For a man whose writing was once banned under the apartheid regime, releasing his tenth book is a very special milestone.
Former Constitutional Court judge and anti-apartheid activist, Judge Albie Sachs, recently released his new book titled We, the People: Insights of An Activist Judge.
While in exile in Maputo, Judge Sachs was targeted by apartheid security forces, losing an arm and the sight in one eye when a car bomb exploded.
After democracy, he began work on what was to become South Africa’s Constitution. He said his main reason for releasing the book was that South Africa was bubbling with issues relating to the Constitution, the role of the courts, the president and the conduct of the president.
The book comprises his essays and public talks delivered over a quarter of a century and aims to give insight into the Constitution.
This year marks the 20th anniversary of the Constitution.
“When we created the Constitution, we anticipated the kinds of controversies that are arising now.”
This meant going back to the context in which the Constitution was drafted.
The Clifton resident said one of the themes of an inaugural lecture he gave at the University of Cape Town in 1991 was the tension between accountability and corruptibility.
“That lies at the heart of the Constitution. You aim for the ideal but you also prepare for things that can go badly wrong.
“Experience in Africa was very important. We had been in countries where leaders had fought heroically for freedom and had gone on to be very authoritarian rulers. We had also seen in our own ranks in the ANC that there were people who had abused their positions. In planning for the new South Africa one of the major themes was mistrust of ourselves and that’s built into the nature of the Constitution.”
In particular, said Judge Sachs, it was essential to create structures which would ensure the protection of the Constitution, among them the Independent Electoral Commission, the Judicial Service Commission, the public protector, the auditor general and the Independent Broadcasting Authority.
“All of them played an extremely important role. Now there has been litigation and a strong trigger for the book was the Nkandla decision. I sensed a feeling of jubilation throughout the length and the breadth of the country that the Constitution is working.”
Judge Sachs said he has always had a passion for writing and was editor of his school’s magazine. “I loved reading and I often imagined that I would write a book one day.
“When I was thrown into solitary confinement under the 90-day law, one of the things that kept me going was that one day I could convert the experience into a book.”
The book, would later become The Jail Diary of Albie Sachs and the first of 10 that he penned.
“At different times in my life I have felt a very strong compulsion to write a book.
“This is the tenth time it has happened and it is always triggered by special circumstances. I was eager to say something about the role of an activist judge. Our Constitution demands that judges be activists. There is still great unfairness and to achieve equality we need profound changes. The changes must be done in a fair manner and that is what interpreting the Constitution is about. I wanted to convey how judges undertake the task of being guided by the Constitution. In that sense judges are part of the process of emancipation and you are not neutral in the face of racism, corruption and abuse of power. You give everyone a fair trial but you are not neutral and take a stand.
“We spent six years on the Constitution and it was a very tough process with breakdowns over central conceptual issues.”
Among the challenges faced by those tasked with drawing up the Constitution included mass action, Chris Hani’s assassination and threats of an army coup. “We fought over every word and every comma but in the end got 90 percent support for the final draft of the Constitution.
“I think the story of the making of the Constitution needs to be fully told. That is a project I am heavily involved in for the next three years at least with books, films and electronic material.”
He said the main aim of this was to ensure that people could find out quickly about certain things entrenched in the Constitution such as the property clause, gender questions and customary law among others. “We want to make the materials of those available for the understanding of the process. In a sense it is a wonderful that the Constitution is taken for granted because it means we’ve moved into a completely different country. It’s good that the young generation are not carrying the burden that we carried under apartheid.”
That burden, said Judge Sachs, wasn’t just racism. It was detention without trial, extensive use of torture, books being banned and people being disenfranchised and not allowed to protest and limited freedom of speech.
“In that sense we are in a totally transformed country. What many young people are impatient about is taking the process to the next phase, beyond the political and legal rights and deal with economic inequality.
“I think our Constitution is strong enough to be revitalised rather than destroyed by this challenge. South Africans generally speak our minds and speak out very vigorously. In that sense freedom of speech is very real in South Africa.
“My writings were banned and it was a criminal offence to even possess books written by me. I wasn’t allowed to say or write anything for publication. My movements were restricted and I was thrown into detention without trial.”
“My telephone and advocate chambers were bugged, I was followed. These were normal features of our society then. If I saw somebody taking notes while I’m speaking before I would have assumed that they were sending it to the security police. Now, it is somebody who is actually interested in what I am saying or a journalist.
“When I was recovering from the bomb, lying in the hospital bed in London, I got a note saying ‘don’t worry Comrade Albie, we will avenge you’. I thought if we get democracy and the rule of law then that will be my soft vengeance, roses and lilies will grow out of my arm. My very first action coming out of hospital was to fly to Dublin and sit at the kitchen table of Kader Asmal and do a draft of the Constitution for the ANC. Working on the Constitution was part of my healing process and it made sense and losing my arm was not for nothing. It was to transcend what the other side was doing. I wasn’t unique in that, I was part of a movement,” said Judge Sachs.
He said that in the book, which has work that spans more than 25 years, he could see a continuity of themes. “The Constitution wasn’t just a document written by academics. It emerged from our pains, anxieties and our hopes. We had seen things that had gone wrong in other countries and we were determined to lay the foundations for continuing open democracy. The Nkandla decision has done an enormous amount to revitalise our democracy and it has strengthened Parliament.”
Judge Sachs added that the main message he hoped readers would take away from the book was to be proud of our democracy, use the vote, speak out for rights, defend the institutions of democracy and to enjoy being South African. “What gives me a great deal of hope is the strength of our institutions. We used to be told that democracy was not for Africa. Now we’ve had four general elections at national and local government. When the ANC lost power through the vote in key metros it accepted the outcome.”
