charm everybody! — and he charmed the judge but the judge didn’t believe and didn’t accept his decision, his evidence. And the case came on appeal to us. It was very bitterly fought; we were asked to recuse ourselves — disqualify ourselves because we were all too friendly with Mandela. We refused to do that. In the end we upheld his right to institute the Rugby Football Union inquiry and nobody has really seriously challenged that decision.
The pharmaceutical industry case. Again he’d done something that the country needed: He’d signed into law a new law dealing with drugs — you call it drugs — medicines, but including dangerous drugs. And the new law abolished the old regulations. It was much more progressive, much more effective. But it was signed into law without new regulations being put in place. The net result would’ve been people could possess and distribute cocaine and heroin and all the rest without any law being there to control them. He came to court and said, “It was a mistake. I acted on legal advice. Please withdraw my signature.” It came on appeal to us. We said, “You can’t. Once the president has signed into law he is acting not simply in an executive capacity but also it is legislative capacity. That’s the final act to make it law. So you can’t withdraw your signature.” But we said, we developed, a doctrine of rationality: If the law ends up destroying law it’s inherently irrational and therefore it’s unconstitutional. Very limited grounds, but we developed quite an important area and it’s stood up to the test of time in our country.
The last case was the liquor bill. The president has the power, if he believes that a law is … if he has doubts about the constitutionality of a law, to refer it to the court for an advisory opinion. And this was a liquor bill that was also imminently good, but he had doubts that it violated the power of the provinces in an unacceptable way when it came to dishing out liquor licenses. Now he was going against his own party, the ANC, his own government. And remember he’s chosen by parliament, he’s not chosen by direct election. Parliament chooses the president for a five year term, chosen by his own organization. He sends it back to them, they say no. They stick him with their text. And he sends it to the court. And we upheld his reservations. But that’s the way a president should act. When you’re president of a country, you might be there as leader of your party, but ultimately you’re there for the nation.
So how did Nelson Mandela respond? Going back to where I started. We were told that he would appear on television. Remember the case where he had issued proclamations dealing with the first nonracial democratic local government elections? We’d struck that down. We said parliament itself has to pass that law. It was very inconvenient because parliament was in recess then. They had to summon over 400 members of parliament to rush the matter through and he went on to television and he said, “When I issued those proclamations I did so on legal advice. I now accept that that legal advice was incorrect and I as president of the country must be the first to show respect for the constitution as interpreted by the Constitutional Court.” For me that moment — that day was as important as the day when we all stood in line and voted. When we voted, that was to establish that South Africa was a democracy, but when Nelson Mandela accepted the decision of our court, and did so with so much grace, that was the day when we became a constitutional democracy in which everybody would be bound by the terms of our constitution. And once Nelson Mandela had done that, then afterwards the postmaster general and the mayor of Cape Town and the minister of justice — they’re not going to feel offended, there’s nothing personal about it. And the interesting thing was he emerged not as a defeated president who had been struck a blow but somehow as emerged as if to say, “And you see what a marvelous country I am the president of.” He came through somehow with enhanced prestige. And the whole structure of government was just given an enormous extra rootedness in our society because of our, I believe, our principle decision and because of the gracious way in which he accepted it.
We don’t want him to go. We don’t want him to go. He’s in his 90s. He’s frail. Somehow when a big person like that is frail, you feel it even more than when it’s a small person. He has to be helped up when he walks. He’s not active in public life at all. He doesn’t take decisions, he doesn’t influence everybody, he doesn’t issue statements. We don’t want him to go. He just represents something for us that’s so special and warm and good inside ourselves. We want him to be there forever. I know myself, I want him to be there — not just to be there — but because I don’t want to be amongst the older survivors. It’s nice to know there is another generation, another layer. But it’s more than a consolation because the legacy he is leaving … He wasn’t the fantastic, messianic person who came along and dragged the country to avoid a civil war with his enormous generosity. He was just one, one of many, one of many. A great team worker — he was a great leader because he was a great team worker. He was a great speaker because he was a great listener. He just somehow found a way of articulating things that people understood and believed in and could connect people up with each other.
