TRANSCRIPT: THE SOUTH AFRICA WE ENVISAGE
I had a very good time for reflection not given to most lawyers. I’d been blown up, lost an arm, sight in one eye. I’d survived. I felt fantastic. I get a phone call, it's from Shula Marks, she’s the director of The Institute of Commonwealth Studies, University of London, and she wants to speak to me. And I’d known Shula from Sea Point. I think we’d been in quizzes and debates and so on together. And she turns up at the place where I’m staying, recovering, with Mary Simons. And Mary I’ve known as a little pikkie – the daughter of Jack Simons and Ray Alexander, two great struggle people in Cape Town. And they ask me when they arrive, what am I planning to do? I’d lost my arm. I’d lost my job. I’d lost my place. I couldn’t go back to Mozambique. And I said, well, I've been offered a fellowship at Warwick University for 3 months and I’ve got an invitation from Canterbury in New Zealand. What would you like to do? I said I’d love to work on the outlines of a new constitution for South Africa. And Shula said, great! At the Institute of Commonwealth Studies, they’ve got a bathroom upstairs which they can convert into an office and she’s sure they’ll get money from Ford Foundation and Swedish International Development Agency. And three weeks later, I was in that office. It was like a perfect setting, just to sit there with a grand title – South African Constitution Studies Centre, it was actually the SACS Centre – to think, to read, to talk, to meet people. And I produced a whole series of papers, everything from judges and gender to the meaning of freedom in a new South Africa, to the future of Roman-Dutch law. It was an amazing period, being sponsored to write what I wanted to write. And very, very therapeutic. You don’t need two arms to write about these things and to create a new constitution.
But this work of imagining a new constitution for South Africa wasn’t something I did alone. And it wasn’t something that only started then, in late 1988, after I’d been blown up. It began in 1985 when Oliver Tambo established a Constitutional Committee within the ANC.
The most important work I did with Oliver Tambo was on the Constitutional Committee. And that was his huge contribution. He’s praised, quite justly, for international solidarity to isolate South Africa – quite correctly. He’s praised, quite correctly, for maintaining the organisation of the ANC with one significant but not huge split. But maybe the most lasting contribution that Oliver Tambo made was to really ensure that the elements of our Constitution were envisaged, shaped, fashioned, articulated before we came home. The way he saw it, when the time comes for negotiations, we’ve got to be ready. He had this nightmare: it would come, we wouldn’t be ready. We have to be ready to take the initiative.
Oliver Tambo was the person who supervised that whole process of getting a revolutionary movement speaking about seizure of power to accept multi-party democracy, a bill of rights, the constitutional order that we have. There were lots of lawyers in the struggle. Mandela, Tambo being two obvious ones. There was Duma Nokwe, Joe Slovo. But law was just like an instrument you could use – secure an income, defend people, and so on. Tambo was a constitutionalist. Some of us were very sceptical of constitutions and bills of rights and so on. We saw them as beautiful documents that in the end bless and protect existing power relations.
He was very aware now, he’s the president or acting president of the ANC. There’d been many presidents before him. He’d worked closely with Albert Luthuli – his father, as it were, was Albert Luthuli. In terms of style, in manner, his Christianity becoming part of his national liberation revolutionary philosophy, manner of working with people. That broad embrace. That African nationalism that wasn’t inward and exclusive and tight but was outward looking, embraced the world, made everybody feel welcome. So, all of these themes were strongly imbued in him. He was very aware of ANC traditions: 1923, the ANC had a Bill of Rights. It was a very polite document. 1943, African Claims, a much stronger, much more assertive bill of rights. 1955, the Freedom Charter. So, Oliver Tambo now is working within a tradition. It’s not a backward-looking tradition. It’s a forward-looking, evolving tradition. So, he was a true constitutionalist.
The Constitutional Committee of the ANC. He set us up. He chose the membership. He got Professor Jack Simons to be the head. Jack had been my professor at UCT. A fantastic educator. He was imprisoned during the State of Emergency in 1960. When he came back to his class, he said, as I was saying before I was interrupted, and the students went wild. And eventually banned and restricted. He and his wife, Ray Alexander, the trade union leader, went into exile. They went to Zambia. They lived in Lusaka. The regime paid the highest respect possible to a revolutionary intellectual. They sent two bomber planes to bomb the spot where he’d been sleeping. Fortunately, he accepted the honour in absentia. He’d left just a few days before. So, now he’s the head of the Constitutional Committee for a year or so. And then Zola Skweyiya took over afterwards. And then Kader Asmal was on, Teddy Pekane, Penuell Maduna became a member, Jobs Jobotwana. And then Brigitte Mabandla came in afterwards. Kader was the dean of the School of Law at Trinity College. Jack had got a PhD at the London School of Economics. I’d got a PhD at Sussex. Zola had got a PhD at the University of Leipzig. And Ted Pekane at the University of Sofia. So, we had four PhDs there. Very different circumstances.
