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In his new book – We, the Peo­ple – ac­tivist and for­mer judge Al­bie Sachs builds on South Africans’ re­newed faith in the power of the Con­sti­tu­tion fol­low­ing the land­mark Nkandla rul­ing, and re­asserts the value of con­sti­tu­tion­al­ity in the on­go­ing strug­gle to ad­vance hu­man dig­nity, equal­ity and free­dom

We, the Peo­ple – In­sights of an Ac­tivist Judge by Al­bie Sachs Wits Univer­sity Press 277 pages R350

My in­au­gu­ral lec­ture at the Univer­sity of Cape Town (UCT) in 1991 was ti­tled Per­fectibil­ity and Cor­rupt­ibil­ity. We had seen this ten­sion at play in many coun­tries where we had lived in ex­ile, where cer­tain brave free­dom fight­ers had ended up as au­thor­i­tar­ian and self-serv­ing heads of state. We had seen the ten­sion in­side our own or­gan­i­sa­tion where not all our mem­bers lived up to the val­ues of peo­ple such as Oliver Tambo and Chris Hani and Joe Slovo and Ruth Mom­pati. I had re­cently re­turned from ex­ile and was heav­ily en­gaged in the prepa­ra­tions for bury­ing apartheid, and achiev­ing a new demo­cratic and non­ra­cial Con­sti­tu­tion.

Now, a quar­ter of a cen­tury later, peo­ple of all ages from all parts of the coun­try are ask­ing me the ques­tion: Is this the coun­try you were fight­ing for? They point to the con­tin­u­ing racism, the mas­sive in­equal­i­ties still as­so­ci­ated with race. They re­fer to the vast ex­tent of unem­ploy­ment and to the un­ac­cept­able level of crime. Above all, they ex­press shock at fail­ures of lead­er­ship and the de­grees of cor­rup­tion in which a num­ber of po­lit­i­cal lead­ers at all lev­els of govern­ment are in­volved. Has cor­rupt­ibil­ity tri­umphed over per­fectibil­ity?

And my an­swer is yes, this is the coun­try I was fight­ing for. But no, it is not the so­ci­ety I was fight­ing for. So the an­swer to the an­swer is not to al­low the de­fi­cien­cies of our so­ci­ety to de­stroy the coun­try, but to use the coun­try to deal with the fault lines and fail­ures in our so­ci­ety. This is not just a lawyer’s play with words. When, in the days of op­pres­sion, we called for free­dom in our life­time and de­manded uni­ver­sal fran­chise, we were told sneer­ingly to look at Africa; there would only be “one man, one vote” once. We have, in fact, had four gen­eral elec­tions. Our pres­i­dents step down af­ter two terms max­i­mum. For­mer pres­i­dent Nel­son Man­dela vol­un­tar­ily left of­fice af­ter one term and for­mer pres­i­dent Thabo Mbeki re­signed be­fore his sec­ond term had ended, not be­cause of an army coup or huge demon­stra­tions in the streets, but be­cause a ma­jor­ity in his party had shown pref­er­ence for an­other leader.

The in­sti­tu­tions founded on the prin­ci­ples of mis­trust and vig­i­lance that we placed in our Con­sti­tu­tion to pro­tect our­selves from our­selves, have been work­ing. The re­ports of the Pub­lic Pro­tec­tor in ful­fill­ing her con­sti­tu­tional man­date have not only helped clar­ify is­sues of great pub­lic con­tro­versy, they have given le­git­i­macy to the whole con­sti­tu­tional project. Even more so the cre­ation of an in­de­pen­dent, con­sti­tu­tion­ally minded ju­di­ciary has given the peo­ple clear points of ref­er­ence in un­der­stand­ing how power should be ex­er­cised in our coun­try. Pro­tected by the Con­sti­tu­tion she pro­tects, and en­joy­ing in­creas­ing pub­lic es­teem, Lady Jus­tice is far from cowed. And just as we have a new gen­er­a­tion of judges uphold­ing the cen­tral tenets of our coun­try’s ex­is­tence, so we have a lively new crop of jour­nal­ists us­ing their con­sti­tu­tion­ally guar­an­teed free­dom to in­ves­ti­gate the do­ings of the might­i­est and the mean­est in our na­tion.

