Renegotiating the Nature of Citizenship: Constitution Making in South Africa

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Yale Journal of International Affairs: So for those who may not be as familiar with the historical formation of South African democracy, I wonder if you could describe the specific role that you played in creating what was then a new national constitution in 1996. What role did the constitution play in forming and developing a democratic state?

Albie Sachs: Well, let me set the scene a little bit. The common narrative is that after 27 years in jail, Nelson Mandela was freed in the beginning of 1990 and with no anger in his heart, he led the nation to freedom and the new constitution just somehow emerged. And it’s a very unfortunate story, because he played a fantastic role, be proud as anything of Mandela and the role that he played, but it leaves out the very arduous, very strenuous process of constitution making, in which he was a very important leading figure, but not a very active person in terms of the conceptualization and the finalization of the constitution. There were literally thousands of us involved in different ways.

I’d been in exile for 24 years and after being blown up by the bomb, I came out of hospital and someone said to me – I was very, very weak then -“What would you like to do?” And I said, “I’ve been offered a fellowship at this university and that university.” And she said, “What would you like to do?” And I said, “I’d love to work on preparing for a new constitution.” Now this would have been late 1988. And the next thing I knew, this was almost miraculous, I was in an office in London, Institute of Commonwealth Studies, South African Constitution Studies Center, and as it turned out, it gave me something like 15 months to focus on just thinking about, imagining, envisaging a future constitutional order for South Africa, and dealing with a number of key issues. I don’t want to exaggerate my role. I was part of a long movement.

[On consociationalism]

We’d adopted the Freedom Charter in 1955 that set out the vision that South Africa belongs to all who live in it, black and white. And in a sense that was the key ingredient and the biggest stumbling block and ultimately the biggest springboard to the achievements, because the then South African government had a notion of protecting group rights, in particular the rights of the whites. They wanted to construct a constitutional order in which the white community, who then were 10 – 15% of the total population, but who owned 87% of the land by law and probably 95% productive capital in the country, [were protected] from being dislodged and also from being humiliated, driven into the sea, and treated in the way that they had treated the majority. And they wanted to pivot the whole constitutional order around the protection of fundamental community interests like that. And they advanced the principles of consociationalism associated very much with Professor Arend Lijphart, who is a Dutch American, who taking the example of Belgium, said there are some countries in which 50% plus one doesn’t provide a lasting democracy, deeply divided countries.  What you need is some form of consociation between the different groups, each having control over affairs of fundamental importance to themselves, and then some mode of functioning by a consensus between the different community groups.

In South Africa, that would have been a disaster. It would have entrenched white control of the economy and it would have made race the centerpiece of the constitution, whether declared as race or indirectly and thinly disguised. Instead of the constitution being a document that actually helped to constitute a nation with a common citizenship, it would be a document that would maintain white privilege, but constitutionalizing it without the repressive regime of apartheid. And so, the central ideas became the key issues, not at all well covered in the literature. It was a very hard process. It took us six years. We had breakdowns, we had massacres, low grade civil war. Again, this notion that the marvelous Mandela got together with a wise de Klerk, they sat at a table, and they drafted a constitution that was fair all around, it’s totally devoid of truth. In fact, they didn’t get on well. They were both rather forceful personalities used to being the leaders in their particular area. Their body chemistry was bad. But they had sufficient savvy and statesmanlike qualities to try and ultimately find a consensus and a way forward.

[On the process of constitution making]

We had very, very fierce debates over the basic conception of the new constitutional order, but also over the process. The two were very much interrelated. And maybe the process is of more interest even than the substance, because we emerged with a democracy, I would call it a people-centered democracy, encouraging participation, but with all the basic protections that a modern democratic order should provide: institutional and very comprehensive bill of rights and so on. And we spent an enormous amount of time on process. We started off with talks about talks about talks. How do you move from a situation where you’re literally fighting each other trying to kill each other into a situation where you’re sitting around a table negotiating. And that took some years and a lot of thoughtfulness and eventually we moved from talks about talks about talks to talks about talks. And we achieved the talks about talks when Mandela was released, the ANC was unbanned, exiles like myself could come into the country, other prisoners were released, those were the conditions for getting talks about talks.

But then, how do you get the constitution? And that’s where we had the first meetings on South African soil between representatives of the then South African government, and representatives of the ANC. It was agreed, eventually, to establish a negotiating body. It was called CODESA, a Convention for Democratic South Africa, and it would consist of the South African government, and other political parties operating within the apartheid system, [including] the various Bantustans that had been created under apartheid, more or less on the one side, and on the other side the ANC, that had been in exile, driven underground and various organizations allied to the ANC, the Transvaal Indian Congress, the Natal Indian Congress, and a few other organizations of that character. So then we ended up with the Pan-African Congress …there, the Inkatha Freedom Party was there, so we ended up with something like 23 negotiating bodies sitting around a table. We even had debates about the shape of the table, in the sense of, should it emphasize two sides? But after that, we decided that wouldn’t be a major question for us. But then how to get the constitution?

