World-leading SA constitution sets a high bar
As part of the 40th anniversary of the Canon Collins Trust, constitutional law expert Justice Mavedzenge spoke to former Constitutional Court Justice Albie Sachs about the legacy of apartheid-era legal activism for Southern Africa
Apartheid South Africa used the trappings of Western democracy — a parliament, elections and the legal system — to prop up its enforcement of apartheid. These trappings were opportunities for resistance. In his book White Lies: Canon Collins and the Secret War Against Apartheid Denis Herbstein tells how, beginning with the Treason Trial until the demise of apartheid, Canon John Collins and his successors funnelled money into South Africa to resist apartheid in the court of law. To do this he established the British (later International) Defence and Aid Fund.
“From 1985, the Fund helped in 16 651 legal matters — political trials, appeals, detentions without trial, death row stays of execution, inquests, civil claims against the police and the state, group areas appeals, trade union cases, commissions of inquiry, help to communities driven off their land and to people being harassed,” Herbstein wrote.
This support allowed South African lawyers and judges to be creative in the way they could use the law to challenge apartheid.
Says former Constitutional Court Justice Albie Sachs: “South Africa owes a debt of gratitude to the many lawyers, like Dikgang Moseneke, Arthur Chaskalson and Ismail Mahomed, who during the eighties stood up against legal oppression. They created a culture of legal activism that made it possible to start imagining a new legal system where the courts would be used not to oppress the people, but to defend their rights.”
Sachs: In developing South Africa’s constitution, we moved away from a purely technical, positivistic approach, with the judge seen as the disinterested applier of the letter of the law, into seeing the constitution as a document for transformation and change. It required a different cast of mind, less technical, but based on the foundational values of human dignity, equality, and freedom.
The need to develop a new framework of thinking arose in a very early case, in which the Constitutional Court was split. There was a provision that said that any cases that were in progress at the time the constitution came into force would be dealt with as if the constitution had not yet come into force. It meant that if there was still a racist statute from before, it could still apply.
I just felt that was impossible. This constitution represents a breakthrough. We can’t allow that provision to allow capital punishment, racist statutes, and oppression of women to continue. One by one other judges also came to that position. That’s when we developed the theory of the purposive interpretation of the constitution. From then our approach was to search for the purposes of the constitution, to look to the preamble, the spirit of the foundational principles and the Bill of Rights, and to set the issues in their historical context.
This required a new depth of thought and agility on the part of the Constitutional Court judges. In our judgments we asked: what are the pains of the past that continue to subdue the humanity of people in our country? What role can the law play in bringing about transformation and change? And we realised that it was not only the substantive law that had to be fair and just, the very way the law was applied had to be amended, it just had to be far more people-friendly.
It became a source of enormous pride to discover the extent to which courts internationally cited the South African Constitutional Court. In India, our decision on same-sex marriages was relied upon. Our decision about prisoners’ right to vote was quoted in Canada. I’m told by justices of the European Court of Human Rights that they always look to the South African Constitutional Court decisions when developing their approach on how a modern, contemporary, thoughtful and sensitive court should deal with issues.
The late US Supreme Court judge Ruth Bader Ginsburg some years ago commissioned a survey on the most cited top courts in the world. The survey found that the South African Constitutional Court was the secondmost cited court globally, with only the Canadian Supreme Court getting more mentions.
Who would have thought that the land of apartheid would produce a court that became a beacon of fairness, justice and hope?
This was not accidental. We had seen in South Africa how people had been dehumanised by the law. We had fought against that, using the legal system as much as we could in the apartheid era. We had created a mentality in favour of change. A great number of the people elected to the Constitutional Assembly that had drafted our constitution had themselves been imprisoned, exiled, tortured. They wanted to produce a constitution that would transform swords of oppression into ploughshares of hope.
Mavedzenge: This could not have been easy, because judges are wired to think in terms of precedents. Very few judges would want to start a journey into uncharted territories. This group was prepared to do just that, and it set South Africa onto a trajectory different from that other countries in the region have taken.
Sachs: When the time came for my generation of judges, who had all been active in the struggle for democracy, to step down from the bench, I was worried. Would we be followed by a new generation of judges who would be super-technical in their approach and turn their backs on the thrust, the energy and the vision of the new constitutional order we had striven to create? I need not have been concerned. Our court has succeeded in establishing a style of thinking and an approach that is producing enormously positive results at key moments. New judges added layer upon layer of fresh reasoning to respond to new issues as they arose.
The resilience and integrity of the judiciary has only intensified since we started out. Our courts have provided strong jurisprudence made in the image of our constitution, their concern has been with protecting and securing the rights of ordinary citizens in the face of abusive use of state power by some leaders.
Today, 27 years into democracy we can look at the strength of public interest litigation. It has helped create a culture of rights awareness that is deeply embedded in our society. Civil society uses the legal system to claim and protect rights. What this shows is the strength of public interest litigation in South Africa and the ability of the courts to protect rights without trespassing unduly into the terrain demarcated by the constitution for parliament and the executive to do their work.
Mavedzenge: The Constitutional Court’s jurisprudence has developed out of a courageous culture of judges. The region needs more of this, especially in countries like Zimbabwe and Tanzania, where there is such a serious regression in terms of human rights protection.
Sachs: Kenya provided a fascinating example of how a judiciary can go badly wrong, and yet become transformed. Judges became totally implicated in corruption, taking bribes, brazenly defending the power of an autocratic ruling elite. After 500 people lost their lives to violence after the elections in 2007, it was felt to be such a calamity — there was no point in going to the court, because the judges were eating out of the hands of the governmental elite. Popular anger promoted the drafting of a new constitution that provided mechanisms to achieve a transformed judiciary. The judges were constitutionally mandated not to rely on legal technicalities, and to pay special attention to the needs of the marginalised, the dispossessed and the poor. Certainly the first generation of the new judges, led by Chief Justice Willy Mutunga [who had himself been unjustly imprisoned], produced some outstanding decisions that can serve as beacons for the whole continent. So that has been quite a bright moment in African history.
Mavedzenge: South African lawyers like Tembeka Ngcukaitobi and Dumisa Ntsebeza are now also playing an important role in neighbouring countries. South African judges have sat on the Supreme Court in Namibia. And you yourself played a key role in engaging with the judiciary in Kenya. We need more courage on the bench for democratic values that are espoused to be upheld. Without a robust judicial culture, it’s difficult to have the rule of law or judges that are prepared to interpret the law in a way that speaks to the pains that society is suffering.
In a survey of the world’s most cited top courts, the South African Constitutional Court was the second-most cited court globally
This interview was compiled by Catherine Sofianos, the communications officer at the Canon Collins Educational and Legal Assistance Trust, and developed as part of the blog project “Troubling Power: Stories and ideas for a more just and open Southern Africa”