Albie Sachs - Former Judge, South Africa Constitutional Court HARDtalk

Hello, and welcome to HARDtalk. I'm

Shaun Ley. In December, South

Africa's ruling party the ANC

chooses a successor for league of

President Jacob Zuma. Corruption

allegations denied by the President

continued to swell, but he has

survived them all. Albie Sachs is

another survivor, but one of a

different kind. He survived

imprisonment, exile, and being blown

up by the country's security forces,

and he helped write the

postapartheid constitution. He

thinks it is one of the world's

best, so why do others, especially

the young, say that the constitution

is against us, especially if you are

poor?

Albie Sachs, welcome to HARDtalk.

You defended black South Africans

under apartheid laws. You are in

prison under those laws yourself.

You then helped write the most

fundamental law of all, the

constitution for postapartheid South

Africa, and then sat on the

Constitutional Court to enforce that

constitution. Is there enough

respect, do you think, for the law

in South Africa today?

It is so

fascinating to watch, which is the

law is playing a central role in our

country. -- because the law. The

more disrespects there is for it,

the more respect there is for the

way it is responding. I have been

off the Constitutional Court now for

six or seven years, so I am not

bragging about myself, it is my

colleagues, another generation. I

think they are doing extraordinary

work. One weapon is the

constitution, but that is not just a

document, a set of words. It grew

out of our history. It grew out of

our pain. It grew out of our

eagerness to find a way, how can we

live together in one country, when

we are trying to kill each other? It

grew out of our draw in on the best

the world had to offer in terms of

governance, the rights of people. It

is a very progressive constitution

in its terms and we have strong

institutions to back it up. And one

of the reflections that has come to

me recently is that you need three

things, and if anyone of them

missing you are in danger. You need

a good constitution. I don't know

how you guys in England have managed

a couple of 100 years without one.

You have managed. But you need a

good constitution. You need

constitutionalism. That is something

in the culture of the society, not

just a document, a sense of right

and wrong, fair, unfair ways of

doing things, and you need

institutions that can be invoked,

that work. And what has been so

striking in South Africa now for all

the allegations, the evidence, the

leaks that have come out, the very

powerful condemnations of very high

figures in our society, the

institutions have remained firm. One

of them, the public detector,

created in a chapter in the

constitution, chapter nine,

institutions for the protections of

democracy. That includes the public

protector, like the ombudsman, but

much more powerful. It includes the

Independent Electoral Commission.

Can you, now, is struggling so hard,

partly because there is a lack of

faith in their Electoral Commission.

-- Kenya, now. We had elections last

year without a single complaint. It

includes the Constitutional Court,

the auditor general. A whole series

of bodies protected by the

constitution.

Let's pick up on one

of those, the public detector. The

previous public protector had drawn

up a report, you will be aware of

this, over the state of capture, she

called it, in the relationship

between the President and a corrupt

business family. She urged the

President to decide who chaired the

enquiry. Another institution

established by the constitution

said, under section 84, this power

can only be exercised by the

President. Whereupon the new public

protector says, no, no, there are

numerous reasons to believe the

President is subject to a conflict

of interest here, so he cannot

possibly appoint the chairman of

this particular committee of a

commission of enquiry because he

would have a direct personal and

financial interest in the outcome.

Two institutions, one constitution.

You are on the Constitutional Court,

you helped write the constitution.

Who is right?

It is not for me to

answer. The very issue now is being

debated in the Constitutional Court,

and on one hand, the constitution

says the power to create commissions

of enquiry belongs to the President.

On the other hand, the

recommendations of the public

detector can be put into force, and

she says, in this particular case,

you would appoint the commission of

enquiry. We are not going to say

that, but you wouldn't choose the

judge to have that. The chief

justice will choose. And then you

will have to. It is the kind of

question you put to final year law

students. For them to grapple with.

And it will be making law. So it is

not for me to pronounce on it.

And

you would argue there is no right

answer on that, but twin, the

institutions have to resolve this?

I

wouldn't say there is no right

answer. I think there is a correct

answer. I won't say what I think it

is, that my colleagues, or those who

would be my colleagues if I were

still on the bench, they will decide

that. What I can be sure of is that

they will give a soundly reasoned

answer. I am pretty confident that

whatever the answer is, it will be

accepted.

And that is the key thing,

isn't it?

Whether it goes in his

favour or against him, it will be

accepted.

Do you think the public

protector's Palace need to be

strengthened, now, watching this in

operation over the past few years,

in a highly political environment?

It can't get more political than

investigating the President.

