It is a unique career trajectory from freedom fighter to respected member of the Constitutional Court of South Africa, and one that offers Justice Albie Sachs an unrivalled view of the role that the law offers in healing society’s wounds. It was for this reason that the veteran civil rights lawyer joined a debate on the usefulness of the global proliferation of ‘truth’ commissions at the recent International Bar Association conference in Durban, South Africa, from the South African Truth and Reconciliation Commission (the commission) to Rwanda’s War Crimes Criminal Tribunal and the Saville inquiry into the Bloody Sunday massacre in Northern Ireland.
Speaking to The Lawyer after the session, Mr Justice Sachs argued that, with 25 such bodies at work around the world, such legal tribunals were an idea that had come of age. “For me, the critical thing about the truth commission is that it puts faces and real human emotions – fears, voices and a humanity – to what could otherwise be seen as a desiccated narration of statistics and events,” the African National Congress (ANC) activist argues.
The most ambitious and wide-reaching template for the various tribunals to date has been the commission, set up in 1995 under the chairmanship of Archbishop Desmond Tutu. Sachs was an active player in the negotiations that led to the post-Apartheid constitution that established the commission to look at the crimes of that era.
But why the need for a special court, distinct from the workings of the criminal justice system, in the first place? “If you want the truth to come out spontaneously and freely, you need another kind of system, away from the rigid and impersonal process of the court,” responds Sachs. “But the two systems must go side by side. You need the prosecutions, the courts of law and the truth commissions in tandem.”
Sachs was no bit-part player himself in the liberation struggle in South Africa. His political activism and his work as a defence lawyer brought him to the attention of the authorities early on in his career.
As a young lawyer he was twice detained without trial and placed into solitary confinement by the security police. It was an experience that he recounts in his memoirs The Jail Diary of Albie Sachs, which was made into a successful play and shown in London. He was then forced into exile in England, where he taught law at Southampton and Cambridge University throughout the 1970s. In 1977 he became Professor of Law at the Eduardo Mondlane University in Maputo, Mozambique.
Ten years later Sachs, then a leading member of the ANC, was the victim of a horrendous car bomb attack by agents of South Africa’s security forces in Maputo. He was out for a leisurely jog on the beach when he opened his car door and a massive explosion threw him 30 feet in the air, destroying his right arm, embedding shrapnel in his body and causing him to lose his sight in one eye. Miraculously he survived and subsequently returned to the UK.
Would it have been possible for the criminal justice system to deal with the crimes of Apartheid? “It just couldn’t have coped,” replies Sachs. “You wouldn’t have had the evidence, the tales, the prosecutors – it would have clogged up the prosecution system for years.” But he argues that the reason for setting up the commission was not just because the “instrumental problems” of processing the alleged crimes were so insurmountable.
“The commission itself was necessary to get the country moving forward,” states Sachs. “[It was needed] to get acknowledgement of the crimes, so that the people who had been responsible for the terrible deeds could come forward, and to try to encourage them to do that. But it was also to enable the victims to tell their stories in a free atmosphere.”
Set up as a centrepiece of Nelson Mandela’s post-Apartheid government, the commission’s role was “a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation” after more than three decades of apartheid. The Amnesty Committee heard more than 7,000 applications and granted 643.
In the end, Sachs believes that the huge exercise, which delivered its 3,500-page report in 1998 and officially closed last year, still has a significant and positive effect on the country’s psyche. “It had a huge impact, reaching deep into the soul of everybody,” he says. “It wasn’t just a trial process, but there it was on the TV screens; the press talked about it and it couldn’t be ignored.”
Was there a defining moment for him in the tribunal’s three years of operation? He recalls watching a police officer “and one of the worst interogators and torturers on the Western Cape” weeping when asked by one of his victims to describe how he had tortured him by placing wet bags over his head. “The victim, who was then a member of parliament, asked how human beings can do that to their fellow human beings,” the judge recounts. “This man who formerly exercised the power, almost literally, of life and death over his victims just broke down and cried. In that you just saw the destruction of that whole arrogant racist power and secret police power.”
Since its report came out in 1998, the commission has become a prototype for other countries seeking to rebuild order and find justice after periods of war or tyranny.