And we produced documents. They weren’t in anybody’s name. They were documents for the committee. And I was the scribe, and so often we’d have discussions and then I would get the essence. And maybe because I’m so useless with my hands, even when I had two hands, I worked a little harder at working with the pen. You know, you spend years at university learning to write as a lawyer in a particular way. It takes even longer to unlearn all that. And to write in language that’s more accessible. That’s less rigid. That’s more embodied in the world. So, I was developing those skills as part and parcel of struggle.
Tambo launched us and then said, use the Freedom Charter as the base. Base the constitutional guidelines on the Freedom Charter. That’s the foundation. I’m not going to interfere. And he stepped out completely. Then we produced various drafts and made various proposals. They were sent to a constitution committee of the National Executive of the African National Congress, the NEC as we called it, who gave us hell at one stage. Backwards and forwards, backwards and forwards. We made certain changes. It went through many, many drafts.
And at a very late stage, Tambo now looks at our final document. He took some time off. We got his document with his notes, his comments – quite sharp. Some clauses are repetitious. Other things are not so clear. What about this? What about that? What about the other? Quite strong pieces. We made the changes, they made sense. And then he stepped back again. And then his main role was to get it discussed by the whole membership, by the National Executive, getting everybody on board for them to feel comfortable with it, supporting it, and, and, and accepting it. Chris Hani, the soldier, leading communist intellectual, coming on board. Joe Slovo, strong theoretician, soldier, coming on board. Different groups from the more African nationalist grouping, from the more African socialist grouping, all coming in. And that took… It was an important question of timing, of mode of representation and always seeing it not simply as a beautiful document in itself that made us look good and clever and wise and fair, but as an instrument of struggle.
The theme of negotiations with the vision we’re presenting now becomes a unifying factor that we can give out to our people back home, number one, and then to everybody abroad. This is the South Africa we envisage. Not a constitution. We can’t write a constitution in exile. It’s got to be written by elected people in a constituent assembly in South Africa. But we can say, what are the principles? What are the visions?
And we had our seminar in Lusaka in early to 1988 to take the constitutional guidelines [that] the Constitutional Committee had crafted with Tambo and to present them to the ANC, debate them, refine them… After three days of conference, lots of amendments. This is now the official ANC position, sent out to the world for comment. And then he used those guidelines to craft the Harare Declaration. It’s hardly known in South Africa. It was so central. Taking those fundamental themes, taking them to the Organisation of African Unity. This is a blueprint for a new South Africa, lifted almost straight from our own constitutional guidelines. And the Organisation of African Unity adopts it. It then goes to the Non-Aligned Movement, then to the Commonwealth, and even Margaret Thatcher had to succumb to it. And finally, to the General Assembly of the United Nations, where it was accepted by acclamation. When I tell people, if you did a paternity test on South Africa’s Constitution, whose DNA would come up? And people mention all sorts of names. When they give up, I say Oliver Tambo.
When helping André Odendaal to write his wonderful book Dear Comrade President: Oliver Tambo and the Foundations of South Africa’s Constitution, I learned what extra work Tambo had done. I’d learnt about how he’d driven himself to get the Harare Declaration accepted in Africa. In a small Cessna plane, they would fly to Angola and to Swaziland and to Tanzania, to Mozambique to get support for this declaration, now. And he would work through the night. And it was so vital to meet the timelines, so vital to get wording exactly right. So, flying in this little plane, working through the night, going through the drafts, just destroying… destroying his heart. And eventually, before they’d done their last trip, he just collapsed with, with a stroke. He’s now flown to England, then to Stockholm, to get treatment there. He asked, is there an Anglican church in Stockholm? He thought it might be his last days there. He recovers his speech. He can walk again. He can move around. And he’s still got intelligence, sharpness, but he’s not capable of fulfilling the functions of a leader.
