WE, THE PEOPLE
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.