So how does any inquiry, such as the Bloody Sunday inquiry for example, avoid being overwhelmed by the fraught history of the wider political problems? Sachs answers by reference to the South African experience, which he points out “didn’t focus on the whole of Apartheid”. Instead it limited itself to looking at the crimes committed under the regime on all sides. For example, the commission condemned the reprehensible conduct of the ANC’s own guerrilla fighters in its Angolan prison camps in the 1980s.
According to Sachs, the tribunal’s legacy is an official history that is necessary and painfully uncomfortable for many. “The perpetrators had ignored a lot of what they did. There’s no scope for denial in the future,” he says. “Many bodies were recovered which otherwise would have remained undiscovered.” He also believes that there is a value in a court of law providing a forum for people “coming forward and breaking the terrible silence, whether it was the victims who haven’t been heard before or the perpetrators acknowledging what they had done”.
Both sides of the struggle found it difficult to face the truths uncovered by the commission. For example, former state president FW De Klerk won a court action forcing the commission to delete findings about his complicity in murders and disappearances. The ANC government also took the commission to court in a failed attempt to block publication of its indictment of the routine torture of suspected agents and for needless civilian casualties. In particular, the commission’s stance that human rights violations were abuses even when the cause was just was not backed by senior figures in the government, including the president, Thabo Mbeki.
Sachs believes that the model of the truth commission has a more important role than the criminal trial, “in helping to develop a culture of respect”. He argues: “In a sense, everybody kneels before the truth. Not that everybody was equally candid, but there was an acknowledgement of the centrality of being open and honest. It was very important for the nation.”
Geoffrey Robertson QC recently argued that the acid test for international law was, in the context of the International Criminal Tribunal for the Former Yugoslavia, whether The Hague court was prepared to acquit Slobodan Milosevic if the evidence of his guilt was not forthcoming. It is a sentiment that Sachs backs to the hilt. When he wrote his account of recovering from the bomb attack in the 1980s, he had problems coming up with a title for his memoir, but eventually settled on The Soft Vengeance of a Freedom Fighter. “They eventually caught the person who put the bomb in my car,” he explains. “I said that if that man was ever put on trial and was then acquitted, that would be my own ‘soft vengeance’, because it’s more important to live in a country where due process of the law operates rather than to send one particular villain to jail.”
|Albie Sachs – from freedom fighter to High Court judge|
Albert Louis Sachs was born in Johannesburg on 30 January 1935. He studied law at the University of Cape Town and started his legal practice as an advocate at the Cape Town Bar in 1957, working mainly in the civil rights sphere.
His work as a civil rights activist, and in particular his representation of those arrested under the Apartheid laws, brought him to the attention of the authorities and led to him being twice detained without trial by the security police. On 1 August 1963 he was arrested under the notorious ’90 days law’, which allowed a person to be detained without charge for that period. On his 90th day he was freed, but only for a few minutes, as before he left the police station he was arrested again and held for another 78 days. During his incarceration – as recounted in his book The Prison Diaries of Albie Sachs – he was not physically tortured, unlike other prisoners, but nevertheless, every kind of psychological device was used to elicit information about fellow anti-Apartheid campaigners.
In 1966 Sachs went into exile in England. He completed a PhD at the University of Sussex and taught law at the University of Southampton, before going on to teach at Cambridge University. In 1977 he took up the position as professor of law at the Eduardo Mondlane University in Maputo, Mozambique. He later served as director of research in the Ministry of Justice. In 1988 Sachs was almost murdered by a car bomb in Maputo, which was placed by agents of South Africa’s security forces. His right arm was blown off and he lost the sight of one eye.
He returned to the UK after the attack and, in 1978, Sachs became the founding director of the South Africa Constitution Studies Centre, based at the Institute of Commonwealth Studies at the University of London. In 1992 the centre moved to the University of the Western Cape, where Sachs was made professor extraordinary. He was also appointed honorary professor in the Law Faculty at the University of Cape Town. He took an active part in the negotiations for a new constitution as a member of the Constitutional Committee of the African National Congress and of the National Executive of that organisation. He is currently a judge of the Constitutional Court of South Africa.