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216 pages

English

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This stirring collection of essays and talks by activist and former judge Albie Sachs is the culmination of more than 25 years of thought about constitution-making and non-racialism. Following the Constitutional Court’s landmark Nkandla ruling in March 2016, it serves as a powerful reminder of the tenets of the Constitution, the rule of law and the continuous struggle to uphold democratic rights and freedoms. We, the People offers an intimate insider’s view of South Africa’s Constitution by a writer who has been deeply entrenched in its historical journey from the depths of apartheid right up to the politically contested present. As a second-year law student at the University of Cape Town, Sachs took part in the Defiance Campaign and went on to attend the Congress of the People in Kliptown, where the Freedom Charter was adopted in 1955. Three decades later, shortly after the bomb attack in Maputo that cost him his arm and the sight in one eye, he was called on by the Constitutional Committee of the African National Congress to co-draft (with Kader Asmal) the first outline of a Bill of Rights for a new democratic South Africa. In 1994, he was appointed by Nelson Mandela to the Constitutional Court, where he served as a judge until 2009. We, the People contains some of Sachs’ most memorable public talks and writings, in which he takes us back to the broad-based popular foundations of the Constitution in the Freedom Charter. He picks up on Oliver Tambo’s original vision of a non-racial future for South Africa, rather than one based on institutionalised power-sharing between the races. He explores the tension between perfectability and corruptibility, hope and mistrust, which lies at the centre of all constitutions. Sachs discusses the enforcement of social and economic rights, and contemplates the building of the Constitutional Court in the heart of the Old Fort Prison as a mechanism for reconciling the past and the future. Subjective experience and objective analysis interact powerfully in a personalised narrative that reasserts the value of constitutionality not just for South Africans, but for people striving to advance human dignity, equality and freedom across the world today.

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Human Rights

Political Science

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Publié par	WITS University Press
Date de parution	01 novembre 2016
Nombre de lectures	0
EAN13	9781776140008
Langue	English
Poids de l'ouvrage	5 Mo

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We, the People
By the same author
The Jail Diary of Albie Sachs (Harvill Press, 1966)
Stephanie on Trial (Harvill Press, 1968)
Justice in South Africa (University of California Press, 1974)
Sexism and the Law (Martin Robinson, 1979)
Soft Vengeance of a Freedom Fighter (Grafton, 1990)
Protecting Human Rights in a New South Africa (Oxford University Press, 1990)
Advancing Human Rights in South Africa (Oxford University Press, 1992)
The Free Diary of Albie Sachs (Random House, 2004)
The Strange Alchemy of Life and Law (Oxford University Press, 2009)

Published in South Africa by:
Wits University Press
1 Jan Smuts Avenue
Johannesburg, 2001
www.witspress.co.za
Copyright © Albie Sachs 2016
Published edition © Wits University Press 2016
First published 2016
ISBN: 978-1-86814-998-8
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the publisher, except in accordance with the provisions of the Copyright Act, Act 98 of 1978.
All images remain the property of the copyright holders. The publishers gratefully acknowledge the publishers, institutions and individuals referenced for the use of images. Every effort has been made to locate the original copyright holders of the images reproduced here; please contact Wits University Press at the above address in case of any omissions or errors.
Cover photograph © Steve Gordon ( www.musicpics.co.za )
Edited by Hazel Cuthbertson
Proofread by Elsabé Birkenmayer
Indexed by Marlene Burger
Designed and produced by Fire and Lion
Acknowledgements
Mind-wrestling with Alex Dodd has been a delight. Thanks, Alex; you are strong, agile, nuanced and stylish – the perfect editor. And conceptual engagement with Corina van der Spoel has been equally pleasurable. Thanks, Corina; you are simpatica, calm, focused, deft and authoritative – the perfect project manager. Between the two of you, what would have been just thousands and thousands of words became a book.
1988
Nineteen eighty-eight, and it’s raining, drizzling – nothing unusual about that in Ireland. I’m sitting in the kitchen of Kader and Louise Asmal in suburban Dublin, feeling very, very at home – nothing unusual about that. And we’re doing work that we know is historic. It was one of those ‘pinch-me’ moments (maybe the first real ‘pinch-me’ moment for me) – knowing that we were entering into a whole new phase, not simply denouncing, imagining, mobilising; but beginning to craft the foundations of a new society. What was unusual was that, for that whole weekend, Kader didn’t smoke once inside that house! The way we put it, we were converting the Freedom Charter into an operational document that would protect the rights for which people in South Africa had been fighting.
2016
I was rushing to catch my plane at the airport when a middle-aged African man blocked my path and flung his arms around me. ‘Thank you, thank you,’ he kept repeating. ‘It wasn’t me,’ I interrupted, ‘I left the Court some years ago.’ But he kept his grip and carried on offering thanks. I had to pull myself away to reach the gate in time. But then as the plane lifted off my heart swelled with emotion. The Constitutional Court had ordered the President to pay back the public funds overspent on his private home. There was hope. Millions of ordinary South Africans were celebrating. This book is dedicated to them all. It is they who ensure that the Constitution lives on, deeply rooted in the realities and ideals of the nation.
Contents
FIGURES
INTRODUCTION
1. IN THE BEGINNING
The Future of Multiculturalism in South Africa: The vision of the Constitution
The Original ‘Pinch-me’ Moment
2. HOPE AND CAUTION IN EXILE
The First and Last Word – Freedom
3. WE HAVE TO MISTRUST OURSELVES
Preparing Ourselves for Power
Perfectibility and Corruptibility
4. INVENTING A CONSTITUTION
South Africa’s Unconstitutional Constitution: The transition from power to lawful power
5. WITH CLEAN HANDS AND WITHOUT SECRETS
Why I Supported Amnesty
Meeting the Man who Organised a Bomb in my Car
Soft Vengeance
6. RECONCILING THE PAST AND THE FUTURE
Archives, Truth and Reconciliation
The Place Next Door to Number Four
Free Spirits and Ravaged Souls
Towards the Liberation and Revitalisation of Customary Law
Values, Nation Formation and Social Compacting
7. LIVING CONSTITUTIONAL LAW AND UBUNTU
Constitutional Court Simulation, Case No. 2: The constitutionality of the death penalty
A New African Jurisprudence: From abstract judicial rulings to purposive transformative jurisprudence
Equality Jurisprudence: The origin of doctrine in the South African Constitutional Court
8. MORE THAN CRUMBS FROM THE TABLE:
ENFORCING SOCIAL AND ECONOMIC RIGHTS
Judge Not, Lest Ye Be Judged
Liberty, Equality, Fraternity: Bringing human solidarity back into the rights equation
9. STRUGGLE CONTINUES
Nothing About us Without us: Disability
From Refugee to Judge on Refugee Law
A Conversation about the Sacred and the Secular: Same-sex marriage
Getting the Last Laugh on Rhodes
10. ARE THE BEAUTIFUL PEOPLE BORN?
United in Diversity
Are the Beautiful People Born?
Cases Cited
Sources
Index
Figure 1: This portrait of Albert Luthuli by struggle photographer Eli Weinberg used to be displayed in modest homes throughout South Africa. Luthuli was president of the ANC from 1953 until his death in a restricted area in 1967. In 1958 he worked with the ANC’s then Secretary General Oliver Tambo on drafting a new constitution which prefigured the organisation opening its membership to all. Through his integrity, courage, thoughtfulness, openness, warmth and lack of personal ambition, Luthuli became the model of what a president should be.