I think

what the public protector needs is

not so much more power, the power is

there in the constitution, but more

re- sources.

Why do you think there

have been a growing number of

attacks on the constitution? It does

seem to have come more contested in

the last couple of years than in the

first decade, decade and a half of

poster partied South Africa.

The

challenges are coming from two,

well, I don't even have the extra

arm to show how far apart they are.

Just imagine this arm.

Indeed, as it

once was.

As it was. On the one

hand, the challenge, the judges are

overreaching themselves. That comes

from supporters of the president

today. On the other hand, it comes

from young people saying that this

constitution is standing in the way

of real transformation of land

redistribution in the country. It is

blocking the way. And you heard this

first hand, didn't you? When you

delivered that lecture back in the

University of Western Cape and some

of the audience said to you, every

generation has its mission, yours

was political liberation, ours is

economic liberation. And it is

fantastic to hear that challenge. I

have spent a lot of time involved

now and what is pompously called

intergenerational discourse, and it

is terrific. Those young people,

they like to see that I have got

some spirit and some stories to

tell, and I like the passion, the

eagerness, the idealism, the

exquisite and beautiful use of

language. The country can only

benefit when people are thinking,

even if the thought is sometimes as

cheeky and irreverent as my thought

was at that age. It stirs up the

country.

There is a harsh edge to

this. It is the economic reality in

which many South Africans are

living. Many of those young people

you are speaking to, their families,

that is what they have grown up

with. Whatever the promise of a

multiracial South Africa in which

black South Africans and coloured

South Africans took their place as

equal citizens with white South

Africans, the economic reality is an

unemployment rate of 54% for young

people and an overall unemployment

rate of 27% for everybody. Far too

high. Intense, entrenched poverty. A

sense that, really, South Africa is

not to South Africa they were

promised. Jonathan Jansen says that

when speaking to students, if the

late Nelson Mandela gets any mention

at all it is is a sellout. The man

who led South Africa into a soft

transition which left white

privilege undisturbed and black

poverty and diminished. He is right,

isn't he?

He's wrong. He's wrong,

wrong, wrong. He's not wrong to say

that that is what people saying, but

what they are saying Mrs almost

completely the reality of what was

achieved. -- misses almost. We had

to destroy the system of apartheid

to open the way to economic

transformation.

But it hasn't

happened.

If we tried everything at

once we would have had chaos,

disaster, collapse. People would

have said black majority rule just

leads to chaos. So we dismantled the

institutions of apartheid, we

integrated the army, and we gave

power to Parliament to bring about

transformation. If Parliament has

not done enough, that is a very

valid question, but don't blame

Mandela, don't blame the

constitution. I am not a lawyer's

lawyer, who believes in the law as

such. But we got so much into that

constitution, and you read it, the

text, the language, transformation

is for change. The argument that I'm

advancing, in many ways, use the

constitution. Don't trample on it.

It is your biggest weapon to bring

about a second liberation which will

be the economic liberation.

On that

second liberation, do you back the

argument there should be an

amendment to the constitution? This

has been advanced by Julius Lim of

the economic freedom Fighters, which

would actually allow the state to

appropriate land without

compensation. His argument is

simple. We are told and arrows that

we own the land, but we don't own

the land. The distribution of land,

land ownership, it is still really

concentrated in a small number of

hands, just as it was before

apartheid was abolished.

He's

absolutely right that the patterns

land ownership have changed very

slightly. It is not as though

nothing has been done. Something

like 80,000 people who were

dispossessed under apartheid got

their land back or got money back.

And programmes for land reform

remained to be implemented. So that

aspect is completely correct. It is

possible to confiscate land,

expropriated land, at a valley is

well below market value, if you

apply the constitution. -- at values

well below.

Section 25?

Yes, section

25, if it is lying fallow when

people needed to housing, it can be

used. That could be taken into

account. If the land was bought for

a song, if the government has

invested a lot into loans to the

farmers, all of that can be taken

into account. None of that has

really been tried, so try that

first. The problem with doing it

without compensation is that there

is no discipline at all. You can

have state bureaucrats seizing the

land, dishing it out to their

friends. We don't want that.

You are

worried about the precedent set by

Zimbabwe?

I don't want to mention

particular countries, but it is not

restricted to one country. It has

happened in many countries, where

people who fought bravely for

freedom Gottfried, but then used

their position in the state to

accumulate enormous tracts of land

for themselves and their families.

-- fought bravely for freedom got

freedom.

Those allegations have

remade get some in South Africa as

well, but we will leave that for

now. Who owns the land, who had a

stake in the nation, that was an

important part of the campaign.

