Lessons from a Revolutionary's Lifetime Crusade for Justice

As a member of the African National Congress' struggle against apartheid, Albie Sachs had his home raided, was imprisoned without charge, tortured, left in solitary confinement and blown up in a car bomb. He lost one arm, half his eyesight and lived in exile for years, but Sachs never lost his vision for a just and equitable society, even for the perpetrators. In 1988, he began penning that vision full-time into passages that would become the guiding document -- the new constitution -- to shape South Africa's future as a just, democratic society. In 1994, Sachs became a founding member of the South African constitutional court, appointed by then newly elected President Nelson Mandela. Sachs' latest book, The Strange Alchemy of Life and Law, describes how he attempted, as a Supreme Court justice, to apply those ideals in a complicated world, a much tougher task than he had imagined. But in a dozen or so years, South Africa has gained ground and even stepped ahead of many in the West in its efforts to bridge the equality gap.

Sachs recently discussed his sometimes contradictory life as a human rights lawyer, an outlaw and a justice, and the vision that has been guiding South Africa's quest in leaps and bounds toward true equality.

Maria Armoudian: As a young white lawyer in South Africa and a member of the ANC, you found yourself simultaneously advocating the law and yet an outlaw. How did you reconcile this?

Albie Sachs: During the day I practiced in the high court in Capetown, wearing the advocate's gown and using my skills and persuasive power for my clients. It was very stimulating, but it was in a totally white court, except for the black people who faced prison. So by day, I defended my clients in court, and at night I challenged the whole legal order. Because the constitution and legal system in South Africa was abysmal, explicitly based on race, and manifestly unjust, we challenged it through the legal system while we prepared an underground resistance to overturn the whole order.

MA: You, as a lawyer, ended up in solitary confinement, imprisoned and tortured. What happened?

AS: It was under the 90-Day Law under which you could be locked up for 90 days without access to lawyers, family, anybody -- in total isolation. It was very grim and harsh. After those 90 days went by, one by one, I was released, per the law, but only for three minutes. Then, they re-detained me for another 90 days. Sadly the Supreme Court, the highest court in South Africa at that stage, upheld the validity of repeated 90-day sessions.

MA: The 90 days were without any charges?

AS: No charges, no access to counsel, just to be interrogated and questioned, on the basis that you were suspected of having information about terrorism.

MA: How many of these 90 days in sequence could one go through?

AS: At that time, I knew of people who were detained for at least three sessions. But afterward the law was changed to take away the 90-day limit, so it was open-ended, and people were held in solitary confinement for months or years, not charged with anything -- maybe to be called as a potential witness or if they were obdurate, refusing to cooperate with the authorities. It literally could be indefinite.

MA: You ended up leaving South Africa and living in exile after that.

AS: Yes, my clients expected me to keep them out of jail, not to go to jail myself. It was a very bitter decision. But one couldn't escape from Capetown. We were right in the bottom end of South Africa with no land borders that I could get over. So leaving meant going by boat with an Exit Permit, which allowed you to leave the country on the basis that it would be a criminal offense to ever return.

MA: And so you took the exit permit and you moved to first to England and eventually to Mozambique. Was it in Mozambique that you were blasted in the car bomb?

AS: Yes, after I did a Ph.D. at Sussex University, I taught international law at Southampton University, thinking all the time what can I take back to South Africa and always with a view to repatriating and bringing that material to South Africa. So I went to Mozambique, close to my country, to the problems of my country, and totally engaged until 1988.

MA: You wrote that the car bomb that blew off your arm and took away half of your eyesight also blasted away the 'schism that had divided you,' that it 'hurled you out of a legal routine and freed you to recreate your life.' How did that happen?

AS: It's funny hearing you say that. I'd forgotten I'd written that, but it sounds rather good. The solitary confinement and the sleep deprivation -- attacks on my mind, my will and my soul -- were far more injurious than the attack on my body. Yes, I did lose an arm, and the sight of one eye. But this is what everybody in the freedom struggle thinks about: Will they come for me today? If they do come for me, will I be strong, will I get through? And I survived. And even more than that, I think every human being wonders: If I were to die tomorrow, will somebody cry? People thought I was dead, and they cried and I know that.

