Long road to justice

Tom O’Sullivan speaks to Albie Sachs, a former ANC activust who is now a judge fighting for a new South Africa

At the age of 28 the young lawyer and ANC activist was imprisoned. At 31 he left South Africa. At 52 he was blown up and almost killed by the South African secret service, but at 55 Albie Sachs returned to his homeland and now, at 64, he is a constitutional judge at one of the most important moments for the new South Africa and its political and legal structures.

The African National Congress (ANC) has just been returned to power. Although as a judge Sachs is permitted no political affiliations, it is clear that his heart is still with the people he calls the “comrades in the struggle”.

The 1994 constitution, of which he was an architect, is in place, and he is one of the 11 judges whose job it is to make sure that the human rights principles underpinning it are not compromised.

With opposition parties attacking the ANC government for cronyism and raising fears of a new dictatorship, it is not an easy time to be custodian of a new constitution.

Sachs’ father was a trade union leader, whom he describes as a “remote” man who “fought the bosses, fought the government and fought my mother”. His mother worked for one of the ANC’s then leaders, Moses Katano.

So although the young Sachs wanted to be an adventurer and visit the moon, it was almost inevitable that he would end up getting involved in the anti-apartheid struggle in the 1950s.

His first action was a sit-in protest when he first joined the ANC as a young law student, but his name really came to prominence in 1963 when he was arrested, detained and held in solitary confinement for 168 days as the security forces tried to get information about his clients.

The resulting Jail Diary of Albie Sachs brought him a worldwide audience, but it also guaranteed that he could no longer practise law in South Africa. He left in 1966 and went on to lecture at universities in England, the US and Mozambique.

It was in Mozambique that the South African secret service caught up with him in 1988 and tried to kill him with a car bomb. He lost his arm, his liver was lacerated, one of his eyes was damaged and his eardrums were ruptured. Sachs had to learn to walk and to write again. When he could, he told his story in the Soft Vengeance of a Freedom Fighter.

Now Sachs is at the heart of the new South Africa and he is loving it. “When you have spent your whole life being against the public power, being a rebel dreaming of radical transformation and then suddenly you are at the apex of power – it’s lovely,” he says.

“It’s not because I am a poacher turned gamekeeper but because it is a continuation of the idealism. The constitution emerged after intense debate and discussion – millions of people were involved in different ways – and so the text that guides me and my colleagues is resonant with all the best values of our times.

“When you have spent a lot of your life destroying the evil structures of apartheid and the evil, cruel outlook that was involved, it is wonderful to have a chance to build and be creative and to find areas of harmony and constructiveness in life.”

For Sachs the key thing is to build a robust constitution. There are four main tenets underpinning the 1994 constitution: the advancement of human rights and freedoms; non-racialism and non-sexism; supremacy of the constitution and the rule of law; and universal adult suffrage. Overseeing this is the Constitutional Court – “on which hinges the future of democracy” in South Africa, according to former president Nelson Mandela. This court – the ultimate appeal court in South Africa – even has the power to overrule the legislature.

The majority of the 11 judges, including Sachs, were selected by the independent Judicial Services Commission, with the remainder chosen by Mandela in consultation with the Chief Justice in 1994. The judges serve for 12 years or until they reach the age of 70.

During the recent general election, opposition parties warned that if the ANC won more than 66 per cent of the vote it would have the power to alter the constitution and politicise the independent judiciary. The parties were raising the spectre of an ANC as authoritarian as its apartheid predecessors.

“The basic outcome of the election was a foregone conclusion, so to give the race some drama, the ‘two-thirds’ became an issue,” says Sachs.

He says he is not worried about threats to the constitution from the government. For him, the collapse of law and order is a much more pressing threat. There is a murder every 20 minutes in South Africa and Sachs, who is careful not to say anything that may leave him open to allegations of political bias or partiality, says the biggest challenge to the constitution comes from those who believe it gives too much protection to criminals while not enough support is given to the many victims.

In one of its first decisions in 1995, the Constitutional Court outlawed the death penalty and Sachs and his colleagues are under pressure to reverse that decision.

“A considerable section of the population want the authorities to crack down in a merciless way to deal with people who are themselves behaving in a merciless way,” says Sachs. “Victims have to get support but you don’t improve the lot of a victim by subjecting the suspect to electric shock torture – you are repeating the crime, not diminishing it, by doing things of that kind.”

The issue and dilemma obviously have broader resonances for Sachs, who knows the new South African judiciary is being studied closely for any signs of arrogance or revenge. Sachs knows that it must be seen to be absolutely neutral and dispassionate, judged by the most exacting of standards.

“One of the most distressing experiences in life is to be intensely idealistic to bring about change and then the very people who replace the old guard pick up the habits of the past, become authoritarian, think that because they have fought the good fight that what they do is inevitably good, and turn into the new oppressors,” he says.

“It was extremely important in South Africa to ensure that this did not take place. It could so easily have happened – it is all part of avoiding crude vengeance, on the one hand, and cronyism and power-craziness in those unaccustomed to governing and ruling, on the other.”

The Truth and Reconciliation Commission was part of that process – enshrined in the constitution – to avoid vengeance. It gave amnesty to some people who confessed to committing crimes under apartheid, and allowed some victims to find out how their family members or friends died. It was not universally supported – the family of Steve Biko, who was murdered in police custody in 1977, claimed it denied them human rights, but their appeal to the Constitutional Court was rejected.

But allegations of cronyism and corruption against the ANC have been common. And Sachs, as a former ANC leader – the most politically high-profile of any of the judges – has often been on the receiving end. Last month, in the most recent example, there was an attempt to force Sachs and four other members of the court to excuse themselves from a judgment in an appeal case brought by Mandela because of their “close ties” with the former president. The move was rejected.

“I and other judges must not allow ourselves to be unduly pressurised, to prove to the people who think we have too much of a background in the struggle to be honest judges. Nor must we lean over backwards in favour of our former comrades in the struggle to prove that we have not sold out.”

Sachs may have exchanged the political struggle of the apartheid years for the legal struggle for a new constitution and judiciary, but some South Africans are still caught in the same struggle they have fought for years: trying to make both ends meet. In some townships, black unemployment is above 40 per cent, and Sachs knows that many of the citizens that his court is designed to protect have seen little concrete economic or social improvement since the end of apartheid.

“We still have massive inequalities, which are very much associated with race,” he says. “But the sense of dignity, of being free in your country, of being free to speak your mind, free to move around, being recognised for what you are – that has been a huge achievement.

“The election was marvellous. People were willing to stand for hours to exercise their vote. There was this sense that everybody counted – you might be poor, you might live in a shack, but on this day you are a human being, a citizen. In a country where there has been so much denial of citizenship and dignity, these things are very important.

“But one of the problems confronting our court now is how to deal with social and economic rights – health and education – in a meaningful way,” he says.

People who spent many years fighting apartheid tend to have a long-term view of change. Sachs knows that his country has a long way to go before all of its citizens have a good standard of living and a safe environment. But he believes that the constitution is the first and most basic foundation. And it is the thing of which he is most proud.

“Perhaps I am captivated by my position,” he says, “but I really have that sense that political parties and figures come and go but the constitution rolls on forever.

“It is in the heart of politics to be passionate, and we have a passion. It is to build over the long term. And that is really a powerful and more seductive dream than immediate popularity and support.

“It’s not a false dream – it’s a necessity.”
Albie Sachs