In a four-part lecture delivered as part of the Oliver Tambo Centenary Series, Former Justice ALBIE SACHS tackles different aspects of the Constitution that are tied in to critical issues facing the country right now. In part three we take a look behind the drafting of the Constitution. Many people horrified by current political developments in South Africa are reflecting negatively on the Constitution, some of them quite harshly. I think we increase the fallout when, instead of standing on the achievements of the past, we trample on them. We should be building on them. Far from the Constitution being the source of our problems, it provides the basic mechanism for dealing with them.
I didn’t sleep the night before the actual constitutional negotiations started. It was 1992, and the prospect of spending days on end in the gloomy, sprawling building near the Johannesburg airport grandiosely entitled the World Trade Centre was not enticing, even if it was slightly enlivened by a banner proclaiming CODESA (Convention for a Democratic South Africa). Yet what kept me awake was not the cheerlessness of the venue. It was fear. My deep dread was that, after all the generations of struggle – in my case, working as an advocate by day and in the underground at night, then spending days, weeks and months in solitary confinement, with sleep deprivation thrown in, followed by 24 years of exile, seven as a stateless person, and being blown up by an apartheid bomb, losing my arm and my sight in one eye – my terror was that we would give away in a few weeks at the negotiating table all the gains we had won through strenuous travail over the decades in the trenches. I thought of my close comrades who had been tortured to death or assassinated: Solwandle Looksmart Ngudle, Elijah Loza, Babla Saloojee, Ruth First and Joe Gqabi. Would we betray their memory?
Watch: OR Tambo Lecture by Albie Sachs, UWC: 25 April 2017
I think back to that time when I hear passionate young activists today speaking about how the Constitution was made. As they see it, at some key moments Mandela got together with certain captains of big business to assure them that, provided everyone got the vote, there would be nothing in the new Constitution to rock the existing economic system or require massive restoration of land to the people. The kinder version is that Mandela’s position was weak and he had no other option. Less generously, he was too naïve and trusting. More critically, he was simply a sell-out. These claims reduce to a simple all-defining chat by a few top personalities what was in fact an arduous, six-year-long violence-beset struggle over the Constitution, with a total breakdown and one severe crisis after the other. The role of millions of people who participated in different ways is simply eliminated.
The actual role that Mandela played at CODESA is completely misrepresented. As I have explained in my first two Oliver Tambo Centenary Lectures [See: here and here] the basic non-racial, democratic design of our Constitution came not from Mandela but from Oliver Tambo. Mandela’s role in negotiations was in fact to be the public face of the ANC and to ensure that the negotiation process remained firmly on track. Those of us who were there have to tell our story. The making of the Constitution was in fact a huge act of decolonisation in South Africa. It tore down the pillars of white domination in the political sphere and provided the instruments for achieving the next stage of liberation, namely, economic and cultural emancipation.
Every constitution-making project has a central drama
It is surprising that the central drama of the South African constitution-making project is not known. It wasn’t over the economic system, but over who should have the right to determine it. It wasn’t over a unitary state versus federalism – that was important but relatively secondary. It was in fact over an issue that had been raised while we were still in Lusaka and that is almost forgotten today: group rights, as Pretoria had demanded, versus majority rule and a Bill of Rights, as the ANC had insisted on.
As the struggle against apartheid had visibly gathered strength inside South Africa and worldwide denunciation of the system had intensified, proposals for new constitutional arrangements in South Africa had come pouring in from all sides. Invariably they had been based on forms of power-sharing between whites and blacks. The tenet had been that, given the deep historical and cultural cleavages in South Africa, the only way that the white minority could be expected to surrender their monopoly on power was if they were granted secure constitutional protections against a black majority rule.
Tambo’s rejection of this approach had been complete. He had insisted that we start to look at ourselves as citizens of a new, free, united and democratic South Africa, and not base our structures of government on race or ethnicity. This meant accepting the democratic principle of majority rule. He had accepted, however, that many whites were concerned that their rights were going to be disregarded in the same way that they had disregarded the rights of others. They would be constitutionally protected, but not through group rights, not through having whites representing whites in Parliament, Zulus – Zulus, not through having three Presidents, not through cantons, but through a Bill of Rights.
Tambo had built on research done by Pallo Jordan in Lusaka in 1986 on the constitutional proposals that had been coming in. Pallo had suggested that the ANC’s answer take account of the fact that the organisation had supported a Bill of Rights as far back as 1922. It had then issued a further Bill of Rights document in 1944 as part of African Claims, a response to Roosevelt and Churchill’s Atlantic Charter. The Freedom Charter of 1955 could also be seen as a conceptual precursor. And Tambo had said: this is the answer. You protect people from abuse not because they’re black, not because they’re white, not because they’re in the majority, not because they’re in the minority, but because they’re human beings. We have to start looking at everybody as a human being, as a person with fundamental rights. That was the battle we had to fight – that was the central drama of the struggle over South Africa’s new Constitution.