So surviving that bomb gave me an extraordinary, almost unreal sense of vitality, a near immunity to the tiny vicissitudes of life. It swept away a lot of triviality and the little neuroses that we all have and reconfigured my life, giving me an opportunity to determine what I wanted to do and be and how I wanted to spend my days. I managed to get my wish, which was to work full-time on preparing the new constitution for South Africa. What made this marvelous was that we were not simply denouncing apartheid or calling for people to isolate racist South Africa. We were actually creating the foundations, the imaginative, legal and institutional foundations for a new democratic South Africa.

MA: You have coined a phrase called 'soft vengeance' in relation to the guy who planted that bomb.

AS: Yes, it's sometimes hard to get that concept across to an American audience, and it seems to be almost a contradiction in terms. The phrase came to me when I was lying in a London hospital recovering from the bomb. I used to sing to console myself at about 4am when the painkillers were wearing off, and I felt very alone. Then, I received a letter from a friend, who said, "Don't worry Albie, we will avenge you." And I thought, what does he mean? Are we going to cut off the arms of the people who sent these bombs? Are we going to blind them in one eye? What sort of country will we be living in?

Then I heard that one of the persons that placed the bomb in my car was caught in Mozambique. And I thought, if he is put on trial and the evidence is insufficient, and he's acquitted because there's no proof beyond reasonable doubt, this will be my soft vengeance -- because it is more important to live under the rule of law and with due process than it was just to send one rascal to jail. Similarly, I was thinking about getting everyone the right to vote, and I said to myself, "If we get democracy for everybody and build a nonracial, nonsexist society, roses and lilies will grow out of my amputated arm." When we voted, I had a look at [my arm] and didn't see any roses and lilies there. But it did convey the idea that it isn't about doing to them what they'd done to us, either directly or indirectly. It is about transcending what they had done. It was about building a new society.

MA: You have said that writing and expounding the constitution was the primary instrument for accomplishing a completed peaceful revolution. It was through this process in law that you saw South Africa healing itself. Do you think that it has?

AS: One can't stress enough the role of making the constitution; not the text, but the process of elaborating it, finding agreed terms within which people can live together, build confidence and develop trust based on guaranteed protections. The process was part of the guarantee that the constitution would be meaningful. There were two gaps -- one between apartheid law -- which used the law as an instrument of oppression -- and the ideals of justice and freedom to which I think any decent lawyer should aspire.

The other was between the high falutin' beautiful phrases of the law and what law meant to ordinary people living in shacks. There seemed to be no connection between these beautiful phrases of the law and the lives led by the desperately poor but extremely active and dynamic people. To them, the law was police, jail, and oppression, whereas justice to them was freedom, and they were willing to give their lives for justice. It was only when we wrote the constitution that we linked up these two worlds. That was healing. Working on the constitution I could see how these grand phrases of the ages could really be meaningful for the poor and disenfranchised. They could have an emancipatory character if we got the constitution right.

MA: You have also asserted that the Truth and Reconciliation Commission was one means of healing a torn-apart nation. Yet you met the person who organized the bomb in your car and others who had tortured your colleagues, and many of the perpetrators were given amnesty. How was this process healing? Was it the role of truth? The role of apology? The public process?

AS: It played an enormously positive role because it enabled the pain to come out. Somebody described it as converting knowledge into acknowledgement. We knew terrible things had happened; we knew there was pain and that people died in detention. We had statistics and facts. But facts are cold, and data lacks the human dimension. The Truth Commission brought these events and experiences into the public place. We saw the tears, heard the voices; we heard the lamentations, and the sometimes stilted apologies. These were our people on television, heard on the radio, read in the press. It was the humanizing and personalizing of what had happened that captured people's spirits. Although it didn't heal inequities of our country, it created a common platform that there are things that people just can't and mustn't do to other people, that in the new country, there would be no secrets and no lies, and that we mustn't allow these things to ever happen again.

