TRANSCRIPT: BETWEEN THE IMPOSSIBLE AND THE INEVITABLE
I recently saw a film of myself, much younger. I had two arms then, and you could see that, but you couldn’t see how my heart was beating. I was in Lusaka, at the University of Zambia. And the room was packed. Seminar room. Maybe 100 people. Overwhelmingly black African, but other people there as well. All South Africans. And my heart’s going, boom-boom-boom-boom-boom. I’m due to speak about a Bill of Rights. Why we’re going to need a Bill of Rights in the future democratic South Africa we’re envisaging. This is the Oliver Tambo vision.
But he’d been secretly, quietly guided by Pallo Jordan. And when Pallo Jordan came up with the idea of resisting claims for group rights, power-sharing in South Africa between black people, white people, Zulu-speaking, Afrikaans-speaking, Pallo’s answer was non-racial democracy, multi-party democracy, Bill of Rights. And rights are protected by a bill of rights, not by group rights protecting ethnic communities. And Bill of Rights protects you not because you’re majority or minority or black or white or brown. Because you’re a human being. And we’ve got to make that the core of our constitutional order. Not different ethnic groups co-existing in one territory which you call a country, but a country, South Africa, where we’re all equal. We’re all equally protected because you’re a human being. Oliver Tambo intuitively felt and understood all that. So, that Bill of Rights concept then, was not something that was fashioned in CODESA, or later on, in Cape Town at the Constitutional Assembly. It was right at the very heart of the ANC struggle, and with the support of Oliver Tambo.
And I’d been sceptical about a Bill of Rights until then. Amongst those, we called ourselves the legal sceptics, the critical legal scholars, fundamental rights shouldn’t be decided by judges, they’re decided in the streets, and they’re decided in Parliament. And now I see in South African circumstances, you've got to have certain fundamental rights not decided in the streets, not decided in Parliament, decided in advance by the makers of the Constitution as fundamental for future societies. And now I become enthusiastic, like any convert. Yes!
Now back to the packed seminar room at the University of Zambia. This is at a time when people are learning about limpet mines and dead-letter boxes and secret this, that and the other. Revolutionary overthrow of the racist regime.
And I’m speaking about a Bill of Rights! My heart’s going boom-boom-boom-boom. And I start off by saying: there are three reasons why the ANC supports a Bill of Rights. Number one, it makes us look good. We’re supposed to be bloodthirsty revolutionaries. We’re speaking about a Bill of Rights. And everybody nods. They can understand. I said, secondly, it’s strategic. People wanting to defend the gains of apartheid are saying, okay, there’ll be votes for everybody in South Africa, but we must protect the minorities. Minority protection for the whites, the Indians, coloured people. And Tambo is saying, we don’t believe in that. We protect rights through a Bill of Rights. A Bill of Rights protects people, not because they’re black or white or brown, or a majority or minority, but because they’re human beings. Then we can get a country and protect everybody equally. It’s strategically central. People nod. They can understand that. And thirdly – and now my heart’s going boom-boom-boom – we need a Bill of Rights against ourselves. And I’m thinking, they’re going to say: this bourgeoise lawyer. Middle-class bourgeoise lawyer. They wouldn’t say white. That, that wouldn’t be nice. But ‘bourgeoise’, you could say. And I see looks of delight. Whew, it’s almost like a sense of relief. Because we’d seen what had happened inside our organisation. People in power had abused the power. We’d seen what had happened in other African countries, and countries in other continents, where people had fought hard for freedom and gone on to become very tyrannical.
