Albie Sachs and Transformation in South Africa

From Revolutionary Activist to Constitutional Court Judge

Drucilla Cornell, Karin van Marle, Albie Sachs

• Publisher: Birkbeck Law Press
• Year: 2014
• ISBN:
  9781317819585
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Many critical theorists talk and write about the day after the revolution, but few have actually participated in the constitution of a revolutionary government. Emeritus Justice Albie Sachs was a freedom fighter for most of his life. He then played a major role in the negotiating committee for the new constitution of South Africa, and was subsequently appointed to the new Constitutional Court of South Africa. Therefore, the question of what it means to make the transition from a freedom fighter to a participant in a revolutionary government is not abstract, in Hegel's sense of the word, it is an actual journey that Albie Sachs undertook.

The essays in this book raise the complex question of what it actually means to make this transition without selling out to the demands of realism. In addition, the preface written by Emeritus Justice Albie Sachs and his interview with Drucilla Cornell and Karin van Marle, further address key questions about revolution in the twentieth- and twenty-first centuries: from armed struggle to the organization of a nation state committed to ethical transformation in the name of justice.

Albie Sachs and transformation in South Africa: from revolutionary activist to constitutional court judge illuminates the theoretical and practical experiences of revolution and its political aftermath. With first-hand accounts alongside academic interrogation, this unique book will intrigue anyone interested in the intersection of Law and Politics.

Chapter 1 Comrade judge: can a revolutionary be a judge?

DOI: 10.4324/9781315819341-2

Drucilla Cornell

It is an honor to have this opportunity to engage critically with the political and moral philosophy of Emeritus Justice Albie Sachs, and with his significant contributions to the development of the constitutional jurisprudence of the new South Africa. I will first discuss Sachs’s history as a participant in the struggle to overthrow apartheid and the attempt to replace it with a just society. Sachs was an African National Congress (ANC) member, and as a lawyer and law professor, he was involved with articulating, defending, and helping to institutionalize ethical and quasi-legal limits on the armed struggle itself. In other words, Sachs engaged in a careful analysis and critique of the role of law and of ethical limitation in revolutionary struggles long before he became a judge. Sachs played a major role in arguing and developing a Code of Conduct that went against the grain of revolutionary movements that practised the idea that if a war was just, the means to promote the just ends were automatically legitimate, including the most brutal means, such as torture. From the beginning, then, Sachs has been thinking about the role of ethics and law in revolution in a way that is almost unique, because he was doing so in the course of an armed struggle. Sachs himself had been a fighter in the underground, but not as an armed combatant. Yet he was clearly part of an organization that felt it had no other choice than to commit itself to armed violence. I will examine the relation between Sachs’s early work as a revolutionary and his constitutional jurisprudence by introducing Étienne Balibar’s notion of “civility,” a principle of anti-violence which I will connect with Sachs’s recent defense of the role of uBuntu-botho in the contemporary jurisprudence of South Africa.¹

Following a number of other thinkers, including Emeritus Justice Laurie Ackermann, I will argue that South Africa had a “substantive revolution,” and that Sachs has made a major contribution to a jurisprudence worthy of both words in that phrase: “substantive” and “revolution.”² The phrase “substantive revolution” comes from Hans Kelsen, who argued that there were two kinds of revolution.³ What Kelsen labeled a “full procedural revolution” is the kind of revolution we are most familiar with: the revolutionary party seizes state power and completely overthrows the government. Practically, this means that all the laws, all the officials, and all institutions of the government are liquidated as part of the old order — sometimes, unfortunately, literally liquidated, in that the officials are executed — and that an entirely new order is established with new laws, new officials, and new institutions. By contrast, a substantive revolution is one in which the ruling party legally transfers power to the revolutionary party or parties. The moment when the South African National Party voted itself out of power by entering into negotiations and finally getting the racist Parliament to legislate the new non-racial, democratic constitutional order, may be the only example in the world of what Kelsen might have considered a truly substantive revolution.⁴ One reason why the new South Africa has captured the imagination of so many activists and revolutionaries around the world seems to be that it is this other kind of revolution, and whether or not it falters may indicate whether or not this kind of substantive revolution is workable. Often, the Court has used the metaphor of the bridge as a way to understand the transition from the past to the future. Whether or not one likes this metaphor — it was often used as a justification for the Truth and Reconciliation Commission (TRC), which, amongst other things, controversially gave amnesty to perpetrators of the worst kinds of crimes if they came forward with the truth — it at least points to a notion of revolution that does not seek to simply obliterate the past, but instead to morally disenfranchise it, which in the case of South Africa means something extremely complicated.

The famous “peaceful transition” is somewhat of a misnomer, since it came after an extended armed struggle, as well as wars on the borders of Angola and Namibia. Yet the ultimate transition took place through negotiations, including negotiations over the foundational principles for the new Constitution. The question raised by Kelsen, which the new Constitution and constitutional dispensation had to envision, is: what is the substance of the revolution, if it does not literally “do in” the old government and start a brand new one? If it is truly revolutionary in the moral and ethical sense, it promises a new moral order based on all the ideals and values that were completely negated, not only by apartheid, but by the economic system of superexploitation and subordination that went with it. This kind of revolution is extremely complicated, and one key to understanding the first 15 years of constitutional jurisprudence in the new South Africa is the attempt to give meaning to what the substantive revolution would be in a dispensation committed, as Sachs often tells us, to dignity, freedom, and equality for all.