At CODESA there was a profound clash between two different concepts of South Africa – of what the country would be like and how we would get there. The South African government was saying: “We negotiators sitting round the table at Kempton Park must draft the Constitution and then put it to a referendum to get legitimacy.”
And the ANC was responding: “No, we have to have a Constituent Assembly elected by the whole nation. Our first great act of self-determination as an inclusive nation will be to choose the people who will decide what our Constitution should be.”
The regime answered: “No, with majority rule, we won’t stand a chance.”
And our response to that was: “We can agree in advance to certain basic principles of democracy and an open society that we want in the Constitution – not for our side, not for your side, but for the people of South Africa. These are things that every progressive country needs and we will agree to them in advance. And we will have elections by proportional representation to make sure that everybody can get into the Parliament that will draw up the Constitution, even the smallest groups. A two thirds majority will be required and we will create an independent Constitutional Court to ensure that the principles are agreed to.”
The regime wouldn’t agree to that. They said: “We are a nation of groups and we need power to be shared between three Presidents.’” They called that “consociational democracy”. So it would be Mandela for six months, De Klerk for six months and Buthelezi for six months, and the three of them would have to govern throughout by consensus. This would effectively have given the power of veto to each President, and instead of the Constitution being the doorway to transformation, it would have become the barrier to change. It would have been a total disaster. So that is why there was a breakdown. There were ethnically based group rights and power sharing on the one hand, and on the other, there was the Oliver Tambo vision of full equal citizenship for everybody and a Bill of Rights protecting all South Africans.
The Constitution-making process turned out to be protracted and heavily contested. Outside our doors constant violence was being instigated or condoned by organs of the State. Third Force activity was rampant in various parts of the country. In KZN in the four years from 1990 to 1994, low-grade civil war between IFP and ANC forces took more lives than had been lost in the whole country through political violence in the eight decades from 1910 to 1990. There were bloody battles in the East Rand between MK young lions and armed units of AZAPO youth. The AWB crashed with an armoured car into the CODESA proceedings at the World Trade Centre at Kempton Park. IFP cohorts, armed with what they called cultural weapons, marched from hostels and created mayhem in nearby townships. People were thrown off trains. Fortunately, the Peace Accords brought people together in the communities. They played a vital role not only in pre-empting further violence but in bringing tens of thousands of people from most diverse backgrounds directly into a nationwide process of safe-guarding the endeavours being made at Kempton Park.
A period of breakdown
I’ll share a personal story that offers a glimpse of how tense and complicated the inner workings of the negotiations were. It’s 1992 and the NEC is meeting. I’m one of the members and right at the beginning of the meeting I propose that we vote on a formal motion introduced by myself and seconded by Dullah Omar that the ANC withdraw from the negotiations. Now there’s a bit of a stir, because I’m seen as one of the most “pro-negotiations, pro-peace-with-the-enemy” group. Once, when speaking at a report-back meeting at Fort Hare, I had said, “We have two groups in the ANC; those who see a trap in every suggestion made by the other side, and those who see an opportunity.” I had argued for seeing and seizing opportunities and making the most of them. And people had responded, “No, Comrade Albie, we don’t have two sides in the ANC, we speak with one voice.” So I had been seen as the pro-opportunity guy, even though I had obliged critics by saying we must look at every proposal with two eyes, one looking for an opportunity and the other for a trap.
But now here at the NEC meeting I was saying we’ve got to withdraw. And all the comrades who had been very uncomfortable with the idea of negotiations to begin with, were lining up to cheer me on. Dullah and I were making the point that the government was not serious about change. “Our political prisoners are still on Robben Island or in other prisons – they have gone on hunger strikes and we are letting them down. The IFP are marching through the streets with what they call cultural weapons – machetes, spears, pangas, kieries with nails in them – streaming out of the hostels and murdering people in neighbouring communities. Until these things stop,” I said, “we should withdraw from negotiations. We don’t say we’re withdrawing totally from the process, but only until they release all political prisoners, control the hostels and ban marches with lethal so-called cultural weapons. And we give them three easily achievable objectives as proof of good faith so that we can resume negotiations.”