But his hugest legacy was the constitution, of which he was one of the umpteen — yeah, he signed it, in that sense it’s like his last will and testament, but it wasn’t a last will and testament that he drew up himself. There were thousands and thousands of signatories in its shaping, in its development, in its history, in the values. But he epitomizes … He didn’t make our movement, he didn’t make the ANC. But he represented our movement. He represented our generation. He represented our culture. He represented our country so beautifully. I think all South Africans feel immense pride to be from the country that produced Nelson Mandela. And I as a former judge — I don’t use the “R” word that was mentioned in the introduction, the very beautiful introduction — take a special pride in the role that he played in the establishment of the Constitutional Court of South Africa. The building, the gracious way he accepted our decisions, the love he had for that place, the artwork, the fact that it’s in the prison where he’d been locked up — the prison where he’d come first as a professional, as a young lawyer, then he’d been a prisoner, then he comes as president, and finally it became as pensioner.
The tangible consequences of the struggle that he put up, the beliefs that he had, for me it’s stronger than reconciliation. Reconciliation can be, “Well let’s not fight anymore.” It’s what I personally call the soft vengeance — the transformation — the vengeance that doesn’t involve retaliation and doing to them what they have done to you, but lifting the whole mode of existence to a different level where you get beyond simply determining who’s the strongest, who’s the most powerful. It’s the greatest vengeance. Soft vengeance is more powerful than hard vengeance because you are changing the nature of the contest and you’re winning the moral victory and the victory of values. And that’s really the greatest achievement of Nelson Mandela. And that’s why we want him to be around and around and around forever and forever and forever even though we know that he’s not going to be.
Q&A with the audience
Woman: Would you be able to tell us whether religion ever played a part … in the ANC, but in the struggle in general, perhaps both for good and for ill on both sides? Could you speak about that for a minute?
Albie Sachs: You wouldn’t happen to be the professor of anthropology of religion would you?
Woman: Who told you?
Albie Sachs: You did!
It played a very big role. And, ah, I grew up in a very, very secular home. My parents had fought their parents on religion. And I remember being at a meeting — I’m 17 years old now and I’m going to meetings on the grand parade, where we used to have our meetings every Saturday afternoon. Sometimes 200 people, a very good meeting a thousand. And one of the ANC leaders who had been well known as a member of the Communist Party — before the party was banned — spoke about, “ … And the Red Sea will open up for us like it opened up for the Israelites.” And I said to him afterwards, “Comrade, how can you be quoting from the Bible?” And he said, “Comrade Albie, there are some things that you can deal with only through politics and the other things that politics don’t reach.” I was 17 — it was a big shock for me but an important one, ’cause coming from him that was just the way he saw the world. Years later when it came to drafting a preamble, somebody from a very very big evangelical church body came to see me in Cape Town and he said, “Would you like to be famous? Would you like to be a hero?” Well, that’s an interesting beginning. And he said, “All you have to do is have as the preamble, ‘In humble submission to almighty God.’ Put that in and we will all support the democratic process but we must have that statement there.” And I thought, We can’t — our constitution it’s for everybody — believers and nonbelievers — it’s a document for secular society. Let the religious bodies have their own preambles and statements and existential manifestations. But I came up with what I believed then and I think has become the response: “Nkosi Sikelel’ iAfrika” — God Bless Africa. We all sing it — believers or nonbelievers alike. [sings] “Nkosi Sikelel’ iAfrika Maluphakanyisw’ … ” And even now, the Springbok rugby players, they sing it. It’s become a song of national unity. It unites everybody. It’s the hymn of the oppressed and the fact that it’s religious in its terminology … well, that’s part of our history. And I think in many respects that symbolizes the manner in which we don’t go for a strict separation between church and state. We believe religious bodies have an important role to play in the development of our country but we don’t want any religious body to dominate and when it came to the decision in the same sex marriages case — I was asked to author the decision for our court — the most complex part for me was dealing with the relation between the sacred and the secular. And when I talk about it — and this might be of some interest because of the currency of the matter in the United States — I start off by saying its 