Albie SACHS, We, the People: Insights of an Activist Judge (Johannesburg: Wits University Press, 2016)
THE South African Constitution is a constant benign presence in this book, Albie Sachs’s anthology of writings and talks. It is laced with great deal of his own personal experience, testimony and wisdom, largely to the benefit of readability and background, although there are occasional excursions into sentimentality and over-rosy prose. The author does not shy away from controversy, claiming that Samora Machel’s plane was deliberately brought down; something that remains in the realm of speculation. Occasionally there is a flash of real humour: ‘a lucre continua’ (in a contribution apparently and presciently written in 1992) will strike a droll note with many of his readers. But there are obvious errors: the decade of the 1950s was not the ‘point of high apartheid’ (p. 119).
Sachs points out that formulaic approaches to legislation by judges resorting to dictionary definitions have been replaced by constitutionalism. This is particularly relevant to the complex issue of socio-economic rights where the possible confusion of judicial and legislative roles has often raised red flags. Sachs supports an approach based on reasonableness.
He has much to say about the Truth and Reconciliation Commission. His opinion that its published report is ‘beautiful … well-written, vivacious’ will not be shared by everyone. But he justifiably points out that it provides a common solid narrative of the past that reduces the possibility of denialism. And he believes it helped dissipate anger about the past that can cloud much-needed objectivity. Certainly it fills a void created by archival silences and absences, another of Sachs’s preoccupations.
Law, argues Sachs, needs to fit the people. Making a case for community courts, he supports the fusion of traditional and modern legal systems. And above all he reiterates the call of Jürgen Habermas for ‘constitutional patriotism’, a concept clearly unknown to significant sections of the South African state. Sachs sees the Constitution as a bridge from past to future as well as a memorial to those who struggled against apartheid in various ways; the expression of an ideal and protection against base human instincts. In similar vein he puts in a good word for the International Criminal Court.
At a personal level Sachs provides moving and relevant comments about the loss of his right arm and other severe injuries when his car was blown up by the apartheid regime in Maputo. As with his previous experiences of detention and solitary confinement, he chose to think and write about it in terms of future hope: in this case his famous book The Soft Vengeance of the Freedom Fighter. Correctly, he emphasises the moral power of reversing turpitude through fairness and reconciliation. Ultimately, in classic liberal fashion it comes down to exercise of conscience rather than political correctness or expedience.
Sachs is particularly interested in art, architecture and symbolism and comments on the significance and ambience of the location and design of the Constitutional Court amid remnants of Johannesburg’s Old Fort prison. He is an advocate of adapting symbols of the past to teach lessons rather than their destruction. Such has been the fate of murals at the High Commission in Trafalgar Square. Sensibly, he suggests a new location for University of Cape Town’s statue of Cecil Rhodes in a context that teaches lessons about the past: ‘In this way we could have the last laugh on Rhodes.’ In a country of febrile rhetoric and mindless protest, it is refreshing to read such sensible and liberal views.
Such is his approach to the debate about communitarianism and libertarianism and he comes up with a typical Sachs compromise termed dignitarianism that applies equally to groups and individuals. It relates to his belief that the past, present and future of South Africa belong to its people and that despite the eminence of leaders like Nelson Mandela ultimately the nation is in the hands of ordinary citizens. Sachs considers this in optimistic terms, although not all his readers may agree with this.
Like many South African writers, Sachs asks: was the struggle worth it? He cites freedom of association and expression and the absence of repression as the basis of resounding affirmation in ‘accomplishments … of historic proportions.’ And against widespread corruption and malfeasance, the Constitution is our protection supported by what Sachs correctly describes as the banal task of good governance transferred from the heroics of the struggle.