We

used to say, Africa come back. In

that sense, it has come back, in a

kind of moral sense, a leadership

sense, the people are calling the

shots politically. Africa, and

overwhelmingly black Africans, we

hear the different languages being

used in Parliament, in this debate,

but we have not got Africa back in

the sense of direct connection with

means of production, with the soil,

with the way people live. That has

to be done, it is a very valid claim

that is being made.

During that long

struggle, the first part of that

struggle, because from the sound of

that thinks some of these struggles

continue, you spend months in

solitary confinement. Do you think

you still bear the scars of that

area inside?

I do. You never get

over solitary confinement. Italy is

a residue, a repository of deep,

deep sadness. -- it leaves a

residue. Ironically, I can't explain

it, when I was alone up, and I

survived, it will away that misery.

So that was almost a catharsis of

what had gone before?

It was like

saying, OK, they tried to kill you.

And I survived. I survived, you

know? People say the definition of

an optimist is that the glass is

half full. I was a mystic. They only

blew off my arm. I survived. That

was 1988 and I still feel that

today.

The period of solitary confinement

was in the 1960s, and you spend how

long...

was in the 1960s, and you spend how

long...

It was 168 days the first

time and about three months the

second time, with some sleep

deprivation thrown in.

And you talk

about the terrible moment when you

realise that they had actually

beating your body, not physically be

the new, but had kind of put you

under such strain and stress that

you started to talk, and you didn't

talk about people who they could

get, you talked about people who had

gone abroad or were passed. Did you

fear that, if that process had

continued much longer, you would

have been so broken that you would

have?

I don't know, it is possible.

I got through the first session

completely, I didn't say a word, 168

days. The second time it was a much

rougher treatment and sleep

deprivation, I think something in my

food, I collapsed on the ground,

they poured water on me, kept my

eyes open. And my choice was try and

control my breakdown, because others

had withstood it for three, four,

five days, collapsed completely. And

then, fortunately, the way these

things happen, somebody... Another

person who had undergone this in

another cell put in an application

to court, I heard about it, I

smuggled out a tiny little note

about my own experience, and the

court actually, at that stage, put a

stop to the interrogation. So who

knows? I might not the sitting here

today that hadn't been for that

court application.

You talk them

about comrades are dead, people you

thought they couldn't get out, to

give them something.

At that stage I

was doing that, they were preparing

to come back and get me afterwards.

I started off by saying, I am making

this statement under duress, and so

on. They just collided it all from

the actual document that they had.

But afterwards I discovered, I had

complained to a magistrate. It is

thereon... You know, we used to have

these flimsy pink and green carbon

copies, and there it is. If anybody

wants to...

Faint, but still

preserved for all eternity.

That I

actually complained at the time.

You

mentioned a couple of times already

the subsequent act, the attempt to

murder you buy South African

security services. What do you

recall that they?

It has shaped me,

and it has not only shaped me

physically, it shaped my thinking.

Because when I got a letter, I am

recovering in a London hospital,

don't worry comrade, we will

eventually, avenge me? We are going

to cut off their arms, blind blind

in one eye? Is that what you want?

If we get freedom, we get democracy,

we get justice, that will be my soft

vengeance. Roses and lilies will

grow out of my arm. And since 1988,

soft vengeance has been my theme.

And getting the Constitution,

helping to write a constitution,

sitting on a court that is upholding

the Constitution, it is all part of

my soft vengeance. And soft

vengeance is much more powerful than

hard vengeance. Hard vengeance is we

are stronger, we are doing to them

what they did to us. Soft vengeance

as the triumph of the ideals.

All

the pain you went through, all that

period of recovery and

convalescence, all, I guess, the

fear that at some point you may not

have made it, you didn't feel any

anger?

On the contrary, I felt joy.

That I had survived, and it is for

something. It validates all the

pain, the hardship, the misery, the

doubts. Yes, we are getting

democracy in the country. Yes, we

have a court that will stand up to

the President, to Parliament, to

wherever, if necessary, in terms of

the Constitution.

And yet you say

that, when you took a very young son

Oliver to the scene, planning to

tell him exactly what had happened

to his proper, you couldn't quite

bring yourself to tell him the full

evil of the system that you had been

fighting -- Papa.

I could tell him

about the bomb, the event. Something

inside me just blocks me. I didn't

want to tell him that his mum and

his dad would have been breaking the

law just by kissing each other, let

alone conceiving him. I didn't want

him to hear that from me.

Because

his mum was black and you were

white.