1991, November. I’m sweating. I’m sweating because I’m… it’s hot. I’m sweating because I’m driving with my left hand — having lost my right arm — and I’m not really familiar with it. I’m sweating because I’ve been 24 years in exile — I don’t know the roads of Cape Town very well. But above all I’m sweating because above all I’m going to go for the first time on a gay pride march. And I’m saying that if they only had a poster, “Straights for Gays.” And then I feel ashamed that I should even think that. And eventually I see the marchers coming towards me. I park the car. The first poster I see says, “Suck don’t Swallow.” Oh my God. I’m in the newspaper tomorrow for sure. And I join the marchers and I’m next to Edwin Cameron, who’s now on the Constitutional Court, and I feel fantastic. I feel so proud — proud of myself that I have joined a group that has been subjected to so much marginalization in our country and I’m marching with them. We stop, we pause in a park where we used to go as a kid, and I’m asked to say a few words and I say, “There used to be signs saying, ‘whites only’ — it could have been signs saying ‘straights only’.” And the issue of rights from a sexual people isn’t just important for the section of community who participate in the struggle for freedom, who are entitled to their emancipation. If we can’t deal with difference in South Africa we’re finished. Difference has been used in our country to keep us divided. And this becomes a touchstone for our constitutional imagination and for human dignity in our country.
Fast forward to 1995. I’m sitting ’round the table with my ten colleagues and Pius Langa, chief justice, says, “A body called Christian Lawyers for Africa are going to have a conference near Johannesburg soon”; they have asked him to attend. He’s going to be away; it’s during the court recess. “Is there anybody available?” [Raises hand] “Pius, I’m here — I’ll be on duty. But I don’t think I’m the right person.” He says, “Albie, you’re just the right person.” And I know what he meant. He’s a Christian, he’s a lawyer and he’s from Africa. But if he goes, he’s going in what looks like a sectarian capacity. But if I go, I’m representing the court. And I go there. I am being driven this time. I’m not sweating — it is in the evening. But I’m feeling uneasy. I’m secular! But I feel I can’t just say to them, “On behalf of the Constitutional Court of South Africa I hope you have a good conference. Bye bye.” They are people of conscience, and conscience means so much to us, on our court. And I have to say something more than that. So I tell them the story of taking the oath of office, that day when Mandela rose to say, “The first time — The last time I stood up in court … .” And I was alphabetically challenged — “Sachs” — I was the last. I watched my colleagues. Most of them swore: rose, lifted their right arm and said, “So help me God.” Some affirmed. And what do I do? Now we have afterwards a Yacoob and a van der Westhuizen, so I wouldn’t have been the last — but then I was the last. And I’m telling the Christian Lawyers for Africa how as a child I had to decide. And it was difficult for me, but to pretend a belief in God that I didn’t have, I said — age 11, 12 — would be disrespectful to myself and disrespectful to God if God exists if I don’t have that belief. I’m telling this to the people there, why the oath becomes very important. But it comes to my moment and I wanted to raise my right arm. It’s the arm of sacrifice. It’s the arm that reminds me of Ruth First, who didn’t survive the bomb sent to her in Mozambique, or Luke Maszwembe, who was tortured to death. Elijah Loza, friends of mine tortured to death. Joe Qabi, assassinated. And I told them, I raised my right arm, and I said, “So help me God.” I thought they’d be angry with me. I’m doing it for a secular purpose — I’m taking the Lord’s name in vain. They stood up and they cheered. The next day I took them on a tour of the Court. About 70 came. And you can imagine, it’s a court right in the heart of a prison with beautiful artwork, and, symbolizing the theme justice and reprieve. It helped to reconceptualize the very nature of a top court, not as a citadel of power but as a place that belongs to the people. And we tour around, we tour around. And I’m looking at my watch — it’s a little bit late — and I’m due to go to a meeting in the woman’s jail, where the Commission for Gender Equality, created under the constitution, now has its headquarters. And I’m late. And they say, “Please don’t go. We have to say a prayer.” Now some prayers are short and to the point; some prayers go around the world a few times. And this is one of that second kind. And I’m late and I’m late and I’m about to go and they say, “We must lay on hands.” Seventy pairs of believing hands on my secular body — but I received it because I received what they were giving — they were giving their love and their belief to me and I was receiving it in the way that it was given, without necessarily accepting the theological foundations. I was accepting the spirit of what they were doing.
