Interview with Justice Albie Sachs
Nthabiseng Mabuza
Spring 2000

In April of this year I caught up again with Albie when he came to Brandeis University to speak to law students and professors about the Constitution of South Africa. It was there that I got the chance to briefly interview Justice Sachs on his role in the drafting of South Africa's Constitution.

NB: You were appointed Justice of the Constitutional Court of South Africa by former President, Nelson Mandela. When was that?
AS: What are some of the factors that contributed to the launching of the trc?It was in September 1994, shortly after South Africa's first democratic elections.

NB: I would assume that one would need an extensive background in law to qualify for such a position.
AS: Yes. One had to have been practicing law for at least 10 years. I have a doctorate degree in law and I have also been a professor.

NB: What is involved in the process of appointing a Justice? Does one need to be nominated for the position?
AS: It was quite a tough process. The Court has eleven members and there are three different categories of appointments. One representative of the Court is appointed directly by the President after consulting with leaders of all the political parties. Four judges had to be sitting judges, already serving on one of South Africa's courts. The remaining six could be anyone with ten years of legal experience. I think over a 100 people added their names to the original list, and in the end there was what I call a "long-short" list of twenty-three candidates for those six positions.

NB: Who held the hearings?
AS: We were interviewed by a body called the Judicial Service Commission, which was roughly divided between judges and representatives of the legal community and members of Parliament. The Chief Justice presided over the public hearings. The press could be there but no television cameras were allowed.

NB: At the hearings, where there any concerns whatsoever about your ability to hold the position?
AS: Yes. Some of the candidates got through easily. In my case, there was some fierce questioning based on the fact that I had a very strong profile of being connected to the ANC for many years. The Commission wanted to know if I could really be independent, and whether I would be willing to take a position different from the majority in general, as well as positions that might be awkward for the ANC. I had no difficulty assuring them that my loyalty is to the Constitution; a Constitution we all helped to write that embodies values we all supported. That is what I committed myself to and I think I can fairly say that all of us on the Court have followed our oath to be loyal to the Constitution.

NB: I'd like to talk about the Constitution. Where you involved in the drafting of it? And if so, when did the whole process begin?
AS: I was at the early stage very involved in the drafting of the Constitution -that was the first interim Constitution. Initially we started discussions in exile. From 1985 onwards, we had extensive discussions on the Bill of Rights and forms of Governments, as well as the kind of democratic society we envisioned. We began negotiations in 1990 when we returned from exile.

NB: Tell me about the negotiation process. What did it entail?
AS: At first we had talks about talks and really, how to start talking. We knew that conditions for negotiations had to start with freeing political prisoners, allowing exiles to return, and allowing free public activity. That was the foundation of serious talks. We then had to talk about the whole format of negotiations, decisions that would be made, and who would be represented. The year 1990 was spent just on that. We then talked about how the Constitution would be adopted -would it be adopted by the negotiators and put to referendum, or would it be adopted by the National Assembly. The compromise at the end was that the negotiators would adopt an interim Constitution which would allow for a democratic assembly to be elected which would then draft the final Constitution based on 34 principals, which were agreed to in advance by all parties. So I was involved in the first phase. In fact, I put up the idea of the two-step process and the Constitution principals, and I think it worked remarkably well. Ironically, the final Constitution was adopted by the Parliament sitting as the Constitutional Assembly and was then sent to my Court (Constitutional Court) to verify that the 34 principals had been complied with. After review, we declared the Constitution to be unconstitutional because it did not comply with all the principals. In that respect it failed, so we sent it back to be corrected. It was, and now we have the final Constitution.

NB: Have any controversies risen from the public regarding any issues in the Constitution?
AS: Yes. For example, the very first case we had dealt with capital punishment. There were over 500 people on death row at the time because there had been a moratorium for some years. Our Court unanimously decided that capital punishment was inconsistent with the values and language of our Bill of Rights. But it was very controversial. Not everybody was happy with that. Another early controversial issue dealt with the holding of South Africa's first democratic local government elections. We said that Parliament could not give authority to the President to lay down all the rules and regulations; that Parliament itself had to do that. So we declared the President's Proclamation invalid. President Mandela accepted with very good grace saying that he had to be the first to show respect for the law and the Constitution.

NB: Could you give me examples of some specific issues covered in the Bill of Rights that you paid great attention to when drafting the Constitution, and also if your Court has had to address them?
AS: We paid great attention to matters such as affirmative action, which is designed to achieve real equality in our society. We've taken strong positions on gay and lesbian rights. Our Constitution quite explicitly insists that gay and lesbian partners in of South Africa be treated on the same basis as married husbands and wives. Discrimination based on sexual orientation is forbidden. We also took clear positions on persons living with HIV. We actually dealt with a case where someone was refused a job as a steward on South African Airways. We ruled that the categorical exclusion of people simply because passengers might be prejudiced was considered unfair discrimination. We ordered that he be given the job because he was quite capable of fulfilling the task. The court was filled with people wearing t-shirts that read "HIV positive", and as we filed out of the court, we heard cheering. That was very moving to feel that our Court is there to protect the fundamental rights, particularly of people who might be marginalized by society.

NB: How difficult is it to translate what's written in the Constitution and actually put it into practice in the courts of law?
AS: Well, the problem isn't so much obeying the rulings of the Court. The problem is that the Constitution is a document that holds out promise to all South Africans for a better and more secure life, with dignity. But simply to put it on paper in the Constitution doesn't automatically guarantee that people can enjoy those rights. The Courts are there as the last resort when the rights are infringed to see that people are protected.

I have friends from all walks of life, different ethnic and racial backgrounds, who greatly admire South Africa's Constitution. It is a powerful document that can be used to protect people, and definitely something to be proud of. How do you feel being one of the people who was involved in writing laws that are still going to be practiced in that country long after you are gone, so to speak?
AS: Well, it is very thrilling to be part of that process. Obviously as a lawyer, there can be nothing more enthralling than to help write your country's constitution. From a professional, technical point of view, the Constitution gave us peace. It gave us a country, and I'm very proud to have been a part of it.

Nthabiseng Mabuza is a writer and occasional volunteer at South Africa Partners. We are grateful for the time and energy she devoted to posting this interview on our website.

The Soft Vengence of a Freedom Fighter by Justice Albie Sachs is available through University of California Press.