It is important to note, as I wrote earlier, that a substantive revolution in its second demand, which is for a revolutionary break with the old ethical order and the creation of a new ethical order, is not one for which there are rules or a blueprint by which what has happened in South Africa can be neatly judged. If one looks at the economic realities of South Africa, it would be only too easy to say that the revolution has failed, and that South Africa is just one more example of how neoliberal capitalism destroys any aspirations to an alternative ideal of economic development in the name of justice. Clearly, the reigning faction in the ANC has moved away from socialism, even as it is equally clear that on-the-ground movements have not done so. The relationship between the Constitutional Court’s attempts to configure a new ethical order and these mass movements is complex indeed.⁵ My claim is a more modest one: that the Constitutional Court has taken seriously its legal and moral mandate that a substantive change in the ethical reality of South Africa — what Hegel would have called Sittlichkeit — must be a guiding aspiration to all of the Court’s work. This is a different claim from the question of whether the Court has “failed” or “succeeded” in realizing a substantive revolution, precisely because the project of configuring what such an ethical transformation would mean is obviously ongoing, and one that, of course, runs into the severe limitations placed upon it by the brutal realities of neoliberal capitalism. The big question beyond the scope of this chapter is: to what degree the aspiration to Gleichheit in Recht (equality in right) disrupts the material demands of neoliberal capitalism. Even though I cannot dare to answer this question here — this would take us through a reworking of Marx’s critique of Hegel — I think that we can at least see in Sachs’s jurisprudence, and in the work of most if not all of the judges on this Court, a commitment to ethical transformation in the name of a critical telos regulated by the ideal of dignity and its corresponding ideals of freedom and equality.

I will also raise some questions as to whether or not the Constitutional Court and Sachs, with their important regard for the limits of the judiciary, have pushed the ethical and political principles of the Constitution far enough to challenge the establishment of a system of neoliberal capitalism as the main model of economic development, which may dangerously undermine the commitment of the Constitution to what Étienne Balibar has called “equaliberty,” the radical identification of freedom and equality.⁶ In the Freedom Charter of the ANC, the notion of a just society was inseparable from the struggle for an alternative to capitalism, whether one was to think about that as either social democracy or democratic socialism. Famously, the Bill of Rights in South Africa protects socio-economic rights as on a par with the more standard liberal rights. However, these rights include the phrase “within its available resources” in the enumeration of the rights themselves. For example, the right to housing reads as follows: “26(1) Everyone has the right to have adequate housing; (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.”⁷ But the question arises as to how resources could be made more available by alternative systems of economic development. It is of course not the role of any constitutional court to develop detailed plans of economic development. But the question still remains whether the South African Constitutional Court, under its ideals of civility and equaliberty, which I will defend as uBuntu-botho, should go further than it has to challenge specific policies and economic legislation that would make the limitation of resources inevitable. In this chapter I will draw heavily from Sachs’s recent judicial autobiography, The Strange Alchemy of Life and Law.⁸ The reason I rely on this autobiography to the extent that I do is that is draws the connection between the ANC’s attempt to “civilize” the armed struggle — as implausible as such an effort might seem — and Sachs’s own role in developing a jurisprudence, including a jurisprudence of uBuntu-botho, which at least aspires to regulate itself in accordance with one of Étienne Balibar’s critical concepts of politics: civility. In other words, it is not simply Justice Sachs himself — although he played a major role in the development of the Code of Conduct in the armed struggle — that is central here, but, more importantly, the attempt at least to recognize that violence can never be a neutral means, and that the politics of the armed struggle itself will ultimately, for better or worse, infect the society that is to be created after a revolutionary shift in power.

The ethical limitation of violence: civilizing the revolution, civilizing the state

Emeritus Justice Albie Sachs became a freedom fighter at a very young age, and suffered for it. As a young practising lawyer, he was detained in solitary confinement for three months under what was called the “ninety day law,” which allowed suspects to be locked up in solitary confinement without any charge being brought against them. Sachs describes how horrifying it was to survive in solitary confinement:

How difficult it was to be brave! Before it happens, you think that when you are locked up you simply bare your chest, retain belief in your cause, and hold out forever. The reality is totally different. You are living in a little concrete cube. You stare at your toes, you stare at the wall. Your toes, the wall, your toes, the wall, you do not know how long it is going to last. There is nothing to do. There is no one to speak to. It is an inhuman existence.⁹

Sachs described how he kept himself “human” by scratching marks on the wall, making up songs to sing to himself, and doing anything he could to give himself a sense that this would soon be over, and that he had remained human throughout. On the ninetieth day he was released, and had barely had a minute to celebrate his freedom when he was arrested and detained again, this time for 78 days. Two years later, he was detained once more. This time he was subjected to torture by sleep deprivation. One of the crucial points in Sachs’s argument against torture is that it is always about dehumanizing the tortured person, and it cannot be anything else. Simply put, therefore, it is always wrong. Sachs describes how the information his torturers sought to obtain was already out of date. He gives us his own description of torture as follows:

It was the worst, worst moment of my life. It was not a hypothetical situation of the kind that some academics conjure up when discussing the costs and benefits of the government using torture. And, as in 99.9 per cent of cases where forms of torture are used, there was no ticking bomb nearby when I collapsed on the floor, they poured water on me, and they lifted me up. I still remember those thick, heavy fingers prying my eyes open. I collapsed again, more water, the shoes shuffling around me, some brown, some black and their sense of quiet, methodical urgency, the muted triumph as they were now breaking through my resistance. Any information I had at that stage was stale. Possibly they wanted to get me to be a witness against somebody who had also been in the resistance. That would have been a double triumph, because I could then have been projected as a traitor, as an instrument of the very state I had been opposing. They wanted hegemony, dominance, power, control, mastery. The practice was systematic, it was organized, it was condoned, it was part of policy.¹⁰

Sachs learned he would be considered by his own government to be a terrorist: he went into exile as one, and was explicitly labeled as such. He found out that he was a “terrorist” when he was denied a visa to attend a conference in the United States. Only because Washington changed its policy on the struggle in South Africa was the designation of terrorist dropped, at least for the purposes of visiting the United States. We often hear the phrase that someone’s freedom fighter is someone else’s terrorist, and the word “terrorist” is notoriously hard to define. Sometimes, the definition turns on the question of whether or not one believes that the struggle in which the so-called terrorist is involved is one, as in the case of the ANC, for justice and against a crime for humanity, apartheid. However, Sachs’s own experience of terrorism not only led him to condemn it as absolutely wrong — no further discussion needed — but also led to his understanding that revolutionary movements that are fighting for rights and justice must be limited by the very ethical ideals they stand for, even if they have no choice but to engage in an armed struggle. Sachs set an ethical limitation on the armed struggle, which would separate that struggle from terrorism_

What made it particularly ironical that we should be punished as terrorists, and in some ways made it especially dreadful, was the fact we were actually strongly against terrorism. In the late 1960s and early 1970s, there were “isms” all over the place. Capitalism, socialism, imperialism, Stalinism, Trotskyism — only social democracy didn’t fit into the “isms.” And one of the “isms” that we had denounced on principle in our movement was terrorism. To respond in kind to the violence of apartheid was just wrong. Terrorism was based on the use of indiscriminate violence, directed at civilian people because they happened to belong to a particular group, race, or community. It was totally lacking in political intelligence. It was completely antithetical to our ideals. We were fighting for justice against the system of white supremacy, not against a race.¹¹

What makes Sachs’s own history as a revolutionary so important is not only that he had a personal moral code against torture, but that he was asked to write a Code of Conduct for the armed struggle in South Africa, which may be the only armed struggle in the world that developed a detailed Code of Conduct for itself. Sachs argued that the person who tortures loses his humanity:

What does terrorism do to those who use it? What kind of person do you become? How could you claim to be a freedom fighter when you kill indiscriminately? I am sure that was the underlying morality, sometimes stated, sometimes implicit. And it was a morality of justice that turned out to be strong, not weak. It constituted a powerful unifying force inside the ANC, enabling it to survive thirty years of exile with no major disputes or breakups, at a time when virtually all other exile movements splintered.¹²

When Sachs was Director of Research at the Ministry of Justice of Mozambique, Oliver Tambo asked him to come to Lusaka, Zambia, where the ANC had its headquarters. Tambo told him that in cases when the ANC believed they were dealing with security forces who had infiltrated their organization, they were occasionally using torture to get information from them. Tambo asked Sachs to write up a Code of Conduct that would absolutely forbid torture. This Code of Conduct, given the democratic principles of the ANC, was then passed out to as many people as possible, both in exile and in the underground, and the various opinions of the different branches were discussed at a conference in Kabwe, Zambia. Sachs’s Code of Conduct is extremely elaborate, and he describes it as follows:

I remember the debate vividly. There was overwhelming support for the Code of Conduct as a whole. The delegates were happy with the idea of classifying offences against the organization into three categories, each with its own form of investigation, its own procedures and its own penalties. This presupposed graduated responses to three main categories of people: those who were merely unduly disruptive at branch meetings; those who drove while drunk, or committed offences such as assaults or theft or abuse of women; and those who allegedly had been sent into the organization in order to kill its leaders and wreck its functioning. Tribunals akin to courts were established for the second and third categories, with judicial officers who would be independent, as well as the equivalent of prosecutors and defense counsel, and a right of appeal. It was clear at the conference that the idea of establishing an appropriate system of legality inside the organization strongly appealed to the members.¹³

One of the most difficult questions was whether or not there could be circumstances that were so exceptional that torture could ...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Dedication
• Acknowledgement
• Preface
• Introduction
• Comrade judge: can a revolutionary be a judge?
• Abandoning certitudes, becoming human — for a jurisprudence of generosity: an essay in tribute to the work of Albie Sachs
• Interview with Emeritus Justice Albie Sachs
• Notes
• Index