And I mention this because I’m writing the judgment on same sex marriages. I’m not consciously thinking of the gay pride marches and the Christian Lawyers for Africa, but they’re all part of the nation and you’ve got to write one judgment — one opinion for the whole nation — and it seemed inappropriate to think in terms of, We are the enlightened and they are the benighted. The judgment shouldn’t draw a line like that. Then you divide the nation. And calling people who have a different philosophy on these things “bigots” — that was also, ah, inappropriate. They are members of the nation. They have a right to have their beliefs, they think that way — provided they’re not imposing their beliefs on others in ways that are cruel and harsh and trying to yolk the law in ways that are unconstitutional. The longest portion of the judgment deals with religion in public life — not religion only as something that you can do in private, or on Sundays, or in the synagogue, or in the temple, or in the church, or in the mosque, in the cathedral. But religion is part and parcel of public life. The secular judge probably wrote the most extensive expression of the fact that religion is enormously important for millions and millions of people in our country. It’s the source of their belief in fundamental rights. It’s the source of so many features of their life. It’s how they see creation — their place in creation. How can you say it’s just something else like I prefer Colgate’s to Pepsi to Coca-Cola or — it’s not just a little preference like that. That happens to be in that judgment. I can give you the reference afterwards if you want.
So really it’s to say that religion was invoked to justify apartheid and separation. When … during one of my periods of solitary confinement, the station commander told me that the Lord had sent me to his prison to be converted by him and since I had nobody else to speak to, I was willing to … to listen to what he said. And he gave me his views of religion. And he said, “You know there’re some people believe that the world is … that the world was created 5,842 years ago. They take that literally. That’s not correct — it was 8,549 years.” And then he told me the story about the Samaritans: “And you think the Samaritan’s a good Samaritan, but it was the Israelites had been wandering in the desert for 40 years and their skin was all leathery and hard, of their wives, and they met the Samaritans and the women had soft skin” — and he is telling me all this — “and they lay with them and produce children who became the Samaritans. And you see all the problems that have been caused by miscegenation in the world?” And of course it makes sense — that’s why the good Samaritan was the good Samaritan … was the exception. But you know all this was astonishing to me. He literally believed that. And for him religion justified apartheid and it was used to justify apartheid. And the soldiers who went to kill us, and possibly the person who placed the bomb in my car — whom I met afterwards by the way — would go and pray for a good operation or a good job. But there were other religious people who’re very active in the struggle for freedom — and some quite high up and some, like Archbishop Desmond Tutu emerged afterwards. So religion was as plagued by and as responsive to the struggle against apartheid as any other sector of our society. And I had to learn to be more tolerant from my purely rationalist humanist point of view, which I still retain. People say when you get really old and you’re nearing the end you go back to original faith. And my original faith will be a rationalist one — that’s what I’ll go back to. But maybe being in the struggle has taught me the music, the fact that for millions and millions of people religion is extremely deep and extremely important and extremely significant for them. And for me that’s a blessing, that’s wonderful. It’s not an opiate. The fact that religion has been used for negative purposes — well everything’s been used in negative ways, positive ways — that’s for religious people to fight over. But that’s not something to make me intrinsically hostile. My wife is a strong believer in a spiritual life after death and I have got an understanding with her that on the assumption that I go before her — given our age difference — there’s a slight statistical possibility that she’s correct. I have told her, “You can say, ‘I told you so.’”
