Judge Albie Sachs

South African Freedom Fighter Exacts Soft Vengeance

Albie Sachs is one of South Africa’s most noted political activists and judges. Appointed by Nelson Mandela to the Constitutional Court of South Africa, Albie was among the group of 11 judges who certified the country’s groundbreaking Constitution after the first democratic elections in 1994. Sachs, who holds a law degree from the University of Cape Town and a Ph.D. from Sussex University, began his legal career defending victims of apartheid’s repressive laws. His work with the freedom-fighting movement, resulted in him being put in solitary confinement for nearly six months without trial and later went into a 24-year exile in England and then Mozambique, where in April 1988 he lost his right arm and sight in one eye due to a car bomb. Sachs, who retired in 2009, has received multiple awards, including the Tang Prize for the Rule of Law. He continues to write, teach and speak internationally about the South African experience in healing divided societies. Tokyo Journal Executive Editor Anthony Al-Jamie spoke with the eloquent freedom fighter Albie Sachs about his groundbreaking achievements and his views of the world today.

TJ: I wanted to talk to you about the Constitution of South African as I know you are very proud of that. What part of the Constitution are you most proud of?
SACHS: Well, I’m proud of the fact that we did it ourselves in circumstances where nobody gave South Africa a chance to have Black and White living together as equals– respecting each other. All predictions were of a bloody racial war and total collapse of the society and the economy. Yet it was getting the Constitution that actually enabled society to start making itself together; the fact that we could agree on the new foundations of the new society and then the fact that we got what turned out to be a really brilliant Constitution that has been held up as a model to the world. Maybe because under apartheid we had been denied every right the world could imagine. Apartheid impelled us to produce its exem- plary other, a Constitution based on notions of human dignity and unity in diversity.

TJ: When you put the Constitution together, did you study the constitutions of other countries?
SACHS: We did. We studied them. We had lived in exile in other countries all over the world and received advice from everyone, but in the end we decided we had to do it ourselves.

TJ: Were there any countries’ constitutions you drew from the most?
SACHS: I think we drew heavily from five constitutional orders: the United States–the classic constitution, basic separation of powers, but 200 years old; Canada–the Bill of Rights, the Charter of Rights... the Canadian Charter provided both the content and the format of fundamental rights in a modern era ... a very fine document; and from Germany, the idea of concurrent powers between the central government and the provinces. Even the idea of having a constitutional court came from Germany and having our upper house, not a directly elected senate, representing the executives of the provinces. So we took quite a lot from Germany. From India, we took the finance and fiscal commission. The questions of revenue–raising and distributing revenue are as important as the institutional formations and we took that from India. And then possibly most important of all: from Namibia we took the basic non-racial principle as a foundation for our new constitutional vision.

TJ: You mentioned the U.S. Constitution is 200 years old. What was the most obvious aspect of it being antiquated?
SACHS: Well, its basic foundation hasn’t aged; that is on the separation of powers. But a lot of the details were historically very specific to the American situation of states coming together and giving up their sovereignty to be in a greater union. The provisions of the Bill of Rights in the first and other amendments dealt with the pains the people felt after the British colonial occupation. In South Africa, we were in a very different era. We wanted to unite against the divisions created by apartheid and our Bill of Rights is much more comprehensive. It’s not simply telling the state, “Thou shalt not lock us up without a proper trial, invade our premises for search and seizure...” and so on. It’s got a number of rights consistent with the modern era, so our freedom rights, for example, are quite extensive, and include freedom from torture and violence from public or private sources. It happens to be particularly important for women and children who are really vulnerable in their homes. That’s now in our Constitution. We have a very expansive equality principle and it includes race, color, and creed but it also includes disability. It includes marital status. It includes sexual orientation. It’s very comprehensive. We have strong social and economic rights–the right to education and the right to housing, food and water are all included as basic rights. The right to a clean environment is included. There are strong children’s rights. So these are all features that are themes that corresponded to the demands of the late twentieth and early twenty-first century.

TJ: Did you abolish the death penalty in your Constitution?
SACHS: We didn’t do it explicitly in the text of the Constitution because we couldn’t get agreement. The old apartheid rulers couldn’t imagine a society without capital punishment, and Nelson Mandela and others who had been fighting for freedom couldn’t imagine that the state would continue to execute its citizens. We couldn’t postpone elections because we couldn’t agree on that, so we left it to the Constitutional Court to decide whether the value system of the new society permitted capital punishment and the court decided unanimously that the value system of the new Constitution prohibited capital punishment.

TJ: We still have capital punishment in the U.S., Japan, and many countries. Do you find that to be archaic?
SACHS: I find it to be very sad, very poignant and very archaic. The idea that the state can cold-bloodedly strangle somebody with a rope or poison somebody with an injection or shoot them in the head or pass an electric current through them just violates any notion of respect for human dignity and reduces respect for reverence for life. In Southern Africa, Namibia, Mozambique and South Africa abolished capital punishment and there are Asian countries and many European countries that have abolished capital punishment. I think most Latin American countries and Canada have, so it’s a worldwide development but not yet the universal way.

