ALBIE SACHS
The beautiful people were not yet born
It is often said that when we drafted our constitution we gave powers to the president on the assumption that we would always have someone like Nelson Mandela in office. In fact, the exact opposite was true. In the late 1980s we had a lively discussion in the constitutional committee of the ANC in Lusaka, on whether to have a strong presidential system of government — such as could be found in the US and nearly all African states — where the president is elected directly by people, or whether we should opt for a prime-ministerial-type system — closer to that of many Commonwealth countries such as India, the UK and Australia — where the head of government is chosen by parliament.
At first a majority opted for a directly empowered president, saying that respect for personalised leadership was strongly embedded in African culture. Furthermore, Mandela was immensely popular and would help the ANC to win the first election. But then some of us pointed out the dangers.
In South Africa we had experienced three traditions of centralising power. First, the old governor-general, called the “supreme chief of natives”. Second, authoritarian traditional leaders who ruled autocratically, hand-in-glove with Pretoria. And third, our own political military command that by necessity had a strong top-down character. Put the three together and you could forget about parliament.
Authoritarian leaders
The Freedom Charter was our guide for the broad principles relating to the exercise of power in a democratic South Africa. But it said nothing about the structures of government. We had to come up with our own ideas. In the end we unanimously decided to go for a prime-ministerial system even though we didn’t use the term prime minister.
We decided that the main repository of the power of the people should be parliament. We were strongly influenced by the experiences of African states that had fought bravely and hard for freedom, where the leaders of independence movements often ended up becoming authoritarian, using their powers to benefit of families, their tribes, their ethnic groups or their clique of friends. And we had seen some of our own ANC people abusing their powers in the organisation.
When I returned to South Africa after many years in exile, the theme of my inaugural lecture at the University of Cape Town in 1991 was “perfectibility and corruptibility”. My lecture started with the words: “The beautiful people are not yet born.” This phrase was taken from a Zimbabwean writer, who picked it up from a Ghanaian writer, both expressing their dismay at the way in which people who had fought heroically for freedom ended up behaving in a manner that the writers regarded as corrupt.
All constitutions, I said, were based on the tension between perfectibility and corruptibility. While we aim for perfection we guard against corruption. Our attitude was that even someone as wonderful as Mandela was no guarantee against the negative effects that power could have. So the whole design of the constitution was intended precisely to deal with a situation where a future president was seen not to be living up to the values embedded in that constitution.
If one compares South Africa’s constitution to that of other countries, the powers of the president are not extensive. The president is chosen by parliament and can be recalled by a simple majority in parliament. In presidential-type systems, the president is chosen directly by the people and parliament can only depose the president through a process of impeachment, which requires a large majority, is prolonged and is based on establishing precise violations of the constitution. On the other hand, in our system a vote of no confidence simply means a loss of faith in the political leadership of the president.
Chapter 9 institutions
In our constitution we decided to make the head of government equivalent to one chosen by parliament (a prime minister) but to have extra powers that in other countries only the president would have, such as the power to pardon and to receive ambassadors. So the head of government would also become the head of state.
The second feature of our constitution is the extent to which we paid special attention to guarding against future forms of abuse of power through Chapter 9 institutions. I think this is unique in constitutional documents in the world.
One of these institutions exists to make sure that elections are free and fair. So we have an independent electoral commission set up by parliament and not by the executive.
Judges are given an extremely important role in our constitution. We created the Judicial Service Commission so that judges would be elected in an objective manner and not simply by the executive.
What is striking is how exceptionally well both these Chapter 9 institutions have worked. Elections are meaningful and having an independent judiciary is not just the result of chance or of good people being in charge, but of the institutional arrangements embedded in the constitution.
I have been particularly delighted to see the role that my generation of freedom fighters played in upholding the values of the constitution. I personally don’t like the term “veteran”, but I love the term “stalwart”. I was deeply impressed by the way the stalwarts came together. They had been in prison together, in exile together, in the underground together, in Umkhonto weSizwe together. Some became generals (now retired) in the South African National Defence Force. Others did well in professions and business. Others still occupy relatively humble positions. But they came together as a generation that fought for freedom and wanted to uphold freedom. And I think their influence, even if indirectly, was profound.
Sad for Jacob Zuma
I share the delight of other South Africans at the prospect of renewal. Transformation has suddenly become real and my heart, like so many other hearts, blazes with joy.
At the same time, I feel sad at the turn taken in the journey of Jacob Zuma. I knew him in Mozambique, when he was our chief representative, as a brave, thoughtful team worker, an energetic man whose laughter then was symbolic of something gracious and embracing and had not yet become the source of derision that it unfortunately became in recent years.
To see the way his itinerary turned out is not a source of delight. But, like all of us, he has to account for the choices he has made.
What delights me is seeing the institutions the constitution created defend our hard-won freedom as both functional and meaningful.
It has become clear that for constitutional democracy to work well, three things are required.
The first is a well-crafted constitutional text created by representatives of the people who are themselves rooted in the country’s history and whose goals are consistent with universally accepted democratic values.
A text alone is not enough; you need institutions created by the text to work. Each institution requires careful tending and constant renewal to adapt to changing circumstances. A text without institutions that function to keep society in step with the values of the text just won’t be sufficient.
We require even more than a text and institutions. We require a culture of constitutionalism that enables members of civil society to speak out, and media that is free, vigilant and inquiring. That means listening to the opinions of others and allowing all people to speak their minds.
For me, what has been significant in recent weeks has been how all three of these elements have come together. In other countries, tanks go onto the streets to bring about a change in leadership, or a million people demonstrate in the squares. In South Africa, we’ve accomplished a major leadership change
The design was intended to deal with a situation where a president was seen not to be living up to the values embedded in the constitution
without ruptures or violence, using the avenues that the constitution designed to keep open.
One thinks of the role the judiciary has played — without the JSC we might never have had judges as independent as ours.
One thinks of the pending elections. Without elections that are taken seriously, because they are supervised by the Independent Electoral Commission, such significant change might not have been demanded by so many.
One thinks of the lively role that civil society and the media have played, with a number of brilliant investigative journalists not simply hurling accusations but digging and delving and finding facts and providing information so that our population is informed.
A combination of all these elements has produced the events of this past week.
It was pleasing to see that Zuma was humbled rather than humiliated. That is in keeping with what I think is a strong, humane — if you like ubuntu-based — cultural tradition in South Africa. The law will take its course in its ordinary way, but let that be the responsibility of the law.
Most important quality
It has been notable to see how Cyril Ramaphosa has been welcomed by huge swathes of South African society who have worked closely with him in the civil sphere. I share that appreciation. He has shown himself to be sure-footed, hard-working, collegial and far-sighted.
Having said all that, I think possibly his most important quality is his eagerness to work with people who are strong-minded, forceful in expressing their opinions and willing to challenge ideas that might be close to his heart. I hope that he continues to welcome being surrounded by such people. In this respect he can do no better than to follow in the footsteps of Mandela.
Mandela felt strongly that people as young as 15 should get the vote. He pointed to the sacrifices that young people made in the liberation struggle. It was the only issue during the entire constitution-making process that I remember him taking a personal stand on. Three times the constitutional committee sent me to argue with him in favour of 18 being the voting age. When he had to sign off on the documents that went to negotiations, he said: “Well, I can see I’m in the minority.” He was stung and visibly cross, but he signed nevertheless.
Ten years later he told that story against himself, saying that presidents can be wrong. Fortunately Mandela listened to those around him and his wrong view was not put into effect.