Maybe I can take a few questions and then cluster them.
Woman: Lately there’s been a lot of public discourse comparing Israel and Palestine to South Africa, actually using the word apartheid and comparing the situations. Can you speak to that?
Albie Sachs: Let me take a few questions.
Man: What do you say is the, ah … are the challenges for this generation in maintaining the democratic South Africa that you and Nelson Mandela and others have fought to create?
Woman: Any other?
Man: I just want to know what role you saw the medical profession play in the struggle against apartheid and what role you think they have in social justice in general?
Albie Sachs: Okay, let me take those three.
I’m going to answer the first question with a story. In the year 2000, I was invited by the Kennedy School of Government at Harvard to attend a conference in Gaza on the rule of law and it was the first time I had been to what I call “that part of the world.” Even when you give it a name, you’re taking sides. And it was a very vigorous conference, and basically what I did was tell the story of Nelson Mandela and the decision in the Western Cape government case that I mentioned. And the implication was a good leader isn’t above the law — a good leader works within the law and you’re fighting not simply for state power, you’re fighting for the dignity of your people. And the conference is over and I receive an invitation: Yasser Arafat would like to meet me. We drive through the checkpoints, we come to Ramallah, go up the stairs. There’s that famous compound with the long table, and there’s Yasser Arafat, looking just like Yasser Arafat, with the scarf and the stubble and he comes up and he embraces me and he kisses me on both cheeks and he said, “This man is a hero.”
The next morning I’m sitting in Jerusalem on the Supreme Court bench next to president of the court Barak. And I thought, Only a South African can have that experience. And I was openly [gestures] with both — each knew about the other. And the result is I see that I might — if I have any role at all — it’s a role as somebody who understands where Israel comes from, why it’s so important, significant for so many Jews. I’m not a Zionist but I understand the impulse that leads so many people to see it as a country that’s enormously meaningful to them. At the same time I just feel powerfully and immensely the injustice to the Palestinian people and the need for an independent Palestinian state next to a secure Israeli state. But not a week subaltern state — a proud Palestinian state with a proud neighbor, doing commerce together, doing things together, arguing together, and so on. And I understand that and I feel it in my bones. And maybe I have a role to act as a … some kind of connector. Which is all to say that’s the reason why I’m not going to answer your question.
The second question was?
Man: The challenges.
Albie Sachs: The challenges, yeah. Yes, for me the … . What gives me so much confidence for my country … . We have terrible problems, and a lot of them we attribute to the past, quite correctly. The very powerful, entrenched structures of racism don’t go with the new constitution. But we can’t blame it all on the past. We’ve shot ourselves in the foot so often, we’ve run out of feet to shoot ourselves in. We can’t blame that on the past. We’ve got to take responsibility ourselves for that. And we have problems of corruption and problems — unemployment’s our biggest single problem because it feeds all the other problems we’ve got, of crime…. There’re lots of things quite unacceptable. But what gives me confidence is the constitution, and not just because it’s a document. It’s a meaningful document in our society. And we have the institutions to protect it. And so far no government, no president — not even with the authority of Nelson Mandela, Thabo Mbeki, a different temperament, a different style — always accept it. Jacob Zuma: different manner completely, different connection with the people — he’s always accepted the decisions. We have the Court, the Court is there. We have a press with a powerful, investigative set of journalists. And if there are any threats to the freedom of the press we’ll know because the press will tell us, 24/7. And our people speak their minds. People are not afraid. You just listen to any phone-in program. Somebody said you have a… is it Ross Lonbow? Okay, whatever his name is, we don’t have a radio station in his name, where he has a… but somebody like him phones in every day. And lots of people like him and they can speak their minds but they don’t control the media. So in that sense I’m not afraid. The challenges are enormous. We haven’t found the way of getting the degree of economic development that’s going to employ millions of people, and I am speaking in Flint — you know, even in a very developed, advanced country like this — what unemployment can mean. And now it’s not just one unfortunate area hard hit by history and economic forces it, it’s our whole country, in a sense, have these massive inequalities that we’ve had before.