The then South African government was very keen that we negotiate the constitution there and then. We get an agreed text, and then the text be put to the nation, everybody, take it or leave it, getting legitimacy that way. And they emphasized that constitutions basically are there to protect minorities, otherwise you simply have an electoral law, and then whatever the legislature is can pass the laws for the country and why have a constitution if it’s not to guarantee certain fundamental rights for groups that feel they might be vulnerable, and a majority are in rule? So that was their position.  The ANC’s position was, black people in South Africa had never shared in the sovereignty of the country.  They had not only been dispossessed of land and basic human rights and freedom of travel and movement and occupation and so on, they didn’t have the vote.  So in South Africa we weren’t fighting for independence for a new state. The country was already there.  We were fighting to reconfigure the nature of citizenship and the nature of access to accountability, control of authority and power in the country. And the ANC position was only a democratically elected body would have the authority and legitimacy to adopt a new constitution and that we were sitting around the table as self-appointed organizations, structures, and once more we would be denying the majority of people self-determination, imposing a constitution on a take-it or leave-it basis yet once more.  When I relate the story to a public audience, I always say “hands up those of you who think the first position is right, that constitutions are basically about protecting minorities.” A few hands go up. “Who thinks the second position is right? That unless the constitution is made by a body that has the mandate from the whole nation, its not going to have legitimacy.” And usually a few more hands go up.  And then I say “who don’t think?’ because people are kind of puzzling. And I put up my arms and say, “Both were right. Both were right.”

A lot of constitution making is about problems that arise when two apparently contradictory positions are both right, and we found a mechanism to deal with that.  I remember it vividly, because I had quite a lot to do with making the proposal, and that was a two-stage process of constitution making. The people sitting round the table would draft a constitution to get a new parliament democratically elected, which would then adopt the final constitution. But, we would build into the interim constitution a number of protections. One, we would have elections by proportional representation, which would ensure that even the tiniest group would be represented in the constitution making body. Two, a two-thirds majority would be required, not a simple majority.  Three, and this was particularly important, the negotiators would agree on certain principles that would have to be complied with in the drafting of the new constitution.  And I thought we could have four or five be the rule of law: bill of rights, representative democracy with free and fair open elections, and that would be enough.  We ended up with 34 principles and some of them had sub-clauses. It covered very, very extensive ground.  So we at least agreed on the character and the nature of the new constitution order.  But the democratically elected parliament would then have the authority and the duty of drafting the final text.

[On the formation of the Constitutional Court]

Then who would decide whether or not the final text complied with the 34 principles? If parliament did it itself, that wouldn’t provide the guarantee.  So that’s where the constitutional court came in.  Instead of having a new Supreme Court, we allowed for the creation of a Constitutional Court, which would be at the apex of the judiciary to deal with all constitutional matters, very carefully selected with public access to the interview of the candidates and quite a complex array of forms of choice making.  Ultimately, the President drawing people from a list given to him – that was Nelson Mandela – by the judicial service commission, broadly based, nominating group.  So the net result was that two years into democracy in South Africa, parliament had sent a text up to the Constitutional Court and said “Hurray! We’ve done it! Please will you say its okay?” And we looked at the text. We had ten days of objections from the public – members of the public, political organizations, different institutions, groups and so on – and eventually we decided overwhelmingly that the constitution did comply with the 34 principles but in 9 respects it didn’t.  So in effect, we declared the constitution to be unconstitutional. I don’t think that’s ever happened in any human history!  It went back to parliament; parliament made the corrections, sent the text back to us again and we accepted it.

[On “Sufficient Consensus”]

Along the way, one of the issues in the drafting of the 34 principles [was] what kind of mechanism would be used to make decisions? And that’s where Cyril Ramaphosa, who was now Deputy President of South Africa, came up with the theme of sufficient consensus.  Not 50 percent plus one, which would give all the small groups bargaining power, some representing very, very few people in the country. Not a super majority.  He said sufficient consensus meant the two main participants in the process, the South African government that was in power, had the guns, controlled the administration on the one hand, and the ANC, which was leading the liberation struggle and had enormous popular support on the other.  They had to agree. And if they didn’t agree, the process couldn’t move forward.  So if they did agree, then even if some of the other groups objected, it was enough weight behind the forward movement to enable it to proceed.  So he introduced a new term into international vocabulary. Consensus means everybody signs on. So even a small group, like in Europe now, just one country can block some forward movement. [Sufficient consensus] wouldn’t allow small groups to block the process.  It wasn’t based on counting the number of hands that went up in favor or against.  It was based on acknowledging the reality that without the consensus between the two major players in this process, no constitution could emerge.