Figure 2: Oliver Tambo as a young articled clerk in the 1950s, before he and Nelson Mandela went on to set up the first black legal partnership in Johannesburg.

Figure 3: Albie [back], a second-year law student aged seventeen, gives the ANC thumbs-up salute as he is arrested, along with Hymie Rochman [front left], and Mary Butcher [Turok] [half hidden], for sitting on a bench marked ‘non-whites only’ at the Cape Town General Post Office during the Defiance of Unjust Laws Campaign in 1952. The magistrate declared that he was a juvenile and sent him home to the care of his mother.

Figure 4: Albie, aged 21 in January 1967, after being admitted as an advocate of the Supreme Court of South Africa, Cape of Good Hope Provincial Division.

Figure 5: Albie in exile during a visit to York, England, in 1967, where he had gone to thank the Joseph Rowntree Charitable Trust for a stipend which enabled him to do a PhD at Sussex University.

Figure 6: Albie speaking to poets, writers and photographers in his apartment in Maputo, c. 1980.

Figure 7: Albie at the ANC conference in Kabwe, Zambia, in 1985, introducing the ANC’s Code of Conduct forbidding the use of torture on captured enemy agents. On the far left is Oliver Tambo, acting president of the ANC, and next to him, Tom Nkobi, the organisation’s treasurer general. Zambian troops surrounded the building to protect it from possible commando raids by South African forces.

Figure 8: Albie marching on May Day in newly independent Mozambique in the late 1970s under the banner of the South African Congress of Trade Unions (SACTU). The ANC had an official office in Maputo but was not allowed to conduct political activity in the country. The only work it did publicly was attending funerals of members who had died, mostly as a result of actions by South African security forces, and cleaning the graves of comrades on 16 December each year. Members were permitted, however, to march under a SACTU banner.

Figure 9: Memorial gathering to honour Ruth First, killed in August 1982 when opening a parcel bomb in her office in the Centre for African Studies, the building in the picture. Albie is sitting in front of Ruth’s picture, which is below that of Samora Machel. Ruth’s husband, Joe Slovo, is seated to the right of the rector of Eduardo Mondlane University, Fernando Ganhao. Eduardo Mondlane, who had studied at the University of the Witwatersrand, was the founder and first leader of FRELIMO. He was killed by an assassin’s bomb in 1969.

Figure 10: Albie on the pavement moments after his car exploded in Maputo, Mozambique, on 7 April 1988, causing him to lose most of his right arm and the sight in one eye.

Figure 11: Albie hugs Dorothy Adams at the Young Vic Theatre in London after a benefit performance of The Jail Diary of Albie Sachs had been put on by the British theatre community to assist him in his recovery from the car bomb attack in 1988. Adams had whistled to him while both were in solitary confinement in Maitland prison 23 years earlier. Peter McEnery of the Royal Shakespeare Company played Albie, while Simon Callow and two other actors who had played him in previous productions took other parts on this occasion. One of the other actors, Matthew Marsh, was to play Eugene de Kock in another play some decades later.

Figure 12: Albie with Louise and Kader Asmal and their sons Rafiq (left) and Adam in 1988 at their home in Dublin, where he and Kader prepared a draft Bill of Rights based on the principles of the Freedom Charter.

Figure 13: Chris Hani greets Cheryl Carolus as Albie ascends the platform of the University of Durban-Westville Sports Hall in July 1991 just after being elected to the National Executive Committee at the ANC’s first lawful conference on South African soil after more than thirty years of forced secrecy, imprisonment and exile.

Figure 14: The ANC delegation disperses after having a group photograph taken at the Convention for a Democratic South Africa (CODESA) negotiations, c. 1992.

Fig