TJ: Do South Africans have the right to bear arms? Oscar Pistorius had arms in his home.
SACHS: No, that is certainly not a constitutional right. The right to self-defense is permitted in our law, but there are quite strict gun controls. Not many people can [own a gun]. It’s nothing like the U.S. situation where you can just go and buy a gun across the counter; it seems [in the U.S.] there aren’t even very thorough checks required, and you can even buy semi-automatic weapons. I think all South Africans find that astonishing–quite astonishing. I can understand that given the particular history of the nation, hunting is very significant for large sections of the population in the USA, but the free sale of guns strikes us in South Africa to be something that is quite astonishing.

TJ: How did you first come to know Nelson Mandela?
SACHS: I got to know his name when I joined a movement called The Defiance of Unjust Laws Campaign. I was a 17-year-old second year law student and one of a very small group of Whites who joined the campaign by Black people to fight racist laws. And the volunteerin-chief was a certain lawyer in Johannesburg called Nelson Mandela. Nelson Mandela then wasn’t Nelson Mandela. He was just another name. Then as a law student when I crossed in Cape Town whenever I went to Johannesburg, I would go up to the office of Mandela and Tambo, the first firm of Black attorneys in South Africa, just to pay my respects. This was in the 1950s. Later we would meet in the underground–very, very deep underground, and I remember one occasion after the ANC [African National Congress] was banned, we were under threat all the time and they were meeting literally underground–in somebody’s basement and very nervous. If the police caught us there: hundreds of years in jail. And coming down the steps was the tall figure of Nelson Mandela. We were tense and unsmiling but he had a big, beautiful Mandela smile, almost one of bravado, and that was the last I saw of him for nearly 30 years because of the time he spent in prison.

TJ: What was it like to see Mandela and the other prisoners being freed?
SACHS: Well, I was in exile in London then and we were absolutely jubilant. This was like a huge victory and I can remember that while we were dancing around some of the British anti-apartheid people had long faces. They were angry. How dare he be locked up for 27 years and we were dancing? It made me feel that sometimes the human rights movement has a long face and we should be willing to dance and accept moments of joy and moments of victory and not simply spend all our time shaming and denouncing. We spend a lot of time doing that but we also need time to celebrate when breakthroughs are made.

TJ: So what is it that made you think the way you do from a young age? Why were you focus on human rights instead of your personal wealth and personal gain?
SACHS: My focus was my folks. My mom was a typist for a very prominent Black opponent of apartheid, Moses Kotane, and she would say, “Tidy up. Tidy up. Uncle Moses is coming.” My father was the general secretary of the Garment Workers Union, a labor union. So I grew up in a very activist environment and a very anti-racist environment, but I hated my parents assuming that I would automatically follow in their footsteps; and it was only in my second year at university, where I met a young anti-racist crowd, that I joined wholeheartedly in the struggle.

TJ: I understand you were once described by one of your teachers as a “dreamy boy.” Do you still consider yourself to be a dreamy boy?
SACHS: I hope so.

TJ: What do you dream about the most these days?
SACHS: I dream about how extraordinary the world is and what fun it is to be on the planet with all the pain and just being engaged in making the world better some way or another.

TJ: I understand you have three children: with two in their 40s and one aged seven. What do you hope for your seven-year-old?
SACHS: I hope that when he grows up he is as irreverent, challenging, curious and full of fun as I like to think my generation was. We were in a very grim country in a very grim society, but we refused to be grim ourselves and so far, if the first seven years are anything to go by, he’s going to be exactly that.

TJ: Does your son attend public school? How are public schools in South Africa?
SACHS: Well, Oliver is his name. We joke that he was named after the airport in Johannesburg–Oliver Tambo Airport. But he was actually named after Oliver Tambo, and he is going to a public school. It’s excellent. I wish I could say the same of all public schools; in poorer parts of the country the quality of the schools is quite abysmal. It’s a source of great attention. Legal cases are even being instituted to help guarantee certain fundamental rights to basic education.

TJ: What is the challenge? What is preventing it from flourishing?
SACHS: If I knew the answer then I might be president of South Africa. We are battling to find the answer. I don’t think there is a single answer. It’s a whole range of things: it’s not simply a lack of money. Resources have been thrown in. And it’s not been through lack of trying different methodologies. We had a period of what was called outcomes-based education but it just didn’t work. Not that the principle was wrong, but the methodology wasn’t appropriate and upgrading the education system may be the number one problem for getting the full transformation we need in our country.

TJ: So is the delivery of education a challenge? Is getting good teachers in certain areas an issue?
SACHS: It ranges from such elementary things as people being taught in mud huts without toilets and running water and electricity to school books not being provided on time to inadequately trained teachers. It’s everything. Good schools are outstanding in South Africa; some public, some private. The public schools used to be completely racially segregated. Now they are deracialized, integrating and providing by and large a very, very good, classy education to people from all different backgrounds. But it is still not reaching the great mass of South Africans.