Until we addressed these extremely sore points, these hidden and denied examples of atrocious conduct, we couldn't even reach the problem of a forward-looking government. So the Truth Commission helped to repair and lay the basis for common citizenship and for joint efforts to improve the lives of everybody. It didn't solve the big problems of injustice. We are de-racializing wealth, but poverty is still overwhelmingly a black phenomenon, and until we have real equality in the lives people lead, I don't think we will have full and lasting reconciliation. We still have a long way to go.

MA: Having lived through one of the most profound political transformations of our time, I want to ask you a bit about some of the factors within the transformation, because there are debates among thinkers about these means of achieving such ends. So for example, what was the role of violence? Could you have achieved the same end result in South Africa without violence?

AS: There are two aspects that were very significant in our story: We resisted using violent methods for as long as possible; nonviolence was our slogan. The result was more and more oppression. People didn't have the right to vote; our organizations were banned; our leaders were in prison; and our newspapers closed down. It became a question of whether to submit or fight.

Fighting back was important and historically justified, but at the same time, it was important not to engage in terrorism. Violence and terrorism are not synonymous. Violence can be used to counteract the repressive violence of the State. But it can also be an indiscriminate method of sowing as much mental and psychic destruction as you can, targeting people who are not direct participants in the struggle.

We used tactical violence but absolutely denounced terrorism, It was very important that we resisted any of terrorism's lure. That would have polarized our country so much that we could never have gotten the transformation that we've got now. When you become an instrument of death, you lose your own humanity. And we were fighting for humanity. That was the core of everything we were doing, which made it all the more paradoxical that we were being locked up as terrorists, because we were challenging the State and using armed force as part of the challenge to the State.

Then we found out that some of our officials were using violence against captured enemy agents, who were sent to blow us up, destroy us, poison us and create mayhem. We were shocked to the core and decided, as an organization, to prohibit the use of torture under any circumstances, even in the direst circumstances. Whatever the emergency, we don't use torture, and we don't use it because we are not like that, because we are fighting for life. That became a kind of bill of rights within our liberation organization and a core ingredient of the struggle, which meant that we were ready for a Bill of Rights in a new democratic South Africa.

MA: What about the role of media and communication before, during and after the transformation?

AS: Under apartheid, the media overwhelmingly reflected the social situation in our country. White people owned the media. For example, in a simple thing like a murder story, the murder of a white person got headlines, particularly if it was in an up-market suburb, whereas the murder of a black person in a poor area didn't register any treatment at all, so the focus was, in that sense, very white. At the same time there were honest journalists and campaigning journalists, though not huge in numbers. They were battling to get some critique through.

I worked for a while on a weekly newspaper that we tried to make lively and readable. Looking back, a lot of it probably was pretty stodgy. But it came from the vantage point of struggle. It was seen as an organizing tool, a way of getting the words of [Nelson] Mandela, [Oliver] Tambo and others to people who otherwise wouldn't know what was being said. It was suppressed. In the struggle period, we also had Radio Freedom, which got tremendous encouragement and support. But it was so distant and its presentation of information and news might have been a bit stale. I don't think it played a very big role. Journalists were useful for keeping up morale but out of touch because they had to produce from faraway about the day-to-day events.

Now we have a whole new caucus of editors, mostly from the black community, many who were involved in the struggle as young people. So the newspapers are far more diverse, and in some ways, more lively. There's certainly much greater freedom of the press and openness of criticism now than ever before.

MA: As I recall, the Truth and Reconciliation Commission was broadcast throughout the country, is that right?

AS: Yes, the impact was enormous. It was broadcast daily and weekly as television summaries and excerpts in the news every day as part of the news programs or like a special Sunday evening recap of the week's events. You just had to acknowledge what was going on. Some people would switch it off, but even the act of switching off the program, in a way, was a response.

MA: What were your guideposts for writing the new constitution of South Africa?

AS: We had a document called the Freedom Charter that the ANC had adopted in 1955, which set out a vision of a future nonracial, democratic South Africa that belonged to all who live in it, black and white together. In a conceptual and imaginative sense, that was the core. But we also had to transform a visionary statement into an instrument and set of institutions that could be made practicable in real-life situations. So we directed the energy toward institutions and mechanisms for entrenching basic rights. Many people call it the most forward, progressive looking and comprehensive constitution in the world.