[On bringing the nation together]

The process was important because it gave a pretty high degree of legitimacy to the constitution.  And the process broke down at a fairly early stage when the National Party government, in charge was fighting very hard for a system in which there would be power sharing with three presidents, presidents chosen by the heads of the three parties that got the most votes in the national elections.  It would have been a total disaster.  Can you imagine Mandela on Monday, de Klerk on Tuesday, Buthelezi on Wednesday? And the country was crying out for fairly effective leadership to transform from the land of apartheid, division and separation, into a country where everybody could feel that they were full citizens.  The health problems were enormous, education problems enormous, problems over land, problems over restitutions, all sorts of institutions that were divided on the basis of race had to be brought together.  We had to create one army out of different units that had been fighting each other, [and] a unified police force of the whole country.  There was no way it was going to work on consociational principles.  And because we didn’t get agreement on that, the process actually broke down at one stage.  A particular signal that I recall very vividly of the intransigence of the old regime was a statement that they would lift the moratorium on capital punishment.  The ANC was strongly opposed to capital punishment, the old South African strongly in favor of it.  And they unilaterally announced that now they were going to carry on with executions, as if to say “we’re in charge.” And for me that was a very strong signal that this is what Americans call “hardball.” It ended up, after a very, very brutal massacre, with the ANC halting the negotiations until the then government met up with certain very simple agreed requirements.  And I think that’s also an interesting feature of our process.  If you break off negotiations, you don’t just say, “we’re not getting anywhere.” You identify the themes that would show good faith on the other side, and the themes, if they are easily achievable, the public understands people on the other side who are looking for a way forward can say “yes.”  It meant releasing political prisoners who were still being detained. It meant preventing Inkatha Freedom Party people from marching in the streets carrying what we called the “cultural weapons,” which were being used to kill people.  These were two of the very specific things. When the people on the other side, the National Party government side, were now a majority in favor of negotiation for basically a non-racial democratic South Africa, then we could move forward.

YJIA:  So given what ended up making it into the constitution and the themes that you outlined, when we look at South Africa today, its been about 20 years since the first democratic elections in 1994, but it seems that many South Africans exhibit a growing sense of pessimism in their current government. Everywhere from a dissatisfaction with the lack of provision of basic services to the economic poor, unemployment rates being very high still, or even charges of corruption in the current ANC government. Given all of the sacrifices and your involvement in the negotiation process of the constitution, what do you personally think about the current state of political affairs in South Africa today? What do you hope to see done in the future?

Sachs: I think, looking back now on 20 years since those marvelous first elections, the most remarkable thing is that it’s holding.  We used to be told by the reactionaries in South Africa, “One man, one vote, once.” And we’ve had one man and woman. And it’s been four votes, [held] every five years.  The constitutional democracy theme is very well entrenched and institutionalized in the country, so people who are dissatisfied can voice their dissatisfaction. We have wonderful investigative journalists who pounce on corruption and expose it.  The public knows about bad things that are happening.  We have not only freedom of speech, but of movement, of organization, of contestation.  We also have a very strong judiciary and the judiciary frequently rules against the government. It did when I was on the judiciary, upholding the constitution that I had fought so hard for. Basically, the sense is that this is the product of the ANC’s vision, from the Freedom Charter days onwards.

So it leaves in place, through the constitution, the core ideals for which we’d been fighting.  And that’s a source of enormous encouragement to me.  The constitution is working.  Our elections are free and fair.  People come from all over the world to see what lessons they can take to other countries, to developing countries, in how to manage good elections.  We have very extensive civil society organizations and strong party political groupings.  I think democracy benefits form having strong parties representing different currents in the population. So in terms of the basic institutions and structures of the country, I feel very optimistic.  I think they are well entrenched, I think they’re working.  And they give the people who are dissatisfied—of whom there are many, many, many, many, including many who were very active in the freedom struggle—scope within in which to bring about change. And the debates in South Africa are very spirited, very lively.

I’m giving this interview now in New Haven, at Yale, a very elite area in the United States of America, and I can tell you the basic debates over the table, or in a bus, or standing in a line to see a movie or something in South Africa, are of much a higher quality than some of the debates in the United States.  Personality oriented to quite a large extent, but much more issue related.  And they are quite complex and there is a lot of movement around.  My hope is that we, on the verge of seeing a new generation of political figures inside and outside the different parties, maybe even establishing new parties of their own, who would use all the space that was given to them by a constitutional order, together with some of the energy that was produced in the struggle against apartheid, but with a fresh energy of free people, to find ways out of the difficulties that we encounter at the moment.

About the Interviewee

Justice Albie Sachs was appointed by President Nelson Mandela to South Africa’s Constitutional Court in 1994 and served until 2009. Justice Sachs began his career in human rights activism at the age of 17 as a law student at the University of Cape Town. He was an anti-Apartheid activist and a member of the African National Congress who suffered solitary confinement and exile, and he survived a bomb attack by South African security agents. Justice Sachs is currently a visiting Professor of Law and a Gruber Constitutionalism Fellow at the Yale Law School.

*Please note: section breaks in brackets were added later by the YJIA staff for clarity. They were not part of Justice Sachs’ original answers.

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