She is black, all would have

been classified as black, I would

have been classified as white. I

didn't want him to carry that burden

from his dad. He will learn about in

history, from others. He is already

learning about it.

And for you, that

is still the most revolting thing

about the system, the inhumanity of

that, as much as the violence, as

much as the terrible thing, like,

for example, the agents who tried to

kill you.

Yes, it is the humanity of

the conception, that some people are

worth more than other people. This

is foundational, and it is that

denial of basic human dignity. And

that has been a huge achievement in

South Africa. There is so much that

is wrong now. It is not only

corruption, it is unemployment,

there is violence, racism in our

society is still very, very strong.

But we have got a country. We didn't

have a country before South Africa.

We have got a Constitution, we have

got institutions, and we have got

people who speak their minds.

Leaders come and go, but the people

never die. It is a very romantic

notion, but I think it is a notion

worth holding on to, that people

never die. I wonder if there is a

bit of romance that perhaps has got

in the way the transition for South

Africa, and added that perfectly

understandable sense of camaraderie,

that sense of loyalty comrade 's who

fought in the struggle for so long,

and the ideal of the African

National Congress, to the principal

and the belief that you all swore

to. Do you think perhaps some people

have held onto that too long, and

perhaps being too willing to put, in

a crude way, party before country?

No, the values you can never hold

onto long, never, never, never. And

the value has always had that

critical self reflection element to

it. Bolivar, who I am speaking about

a lot now, he was so open-minded, so

willing to embrace new ways of

looking things, but those core

values of non- racism, never change.

That shouldn't change. The loyalty

is to the values.

You cannot have

failed to see that, in a succession

of votes of no confidence against

Jacob Zuma, for all the allegations

against him, the ANC MPs loyally

trooped through the lobby supporting

the President, and in the first

ballot which is held with the secret

ballot, the most recent, suddenly

perhaps 25, maybe as many as 30 ANC

MPs vote against him. That is a

revelation, isn't it? That actually

this is a corrosive thing, this

loyalty to party. Only when they are

protected by the secret ballot do

they vote with their conscience.

It

is even more complicated than that,

because the story was, many more

would have voted in favour, except

they felt it wasn't for Parliament

to change the president of the ANC.

The ANC is having a conference in

December, the ANC has to do it

itself.

That's fine, but if you are

one of the people on the end of all

that, the ordinary people of South

Africa, you can say we can have this

debate and talk about it, but

nothing changes. And we here for

example all these allegations, the

public prosecutor finds he is $44

million, I think, have been spent on

sorting out his property for

security, he is told to pay some of

it back and says I am not going to

pay it back. Nothing changes,

nothing happens.

No, no, no. He was

ordered to pay some of it back, and

he paid it back.

Only because the

court intervened.

Yes, the court

intervened and his own counsel said

we acknowledge he has to pay it

back. That is not insignificant. In

fact, I would say it is hugely

significant.

Would it be better for

the country there was a change of

president sooner than 2019?

I am not

going to get drawn into that simply

because I don't think it is right is

a former judge. It is a question I

would love to offer my opinions on,

but...

We would love you to do so.

I

require... It is a kind of judicial

prudence. I won't answer.

Are you

disappointed with South Africa as it

is today? Is it that sense of the

curate's egg? Good in parts?

I think

no, no. I am much more affirmative

than that. It is partly... I lived

in Mozambique after independence. It

was fantastic. We were so excited,

we were lifted up by this

revolution, and it clashed. --

crashed. Bitter civil war, just

chaotic.

Are you saying at least

South Africa isn't as bad as that?

We haven't had that, it hasn't

happened. And collections are

meaningful. We had a higher

percentage polled around municipal

elections last year than in America

had for their president, and there

wasn't a single complaint

afterwards.

Let me ask you a

question, and it has nothing to do

with individuals.

Yes.

Whoever he or

she is who takes office after summer

of 2019, watches South Africa's next

president came to do differently

than the previous three presidents?

I would hope, whoever comes

president of the ANC, who was in

automatically the future president

of South Africa, because people have

a vote in general elections after

that.

They do, but it has been the

ANC so far.

Well, giving strong

emphasis on restoring integrity of

institutions, restoring the values

of non- racism, in creating

conditions for serious and deep

going economic transformation, but

getting advice from as many sources

as possible, that with a strong

initiative in that regard. And maybe

cutting down on some of the... The

bitterness, the sharpness, the toxic

elements of our debate. However it

might be.

Albie Sachs, former

justice of the Constitutional Court,

campaigner for the end of apartheid,

thank you so much for being with us

on HARDtalk. Thank you.