What I say to young people is, “I just hope that you are as irreverent and sometimes as impatient and as cheeky as we were when we were young. Innovative — but I also hope that you listen, you learn to take the long view, you don’t think that things can be solved in quick, short-cut ways.” We knew it was going to be a long struggle. That’s all that I ask of them. That’s the biggest challenge then, I would say, to young people: “Don’t look for quick, short-cut solutions.” I used to say that one of the paradoxes of our struggle was we fought with all our passion to create a boring society. We’re good at miracles; now we’ve got to learn to do the ordinary. And that takes time. And that’s one reason why the corruption is so invidious. Because the poor know things take time, they know it takes time. But if they see somebody who is their neighbor who’s now elected to the town council and becomes the mayor and is driving around in a big car, then they’re going to get impatient. Then they know funds are being diverted. Then they get very, very angry. So the sense of morality is absolutely vital. Mistakes you’ll make — you have to learn from the mistakes — but you mustn’t be afraid to make mistakes.
Important: I’m confident that we are broadly on the right track. But that’s very broad terms — there’re lots of — it is more than details — lots of features that are totally, totally, totally unacceptable in our society. As a former judge, I zip up when you ask about particularities. I watch what’s happening. I tell stories about what we did, the challenges that we had, the choices that we made. And I just hope that becomes part or feeds into the culture.
And I might mention I was absolutely determined to say something about Mott because I’m here because of Mott, and one of the things that endears me to the Mott Foundation was that they funded, in quite a substantial way, the completion of an oral history of the foundation of the Constitutional Court of South Africa. Because I believe it’s got importance that goes beyond just South Africa, just beyond law — how do you invent and create a whole new constitution? All the little details: Do you wear a gown? How are you addressed? How do you take decisions? How do you render your opinions? How do you communicate with the public? How do you speak to counsel. All these things — we had to take decisions about that. What kind of building do you want to be in? And thanks to Mott we were able to record and interview over 100 people concerned with that project. And this is not an obvious project, not an obvious project. Mott understood the importance of it, the idealism involved in that project. But how do you make idealism real and enduring? How do you make the intangible — our lives are governed by the intangibles, really, directed by the intangibles — but they’ve got to be made tangible. And that’s the story that Mott enabled us to, to tell.
Doctors. My late brother, Johnny Sachs, was a medical doctor and he worked on the ANC Health Committee. They played quite an important role in preparing South Africa for a more progressive health system. And he constantly used to say that more lives are saved by clean water and good housing and nutrition than all the medical interventions in the whole world. One had to look at health in a very holistic sort of a way. And many people in the medical field — not just doctors — nurses, technicians, and others — were very active in the last years of struggle against apartheid and played a very, very positive role in that way. And yet we haven’t produced the health systems that our country deserves. We haven’t done that yet. We’ve got a terrific minister of health at the moment — he rolls up his sleeves, he’s doing lots of good things — but we still have a very, very long way to go.
I see the signs of … .
Woman: Thank you very much for your thoughtful answers to those questions. I’d like to wrap up now. I would like to mention that the university bookstore will be selling two of Albie Sachs’s books in the hallway outside the Michigan Rooms, two extraordinary books which I highly recommend. First is “The Soft Vengeance of the Freedom Fighter” and the second is “The Strange Alchemy of Life and Law.”
Albie Sachs: I’ll sign them.
Woman: And he’s willing to sign. I wonder if we could just again say thank you to Albie Sachs and the Mott Foundation.