It had been clear in our day-to-day negotiations that the other side were now playing, as they called it, “hard ball”. Minister of Justice Kobie Coetsee had reintroduced capital punishment unilaterally, knowing that the ANC was totally against it. Tertius Delport had been combative and obstructive at meetings. My experience as a lawyer had told me there were moments when you were negotiating with the other side and getting nowhere, that you said, “See you in court”. This was the equivalent moment.
So immediately people rush up to the microphone: “No, we must carry on; we mustn’t lose this opportunity.” Quite a few people support me. Tea break comes and there are many comrades crowding around me. I’m not used to being a popular leading figure in the ANC. Usually, I’m one of the quiet ones. But now it’s, “Yeah, we support you Comrade Albie…” But after the break Nelson Mandela says, “Comrade Albie, you’ve raised a very important issue. But I see that there are 15 people who have spoken against the resolution and eight in favour. Do you and Comrade Dullah still insist on putting the resolution to a vote? Can we not just take note of it for now?”
And Dullah goes up, “Comrade President, as a loyal member of the ANC I accept the suggestion from the President.” And I go up, and I am a little cheekier than Dullah: “I don’t insist, I don’t desist,” I say, “My intention was to ensure that the matter be fully debated.” Madiba noted that I had beaten a diplomatic retreat and added that this was not the right time to be seen to be breaking off the negotiations.
And indeed, the Boipatong massacre a couple of months later in June 1992 was so shocking, so violent, that we knew that the moment to withdraw had come. There was lack of good faith on the other side. But we didn’t withdraw full stop; we withdrew until the political prisoners were released, until the marching with cultural weapons stopped, until the hostels were properly ring-fenced. And that turned out to be the moment when the central battle of the Constitution-making process was won – not around the table at CODESA but in the streets of South Africa. Responding to an ANC call for rolling mass action, hundreds of thousands of people went out into the streets. They were disciplined, they were organised. The world could see and South Africa could see that there was huge popular support for our position.
Splits opened up inside the ranks of what we now started calling “the government” – we were softening the terminology a little. First they had been “the enemy”, then they had become “the regime”, now they were “the government”, and later they were to be called “the other side”! And that was when serious negotiations truly began, both on substance and on process. Cyril Ramaphosa was astonishingly good – wise, thoughtful, very collegial and with a good sense of what was going on. And from the other side, Roelf Meyer emerged as a thoughtful and equally hard-working counterpart.
We have now got so used to the new South Africa as it is, that we argue about the efficacy of its functioning rather than its very existence. Yet how different it could have been. People today smile with incredulity when I tell them that the majority of speakers at CODESA supported the South African government line that insisted on tri-presidential power-sharing. Moreover, they shake their heads in disbelief when I inform them that there was equally strong support for the creation of an upper house that would give minority parties a veto over legislation that affected their specific socio-cultural and economic interests. And as far as process is concerned, my listeners can’t even imagine that the marvellous April 27th elections to create the body that would draft the Constitution might never have taken place.
The Record of Understanding agreed to by the ANC and the South African government later in 1992 resolved the drama in the following manner: To begin with, democratic elections on a national common voters’ roll covering the whole of South Africa would be held to choose the members of a non-racial Parliament; second, this Parliament would have the double task of general law-making as well as the specific function of drafting a new Constitution; third, it would be elected by proportional representation to ensure that it was fully inclusive; fourth, it would take decisions by two-thirds majority; fifth, the new Constitution would have to comply with broad principles agreed to by the negotiators at Kempton Park; finally, a Constitutional Court would be created to certify that the principles had in fact been complied with. The Record of Understanding led to the resumption of negotiations. We dropped the term “CODESA” and replaced it with the description “multi-party negotiating process”.
Yet, although the central drama of the Constitution had been resolved, we still faced several other crises that threatened to derail the whole project. One of these was the question of sunset clauses and the creation of a government of national unity – and it threatened to split the ANC in half.
Crisis over the government of national unity
The last traces of group rights lingered on in the demand from the other side for a government of national unity that would last for up to … five years after the democratic elections. The two positions inside the ANC were reflected in a famous polemic between Joe Slovo and Pallo Jordan. Joe, who had argued for “no middle road” in the 1960s, was now in effect saying that we should take a middle road – we’re going to get the vote, we’re going to get democracy, and then after a maximum of five years we can move the country forward socially and economically without impediment. Pallo answered that we might want to opt for a coalition government if it would be good for the country, but we couldn’t have one forced on us by the Constitution. That would be a denial of self-determination from the very beginning.