Black ma­jor­ity rule has not failed in our land, even if our so­ci­ety con­tin­ues to fail in many se­ri­ous re­spects. Black lead­ers achieved some­thing that gen­er­a­tions of white rulers never suc­ceeded in do­ing. They in­te­grated the Ban­tus­tans into one united coun­try. They amal­ga­mated armed forces that for decades had been bit­terly fight­ing each other. They uni­fied sys­tems of health and ed­u­ca­tion that had been seg­re­gated for cen­turies. We can all move freely and speak our minds. There are no holy cows in South Africa. We all have the vote and our elec­tions are taken se­ri­ously. We can take our dis­putes to court, chal­lenge the high­est and de­fend the hum­blest. Our books are not banned, there is no de­ten­tion with­out trial. This is our coun­try, South Africa. We have won our free­dom and we are not go­ing to let it go. We have mech­a­nisms to hold our lead­ers ac­count­able, and the op­por­tu­ni­ties to make use of the rights we have won.

It is true that nearly a quar­ter of our pop­u­la­tion has moved from shel­ters to brick or ce­ment homes with wa­ter, elec­tric­ity and sew­er­age; that 90% of our peo­ple have gained ac­cess to wa­ter and elec­tric­ity; that al­most a third of the na­tion re­ceives so­cial grants; that we have a large and grow­ing black mid­dle class that is both driv­ing the econ­omy and chang­ing the na­ture of po­lit­i­cal dis­course. We can and should take con­sid­er­able pride in these ac­com­plish­ments. But none of them jus­ti­fies Marikana; the in­or­di­nate ex­pan­sion of wealth for those al­ready ex­tremely rich while the ma­jor­ity re­main poor; the fail­ures to ac­com­plish mean­ing­ful land re­form; the racism still ram­pant in our so­ci­ety; the cor­rupt deal­ings in the state and in­side po­lit­i­cal par­ties.

We need to en­gage se­ri­ously with is­sues placed on the agenda by a new gen­er­a­tion of stu­dents who are call­ing bravely and boldly for de­coloni­sa­tion of hal­lowed in­sti­tu­tions like our uni­ver­si­ties, and not sim­ply their de­ra­cial­i­sa­tion. The burn­ing of build­ings and paint­ings by some in their ranks should not stop us from open­ing our minds to what they are say­ing, and re­spond­ing to their ide­al­ism and pas­sion. When I spoke to 200 fer­vent law stu­dents at UCT re­cently, I couldn’t help see­ing my­self as a young law stu­dent on that very cam­pus sit­ting in their ranks. Our in­sti­tu­tions are strong enough to con­tain and be strength­ened by the tur­bu­lence that be­sets them. They are more likely to col­lapse from rou­tin­ism, cor­po­rati­sa­tion and, in some cases, crony­ism and cor­rup­tion than from hav­ing to find sus­tain­able and mean­ing­ful re­sponses to the tu­mult on their precincts.

And we have to lis­ten to what the work­ers are say­ing. I was re­minded of this when at­tend­ing a con­fer­ence re­cently to dis­cuss 20 years of our Con­sti­tu­tion. The ho­tel in which I was stay­ing was filled with work­ers at­tend­ing their own con­fer­ence. Speak­ing to one of their lead­ers, I re­called the role that the unions had played in es­tab­lish­ing democ­racy and non­ra­cial­ism in our coun­try. Long be­fore trade union mem­bers had the vote, they were elect­ing their own lead­ers. Long be­fore non­ra­cial­ism and non­sex­ism were made foun­da­tional val­ues of our Con­sti­tu­tion, they were break­ing bar­ri­ers of race, tribe, lan­guage and pa­tri­archy in strug­gles on the shop floor.

I will end with a state­ment by Samora Machel: Lead­ers may come and lead­ers may go, but the peo­ple never die. Samora Machel himself was killed when his plane was lured to a hill­side by a false beacon. His peo­ple and his coun­try were se­verely wounded, but they never died. In South Africa we have a peo­ple who are as deter­mined as they are di­verse. We, the peo­ple, made our Con­sti­tu­tion. There is noth­ing in it that pre­vents a sec­ond ma­jor trans­for­ma­tion of our so­ci­ety. Un­like tran­si­tion, trans­for­ma­tion never ends; our so­ci­ety needs con­stant re­newal. It is we, the peo­ple, who pro­duced our Con­sti­tu­tion, and it is we, the peo­ple, who must en­sure that its full vi­sion is achieved.

In our life­time.

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