Then we read that the black students at the University of Durban, in Natal then, had set up an anti-Bill of Rights Committee. They saw it as a bill of whites. Because we’d get the vote for everybody and then the whites would have a Bill of Rights that would protect the status quo against any change. And now I’m commissioned by the ANC Constitutional Committee to respond to the Anti-Bill of Rights Committee. These are our comrades, they’re on our side. They see it as a bill of whites. And I'm saying it can be that, but it needn’t be that. It depends on us. Why hand over a bill of rights to the reactionaries, the conservatives that will simply protect private property, rights of individuals who are living marvellously and comfortably, and leave the masses out? Let’s seize it and infuse it with real rights, real people, the people who need it the most, and create an emancipatory vision. We must make a bill of rights an emancipatory document that doesn’t stop at the entrance to the mine. It doesn’t stop at the entrance to the farm, the entrance to the factory, the entrance to the home. It goes right in. It protects people. I wrote a piece on why we needed a Bill of Rights for South Africa. And I opened the article with, ‘All revolutions are impossible until they happen. Then they become inevitable. And we’re living in the interesting stage between the impossible and the inevitable.’ So, I now became the orator in favour of Bill of Rights for the progressive movement.
Most of my friends believe in synchronicity. I don’t. I think there’s accidents. Things happen. And there might be an almost opposite of synchronicity. I don’t even know what the word is. But three weeks after we get at that seminar, the ANC now accepting this fundamental vision of a new democratic South Africa, centred around a Bill of Rights, I’m blown up. Assassination is the total opposite of a country based on Bill of Rights.
I recover, recover, recover. I’m then requested to go to do the first draft of an ANC vision of a Bill of Rights. I’m weak, but I’m strong inside and I’m excited. Getting onto the plane and Heathrow’s kind of crowded. And off the plane. I remember the steward there, serving. I somehow mention, I’m going to the house of Kader Asmal. They knew him! The guy pouring coffee.
Kader was just known throughout Ireland for his anti-apartheid work. Kader: sparky, bright, a lot of international experience, quick turn of phrase and a fantastic personality. We had a very strong relationship, very respectful of each other even if at times we were jostling to have the last word on a particular question. And I arrive. Kader and Louise have their home. It’s raining. Kader is a non-stop smoker. Again, a gesture to me, his support for me was to smoke out in the rain. And I say, ‘Kader, I want a table, I want paper and a pen, and nothing more.’ A Bill of Rights must proclaim itself. It must be so self-evident, so strong, so yes-of-course in its character, you shouldn’t have to look up a book or get sources. And I write down. And I’m feeling it’s historic. This is kind of a moment. Until now, we’ve been destroying, bringing down. End. Down with! And now we’re starting to build. To create. To heal. It was like a beautiful moment, and what lawyer gets to write a Bill of Rights that’s going to be used for his country. This is amazing.
After an hour or two, I’ve thought about it. I show him. Kader’s meanwhile working on enforcements. We swap notes. Kader and I fought always, everywhere. And it was always productive. But at that moment, I seem to remember we just got an accord. And then we check up with bills of rights, and it was all there. All there. All there. This is what goes into a Bill of Rights. We ask Louise to type it up. She types it up. I think there’s one copy, maybe two carbons. We can’t find them. Never been found. When Andre Odendaal’s writing the book dealing with this whole period, he even expresses some scepticism, did this really happen? And I’m saying, it did happen! I was there. It did happen. That was before computers. Before copies. And I’m moving from place to place. And maybe you give some documents to somebody from Lusaka, or somebody in London to give to somebody in Lusaka. It never turns up. In that draft that I did on the kitchen table – and by the way, we've looked for the kitchen table, we can't find it. It deserves to go into a museum somewhere. And the more mundane it is, the more exciting it'll be! We can't find it. Which supports the conspiracy theory that the whole thing never, never existed.
And finally, we redrafted it in South Africa, we sent it out. This is something we’re submitting to the constitution-making body, to CODESA. But I had that joy and excitement of doing that draft at that particular stage. And it’s a kind of a moment, in a way, of wonderful, not just imagining the future. Not just saying, we’re doing this for our children. We’re doing this for future generations. There’s almost a revolutionary heaven that keeps you going in, in the dark days. We’re doing this because we’re going to make these things real.