And here I’d like to introduce a second personal story. It’s late 1992 or early 1993 and the full NEC is meeting in the Johannesburger Hotel. Journalists are crowded outside impatient to find out which way the vote would go and speculating about whether the ANC could survive the division. The momentous debate begins. Some speakers support Joe’s positions; others back Pallo. And suddenly I think I’ve got the answer. “I’ve got the answer!” I say to myself. I put up my hand and a certain Jacob Zuma, who was the scribe, notes my desire to speak. “Comrade Albie, I’ve seen your hand.” Each of us has been given two minutes to speak and I am number 54. This is really democracy in action. And I am calculating; if we get through so many an hour and we have a break for lunch and we finish at six o’clock, I should be on by half-past five. I’ve got the answer, I’ve got the answer… And then it comes to five o’clock and Mandela announces: “Would the comrades mind – there is an important delegation – could we end a little earlier?” We don’t mind, and the guillotine comes down just before my turn to speak.
It was the best thing that could have happened. After a good sleep, everybody refreshed, I was first speaker the next morning. The NEC was dividing almost exactly 50/50, and I felt that there was a way to get unity on the issue of having a Government of National Unity: “Comrades, we look at a Government of National Unity as a trap for us, but what if we see it as an opportunity? Let us go to elections asking for a mandate from the people that will be binding on the new government. And if we have De Klerk and the others in government we can control them more easily than if they are outside creating mayhem. That’s just for five years and after that it falls away. So instead of just going into the elections only on a platform dealing with the kind of constitution we want, we go to the electorate with a programme of of social and economic reconstruction. Then we can call it a Government of National Unity and Reconstruction.”
There is immediate support for the proposal and a certain Professor Kader Asmal gets up afterwards and says, “Would Comrade Albie agree if we added the word ‘development’ so that it would be a Reconstruction and Development Programme?” And I said, “Of course.” So that was the unexpected manner in which the RDP came into existence as a product of the constitutional debate.
The crisis was over and the journalists waiting outside were surprised and maybe disappointed to see us all emerging with smiles on our faces. There would be no split in the ANC and we would go into the elections on the basis of the RDP. But many other crises were to follow, from the assassination of Chris Hani, to the calls of the SADF and SAP generals for a blanket amnesty, to the mutiny in Bophuthatswana, to the far-right wing demand for a Volkstaat, to the involvement of the IFP in the elections [See the unabridged version of this lecture here] – each of them extremely serious. Recently, in the course of working on a film about the making of the Constitution, I learnt that during this whole rocky period there had been 40,000 armed white soldiers waiting for the command from General Constand Viljoen to take over the negotiation process. We averted this nightmare.
‘How can you speak about roses when our people are dying?’
I remember when my book The Soft Vengeance of a Freedom Fighter was being launched at the University of Cape Town in 1991, not long before the formal negotiation process started, a guy who’d come down from Durban said, “What’s this literature stuff? How can you speak about roses when our people are dying? Just yesterday in kwaMashu some young ANC people came back at the end of the day; they were so happy, they announced: we got four of them, they only got two of us. It is like a football match – killing and being killed,” he said. This was what was happening all the time; people being pushed off trains – it was called “black-on-black violence”, and we had no doubt that it was being co-ordinated and stimulated by a Third Force. Agents involved in government security were getting the weapons out and people were dying throughout the country – especially in KZN. In fact, if we hadn’t had Peace Accords through the length and breadth of South Africa, we wouldn’t have achieved the Constitution. It took us six long years. Nowadays we take all of this for granted. We point quite correctly to the discrepancy between the ideals, the values, the basic foundations on the one hand and the lived reality on the other. But imagine if the foundations had been wrong. The foundations are right; it is the implementation that needs a lot of shaking up.
What did we achieve?
Looking back now, was it all in vain? Many people horrified by current political developments in South Africa are reflecting negatively on the Constitution, some of them quite harshly. I think we increase the fallout when, instead of standing on the achievements of the past, we trample on them. We should be building on them. Far from the Constitution being the source of our problems, it provides the basic mechanism for dealing with them. It is important to understand its historical significance when it was adopted, but perhaps even more important to understand its yet untapped potential today. Invoking rather than denouncing the Constitution can help us to deal with issues of accountability, of corruption and of popular involvement in the making of the laws and rules by which people are governed.
Our generation, what did we achieve? We brought down apartheid. We destroyed the political and legal institutions created by colonialism and white supremacy in their South African form. There is so much that is rotten in the state of South Africa today, but people who say that nothing has changed have no idea of what it was like then. You couldn’t have a meeting like this, you couldn’t walk in the streets the way you walk now, you couldn’t protest – you couldn’t even fall without getting into trouble with the law! Imagine a Fallist movement when you’re not even allowed to fall! Torture, banishment, books banned, everything banned. No vote, no rights, but also the daily insults. Separate queues, separate toilets, you couldn’t even go to the beach. It wasn’t just those little incidents of a normal intimate ordinary life, it was everything, everywhere. We’re living in another country now.