“...the human rights movement has a long face and we should be willing to dance and accept moments of joy and moments of victory...”

TJ: Do you think technology will play a big part in making that happen?
SACHS: Yes, technology already is. It’s amazing, for example, how cell phones have spread in South Africa. It’s huge. I’m one of the few people who don’t have a cell phone. It’s not that I can’t afford it. It’s just for one reason or another, I like my private, mental space, but millions of poor people have cell phones and they’re using them not only for communication but for information. Cell phones, computers, and electronic mechanisms can do an enormous amount to transform education in South Africa.

TJ: What about worldwide education in general? What do you feel is lacking?
SACHS: I think to me the biggest thing is not math, science or technique, important though they are. The core thing is a kind of pedagogical morality... a set of values, and it’s not values associated with any particular political belief or any particular faith community. They may contribute but certain values of human interdependence–human relationships with each other of respect, of dialogue, of pluralism, and of diversity. I find these themes are not adequately included in education systems and they have to be included not simply as texts that you read and then pass an exam on, for example, you mentioned the three elements of dialogue. It’s the way education itself functions: relationships within education, relationships between parents themselves and parents and schools, between teachers and pupils, between students themselves, and so on. For me, that is the biggest thing lacking.

TJ: So intercultural relations and similar types of issues are lacking?
SACHS: Yes. I think intercultural relations, civility, dialogue, and a mode of resolving tensions and disputes through listening as well as talking are underplayed.

TJ: What are your thoughts about war? I know you believe in soft vengeance. Is there value in war?
SACHS: I think war sometimes is forced upon you and so I’m not a total pacifist. I am by inclination, but not by philosophy. Sometimes you fight and sometimes you use armed force, but it’s going to be only when there is no other way and it’s got to be targeted. It’s got to not supplant or replace dialogue and talking, so it’s got a place but a very circumscribed place in our society, unfortunately.

TJ: You must be concerned with the current situation with all of the wars going on all over the world.
SACHS: It’s very, very concerning. Very worrying. Sadly, my first memories of growing up are of World War II, so in that sense I have grown up with war around me. I had uncles in South Africa who were called up north, which means they were called to fight against Hitler up north. I lost large numbers of my family in Eastern Europe to the genocide: to the Holocaust, so the tragic dimension of war is something very strong in my consciousness. But I think we have made huge progress in the world since then. I think the world in that sense is far more civilized now then it was when I was a child. We have made progress and it’s important to say that–otherwise you surrender to cynicism and you’re left with more war.

TJ: Do you have a personal hero?
SACHS: I don’t like the idea of heroes. I am often introduced to audiences in the United States as a hero because American audiences love heroes and I look like a hero. I say a hero is a sandwich you can get in New York and it’s in a sense invidious because the quality of society comes from millions of small heroes–little people contributing. We have a few exemplars: marvelous individuals like Nelson Mandela, but they are representative of something. They are not pulling humanity forward, but striding at its head.

TJ: I understand you recently won the Tang Prize. Can you tell us about it?
SACHS: It’s called the Asian Nobel Prize. It carries a million dollar award plus another $350,000 for research. It’s for my support for the rule of law. I got the information about two months ago. I was actually at a conference at the Convention Center Hotel in San Diego and I almost deleted it. You know how you get these e-mails saying, “Congratulations. You won a prize!” and they give a huge figure and then they ask for the bank details? But this one didn’t ask for bank details and I read and re-read and re-read it and finally felt this looks genuine!

TJ: Congratulations! That’s fantastic! What advice would you give to someone who is trying to make a difference fighting for a cause and is feeling demoralized but knows what they are doing is very important?
SACHS: Be as firm as you can inside yourself and be as connected as you can with other people outside. Don’t give up on youself because you’re working with a team, but invest what you’ve got, bounce it off others and work together with others.

TJ: Was there anything positive that came from your struggles from being in prison?
SACHS: The prison part, I would say, was almost totally destructive. It made me very aware of how limited humanity is and also how insensitive many people involved in the law are about what they are responsible for. You are segregating off the bad people and maybe there is no other way of doing it but you are also segregating off any chances of their recovering their humanity. You are creating a system that desensitizes human beings and that can’t be good for society. It’s a kind of negative lesson I learned. I learned how important it is to respect human association; human contact. Again, it was a negative lesson. I got a piece of advice once from a prisoner who had shoes miles too big for him. He was going clop, clop, clop. As he came past me sweeping, he whispered to me, “Take it easy. Take it slow.” He wasn’t allowed to communicate with me and quite often in trying moments in my life, I’m prepared to say, “Take it easy. Take it slow.” tj

The complete article can be found in Issue #276 of the Tokyo Journal. Click here to order from Amazon.