By Paul Mabote
The South African Constitution is believed to be one of the best and most inclusive Constitutions in the world. It was birthed out of necessity during the historic transition from the discriminative apartheid era into the new democratic South Africa. It is worth remembering that the country’s Constitution as well as the democracy and freedom it represents today came from the blood, sweat and selfless efforts of our past leaders and activists -few of which are alive today.
One such hero is Albert “Albie” Sachs, who is a decorated author and former judge in the South African constitutional court. In 1988 in Mozambique, Judge Albie Sachs famously lost his arm and sight in one eye during a car bomb assassination attempt due to his participation in the anti-apartheid struggle. South Africa is fortunate that he survived these assassination attempts because he later became the chief architect of this very inclusive South African constitution in 1996.
On 15th June 2020, Judge Sachs had a special conversation with Activators on the Zoom virtual conference platform. The engagement was titled “Constitutionalism as a guiding frame for creating a South Africa of our longing”
After being introduced, Judge Sachs began by waving at Activators with his missing right arm, saying “This arm was blown off when they tried to kill me. It somehow represents the struggle and all my friends and comrades who died in the struggle. It also represents the fact that many of us survived and we got our Constitution and we managed to pull down the terrible system of apartheid.”
Whose DNA is in the South African Constitution?
Judge Sachs spoke in detail on the origin of the South African Constitution and credited the late struggle hero Oliver R Tambo for his contribution in the development of the document, saying that he was a known brave leader and he represented the deep African roots of the Constitution. Sachs also spoke on the hard-fought development and adoption of the bill of rights as a guide and an instrument to maintain equality and non-discrimination in South Africa.
“The constitution,” he said “was not made as a deal between Nelson Mandela and F.W De Klerk, it was made in parliament by 400 people who had been democratically elected, most of whom were black and most of whom had been in the struggle, had been jailed, tortured and in exile; those were the leaders who drafted the South African constitution.”
Questions and answers
“Due to the way I was raised and taught at home, racism was just never a natural thing to me.” That was Judge Sachs’ response to the opening question asking what his motivations were for joining the revolutionary struggle for national liberation.
Activator Delta Mphahlele wanted to understand why the ANC government included the land act of 1913 in the Constitution that was now meant to promote freedom, equality and non-racialism. A concerned Clenton Mogapi also asked what Judge Sachs thought it would take to reach a state of genuine equality in the country.
“The final constitution has no arbitrary deprivation for property rights,” Judge Albie answered. “The constitution puts a strong duty on government to create access to land. Furthermore, the land act of 1913 also says that persons who had been forced off their land before 1913, could get their land back or be compensated. We wanted land reform but we did not want people randomly raising tribal concerns to get access to particular pieces of land. It was an important decision for the country but it unfortunately did not change the basic division whereby whites continue to own majority of the land. Through the provision of welfare services and social infrastructure, however, we have softened the inequality in our country in many ways that cannot be dismissed.”
Judge Sachs went further into discussion, responding to questions regarding the correlation between the constitution making process and the simultaneous Truth and Reconciliation Commission proceedings. He also addressed the inclusion and exclusion of certain rights in the constitution. Other questions revolved around land expropriation, the analysis of the popular opinion that Nelson Mandela “sold out the country” as well as the government’s criticism of the constitutional court for “making laws on behalf of government.”
Judge Albie Sachs concluded the informative session by reading out the preamble of the South African constitution.
“I do not see the constitution as failing. I see the constitution as having succeeded in maintaining certain core parameters and keeping alive the spirit that allows civil society to continue functioning.”
-Former justice Albert “Albie” Sachs.