It wasn’t just about bringing down apartheid either; we had to reconstruct the institutions of our country. We had 14 departments of education, we had four or five armies fighting each other. They all had to be brought together. We had to create whole new regions and municipalities integrating everybody. It’s a huge achievement. Like in India after independence, they had to reconfigure the states to destroy the inherited feudal power of the rajahs and tackle the deeply entrenched rules of untouchability – another huge achievement. But our biggest achievement was to implant democracy, and the right to speak, to protest and to vote.
We used to be told: “One man, one vote – once. It’s not for Africa.” But we’ve had elections over a period of 20 years now. In the last elections the ruling party lost power in several major metropoles, an outcome that, with better or worse grace, was accepted. Maybe that’s the biggest achievement of the movement to which I once belonged; accepting the outcome when the electorate in a number of key areas lost its enthusiasm and support for the organisation.
We take it for granted that there will be revelations by great investigative journalists every day sustaining the impetus of the free press and media environment. If the students call for the fall of fees, they can go to a news reporter and get information out there. People were banned before, newspapers were banned. Information just didn’t get out. We speak our minds in South Africa now – openly, sometimes brilliantly, sometimes insultingly, but we speak out. Our elections are free and fair, and we take it for granted.
We take it for granted that we have an independent judiciary. I am so, so, so proud of my colleagues at the Constitutional Court. People ask me: “Do you ever go there?” My answer is: Yes, I do go there. And I am thrilled to see how well they are doing – and dismayed to see how well they are managing without me! Some people say the judges are over-reaching themselves, intruding unduly on Parliament. Others say, more persuasively I believe, that they are simply chiding Parliament when it is not doing what the Constitution requires it to do. In the Nkandla decision, for example, it wasn’t as though the court was imposing its own view on Parliament about how it should function; it was reminding Parliament what the Constitution expected of them. And since that decision, Parliament has been revitalised. Suddenly it’s showing an energy, a brightness that wasn’t there before.
I’m mentioning these things not to say, ‘What’s everybody complaining about? We’re living in a wonderful world and we’ve got a great Constitution.’ Far from it. I’m saying that if we want further change, the way to get there is not to trample on the Constitution, but to stand on it – not to abuse the Constitution, but to use it. When you start tearing up the Constitution the outcome is not more democracy, more rights, more homes, more freedom; the result invariably is more autocracy, more stealing, more opportunism, more self-seeking.
Let me end with another personal story. It was 1994, after the first elections and I had withdrawn from the NEC and active politics. We were getting our freedom. There were four of us lawyers who’d been on the NEC, and there could be only one Minister of Justice. Would it be Kader, would it Zola, would it be Dullah, would it be Albie? Had I spent my life fighting to worry about whether the phone would ring for me? For the first time in my life I imagined that maybe, just maybe, I could be a judge. I had never thought about it before. But to be a judge on the Constitutional Court defending the values we’d been fighting for – suddenly that seemed a most wonderful prospect. I’d been nominated, we’d had our interviews, but weeks and months go by without an announcement. And I’m waiting, and waiting, and waiting. Meanwhile, Adelaide Tambo has just been elected to Parliament and she is overwhelmed by the prospect of making what, in the unfortunate language of the time, was called her “maiden speech”. I’ve been friendly with her since our children played together in London, and she invites me to tea in her ebullient, friendly Adelaide way. “Comrade Albie,” she says, and she’s wearing a dress with bold epaulettes and we are having tea at a posh hotel, and she orders cake, and I’m wondering what’s this all about? And she says, “You know I’m in Parliament. I’m not used to being in Parliament and I need a speech-writer. Will you do it?”. I said, “Adelaide, I’ll happily do it. But you must write your own speech. I will help you with it, but it’s got to come from you.” And I remember going to her office and her saying, “Look at all these green books and blue books and white books, all these reports – I don’t know what to do with them.” I just cleared her desk. “You don’t need this, you don’t need that, keep this…” Then afterwards I went back to my own desk that was piled high with books and realised that it was a lot easier to clear her desk than my own.
Eventually she writes her own speech. She begins by saying, “It’s wonderful to be here in Parliament today; my only sadness is that my late husband Oliver…” And I’m reading her words and I’m wondering what is she going to say next – that he didn’t become President of South Africa? But she says, “My only sorrow is that my late husband Oliver Tambo didn’t live to vote in a democratic South Africa.” DM
Photo: Justice Albie Sachs.
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