We, the People: Insights of an Activist Judge
By Albie Sachs
In his new book, activist and former judge Albie Sachs builds on South Africans’ renewed faith in the power of the Constitution. We, the People: Insights of an Activist Judge will be launched at Cavendish Square on Tuesday 22 November 2016 and Sachs will be in conversation with Zubeida Jaffer. This stirring collection of essays and extracts 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. Shortly after the bomb attack in Maputo that cost him his arm and his sight in one eye, Albie Sachs was called on by Oliver Tambo and 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 takes readers back to the broad-based popular foundations of the Constitution in the Freedom Charter. It picks up on Oliver Tambo’s original vision of a non-racial future and explores the tension between perfectibility and corruptibility, hope and mistrust, at the centre of all constitutions. In this edited excerpt he reflects on the death of Imam Haron and the direction this country is going in now.
The awful, incredible, news comes – I’m in exile in London, towards the end of a decade of terrible repression – the Imam is dead, killed in detention, his body covered in bruises. Imam Haron. It wasn’t very common then for people holding religious office in any of the faiths to actually stand up and denounce apartheid, and to do so not simply in the relatively safe space of a sermon or a letter to the editor, but directly in public life. The Imam was one of the few exceptions, and we honoured him for this.
How they must have beaten him for information. And how bravely he must have resisted. The shock was followed by a further shock – the inquest magistrate accepted police testimony that he had slipped down some stairs, with no-one to blame. Such a ludicrous, pathetic, undignified, ridiculous finding, a further blot on a judiciary that, with honourable exceptions, had increasingly aligned itself with or turned a blind eye to the atrocious practices of racist rule.
What a disgrace, that the Imam should be killed so grotesquely precisely because of his belief in freedom and justice, and then have his death glossed over so casually by the state. I think Chris van Wyk’s famous poem about a man hanging himself on a piece of soap, was initially inspired by the gruesome cover-up of the Imam’s murder.
And it wasn’t just the police and the magistrate who connived at the cover-up. Where were the investigative journalists, the thunderous editorials? For each brave newsperson trying to expose these crimes, there were ten others blithely parroting the disinformation given out by the authorities. (When I was blown up, nearly two decades later, the story carried by the press was that it had been as a result of an internal ANC feud.)
Yet the truth does come out. Imam Haron’s story was finally recorded in the most honourable fashion, firstly in a book by his comrade Barney Desai, and then in a film by his grandson. And the meaning of his life and death has been subsumed into the very core of our new Constitution. Indeed, it is precisely to avoid repetition of the brutalities he suffered that we have a Constitution with an entrenched Bill of Rights. That is why certain deep foundational fundamental principles now have to be respected in fair weather and foul, for good days and bad, and for all of us, whoever we are, whoever our parents were, whatever our appearance, whether in office or in opposition or not politically involved at all, for everyone in the nation.
The Constitution says Never Again. Never again should people suffer the worst pains, the deepest insults, the most terrible degradations of the past. And sadly, Imam Haron was just one of a multitude. Amongst close friends of mine who were murdered by security agents, there was Looksmart Ngudle, the first of the detainees to die in detention: despite bruises all over his body, the magistrate accepted that he had hanged himself; Elijah Loza died in detention in Cape Town; Ruth First, whose bomb-blasted body we carried to the crowded ANC graveyard in Maputo; Joe Qabi, journalist and freedom fighter, assassinated in Harare; and Gilbert, a radio journalist who had so many ‘travelling names’ I can’t remember his surname, who died having been given a final dose of poison while recovering from a mysterious disease in the Maputo Central Hospital.
Never, never, never again. These were the words used by President Nelson Mandela in his first address to Parliament. When preparing early drafts of the Constitution, many of us had insisted that never, never again in this country should the state use its resources to try and exterminate its opponents; should the instruments of the judiciary and the media be used to cover up, to deny the truth, to hide facts, and to lie.
Our Constitution is unique in the world in expressly incorporating the words ‘no detention without trial’. Detention without trial was the basis of all the cruelties that followed: the tortures, the manipulation of witnesses, and the total undermining of the possibility of suspects in political matters getting a fair trial. It is a matter of some pride for all the survivors, then, that the lives and deaths of their loved ones are permanently memorialised in the most enduring monument to the sacrifices of generations of freedom fighters, the Constitution of South Africa.
The direction this country is going in
I will ask a difficult question: granted that we have a wonderful Constitution, given the nature of the sacrifice of Imam Haron and so many others, and given the many confusions of public life today, was it worth it? For decades, many of us lived for that wonderful thing called The Future. Now we are living in that future. The certainties of hope have been overtaken by the ambiguities and perplexities of the present. I am sure there are people in this room asking themselves the question stated above. In their day, joining the struggle was not a good career move – you risked detention, torture, imprisonment, exile or death.
Today, becoming politically involved is viewed by many as a shrewd step up the ladder of personal advancement. Over long years of struggle, building unity on the basis of non-racialism was central to the liberation movement; nowadays many people who spent their lives fighting for non-racialism feel dismayed at what they consider to be opportunistic and disrespectful attitudes of certain prominent personalities towards the communities to which they belong.
There is widespread concern about the huge gap that exists, and is even growing, between the very rich and the very poor; the doggedly resistant patterns of massive unemployment; the extent of crime and sexual violence. Experience tells us that poor people are capable of extraordinary patience when it comes to the step-by-step improvement of their lives. Their emotions boil over, however, when they see former neighbours in informal settlements abusing newly occupied public positions to take bribes and favour family and friends when distributing public goods. And people from all walks of life, including many who have undoubtedly benefitted from the opportunities opened up to them by the new democratic dispensation, are deeply shaken by tales of corruption in public life.
It is not just the waste of resources, the shoddy performance and the paralleled demoralisation of law-enforcement agencies. The distress comes from the sense that the ethical core of the whole project of democratic transformation is being undermined. After all, the cynics say, why bother to spend hours in arduous study or to perfect performance at work, when the one proven skill that will secure advancement is a Masters’ degree in the art of getting in with the right people, and a Doctorate in the science of corruption.
The most profound unease, therefore, comes not simply from the apparent intractability of the problems of continuing inequality besetting our country. It flows from a fear that in the evolution of our new constitutional order, the moral purpose that enabled us to overcome apparently insuperable obstacles is being dissipated, and the perfectibility for which we strived is giving way to corruptibility to which too many of us are prone.
What worries me now is that millions of people who are doing the hard work of keeping the country going are so preoccupied with their day-to-day concerns that very little of an overall vision comes out from them. At the same time, people who project beautiful visions don’t seem to be doing any of the hard work needed to solve the actual problems of our society.
So it seems that what we need now is to reconnect the hard work that thousands and thousands, indeed millions, of people are doing decently and honourably inside government, in the private sector, in public life, in the schools, in all areas of life, with a refreshed vision of how our new democratic society can advance. All honour, then, to the Imam, whose fusion of practicality, wisdom, integrity and idealism serves as an eternal beacon for us all.