MA: Some of the complications, I understand, were incorporating things such as 'bread rights' into the bill of rights. How were they complicated?

AS: Traditionally, lawyers focus on the freedom rights, civil rights, freedom of speech, to assemble, to speak, freedom of conscience and the right to vote. Things like the right to health, education and housing were instead seen as what good governments do but not as fundamental rights. In South Africa, we couldn't separate freedom rights from bread rights. We wanted them all. We couldn't allow development to be used as a justification for suppressing freedom. Freedom without adequate housing, the minimum decencies of life or with children dying of preventable diseases, would be anti-freedom.

So our constitutional order, our bill of rights expressly speaks about everyone having the right of access to free health, housing, education, water, minimum decencies of life. The state must take progressive measures to realize those rights in its available resources. The task of the courts was to give meaning to those broad statements. We've quite a developed jurisprudence now in our courts about reasonable measures to realize these rights, such as housing and access to health care, particularly important in terms of access to the provision of anti-retroviral treatment.

MA: As a justice on the Constitutional Court, you dealt with and opined on some landmark cases that tested these rights and dealt with homelessness, HIV and same-sex marriage. Tell us about these, starting with the homeless Mrs. Grootboom.

AS: [In the first case] the court didn't order that Mrs. Grootboom [who lived in a shack] get a home, but she was given provisions. The court ordered that there should be an emergency program to deal with evicted people, victims of fire and flood who had no shelter whatsoever. There had to be something in place for them. Since then something like two million brick homes have been given for free to people to move from shacks into brick homes. They pay nothing. But we have an enormous backlog and also cases of people being evicted from the town center by city councils for purposes of urban renewal. We've insisted on meaningful engagement: They must have a voice in what happens to them. The council can't just have them booted out.

In the case of the right of access to health, the most important was the Navirapine case, where the court ordered that a woman in labor living with HIV who was about to give birth has the right to the drug Navirapine, which would be given only with informed consent under the supervision of the doctors in the facilities that provide it.

On same-sex marriages, one of my last written opinions, our constitution speaks about nondiscrimination on grounds of race, color, creed, national origin, birth, sexual orientation or disability. So we had a strong foundation for saying that denying same-sex couples the right to celebrate their unions with the same public acknowledgement, rights and responsibilities of heterosexual couples violates the constitution. We gave parliament one year to rectify the situation. And if it didn't, we would have written in the necessary changes into the marriage act ourselves. Parliament adopted a civil union law that enabled same-sex couples to say "I marry you," such the "M" word was part of the text. Same-sex couples now get married, and the world hasn't come tumbling down. It's becoming a well-accepted fact of public life to see same-sex couples openly acknowledging the character of their relationship and being accepted in their communities as a married couple.

MA: From your experience, what advice do you have for other struggles for justice?

AS: I think there are some principles that are pretty universal. And one of them is: Don't lose your own humanity in your struggle for rights and humanity. To me that's absolutely central. The minute that everything becomes a question of calculation, you forget what your goal is. Your goal is to rescue and preserve human dignity and to enable human dignity to flourish. But if you're destroying that at its source because somehow you've become cruel, you lose the value foundation of what you're doing. Or if you simply see enemies out there, then you don't see human beings.

Maybe the armed dimension becomes inevitable because there are no possibilities of free expression of your views, no legal or democratic ways in which you can express yourself. Even then, it doesn't mean that the revolutionary end justifies cruel means, or the liberatory, emancipatory end justifies any tactic whatsoever being used. That means that things like terrorism and torture that belong to cruel societies don't belong to freedom movements, and that's the only thing I can urge. And it's not simply a question of morals and the integrity that you have amongst yourselves. It also works. You will get friends, people to believe in you, and you believe in yourself, build up alliances.

People see the justness of your struggle, and they're not diverted by the methods that are being used. You win out in the end. Certainly that was our experience in South Africa.


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