TRANSCRIPT: THAT LITTLE VOLUME I CARRY WITH ME
In a sense, the most majestic case we had in terms of its sweep and significance was the certification of the Constitution. A very key role was given to the Constitutional Court in terms of the two-stage process of constitution-making. It had been established as part of the constitution-making process. And it was this that broke the deadlock in the negotiations. Because the old regime were insisting that we must draft the Constitution there and then, while they were still in a position to defend their basic interests. And they were saying that if we hand over power now to a democratic elected body, then we’re going to be powerless and we’re going to lose everything.
In order to accommodate the concern that they had, we had this two-stage process of constitution-making whereby we would agree to 34 principles in advance – round the negotiating table, before elections – that the democratically elected Parliament with a two-thirds majority would have to comply with in the final constitution. But then the question was: who would decide if the principles agreed to in advance were actually being complied with? And that's where the Constitutional Court came in. We have the Constitutional Court because of its very, very specific role in, in effect, determining that the Constitution was constitutional. And that’s why the court was called a constitutional court – to say that the Constitution complied with the 34 principles. And Parliament constituted itself as the Constitutional Assembly. And they had to draft a new constitution – a final constitution – for South Africa in terms of the provisions of the Interim Constitution. They were given two years to do it.
Two years pass, I’m now Judge Albie Sachs, I’m part of the eleven judges. I’m completely out of the process. I’m more out than most people, because as a judge who’s on the Constitutional Court and the court that has to certify that the 34 principles agreed to in advance have been complied with, I mustn’t meddle, I mustn’t be involved. But of course, I’m looking at the news, I’m reading the newspapers and I’m feeling the impact. Because this was the stage now where the constitution-makers can go out to the country. They’ve got the structures, they know who will make the decisions, they know the framework within which they must work. Now they can really consult the people in a massive way.
And something like I think 2 million people wrote in. There was huge public involvement. There was a great programme on television that my friend and colleague Dennis Davis organised, where he would get the leaders or representatives of all the political parties to discuss the hard issues – capital punishment, gay rights, regionalism, federalism, financial aspects. But if you discussed and you showed you were dour and heavy, you lost. TV required a kind of a light approach, with some humour and giving the arguments with an imagery and points of reference that the public could adopt. I think that was hugely beneficial in forcing the political leaders to get outside of the very rigid doctrinaire kind of a reasoning and address their arguments in language that ordinary people could understand. And of course, that’s central to the whole constitutional project. So, I would pick up a lot of what was happening without myself having any say whatsoever in… in the drafting process.
Suddenly the two years are up. And of course, they worked ‘til late into the afternoon the very last day. And I always joke, luckily 1996 was a leap year so they had one extra day. They send the constitutional text up to the court. We’re in temporary accommodation in Braamfontein. I think it was Cyril Ramaphosa – he was the chair of the Constitutional Assembly. Was he together with Leon Wessels, who was the deputy? I think they actually brought the copy up to us at the court. And there would have been eleven copies. The one original one signed, deposited somewhere. Eleven copies made for the different judges.
And now we have to certify. Does this text – adopted with an overwhelming majority, in a parliament that had been chosen by proportional representation with no minimum threshold, so even the smallest party could be represented there – does this text comply with the 34 principles agreed to in advance? And we had to decide, now what procedure do we as judges want to follow to make that determination? And we instructed the Constitutional Assembly to make the text available to the public. And if they had any objections – not to things they liked or didn’t like in the text, but objections based on non-compliance with the 34 principles – then they could come to court and they could make their objections.
After the 10 days of hearings, we as judges now had to review all the objections and decide whether the 34 principles had in fact been satisfied. And we are considering our decision now. And we did some quite deep research. We would divide up into teams, given sets of objections in relation to different aspects. And then we would prepare a response – the nature of the objection, what we think the right legal answer is – discuss it in a collective, revise it and then Johann Kriegler would stitch it all together to give it some kind of a flow. I must say, he did a remarkable job. It was like an encyclopaedia of constitutionalism. And you forget afterwards what your specific role was because everything was subjected to collective analysis.
I remember something like 70 different objections were made. Everything from religion, language, devolution, separation of powers, should employers have a right to lock-out if the workers have a right to strike, a whole range of different questions, customary law. Battles over a single-medium education in the state sector. There was something about the powers of local government. The most important one related to non-substantial reduction of provincial powers.
In the end, there were nine areas in which we said the Constitution did not comply with the principles. Overwhelmingly, it complied. We rejected a number of objections from many different sources, but in these nine respects – some very tiny and focused, some large – we rejected. We sent it back to Parliament. I still remember when we delivered the decision. And people in whose same trenches I’d been, when it came to drafting the interim constitution were sitting there… Vali Moosa was one of those. And as we went through the nine, his jaw just dropped and dropped and dropped. They’d been told by the legal advisors, ‘It’s fine, it’ll get through.’ And we sent it back. But that dismay didn’t last very long, and they accepted.
The corrections were made, it was sent to us. We opened it up for further objections. There were some further objections. We rejected the objections.
And the Constitutional Court of South Africa formally certified in a unanimous decision that the Constitution, as drafted by the Constitutional Assembly, complied with the 34 principles. It was a very careful process. And it brought in the court, and it gave, I think, legitimacy to the court and to the Constitution that that very thorough process had been followed. It’s quite an extraordinary achievement because this very progressive, very forward-looking, very emancipatory, very wide-ranging constitutional document was adopted in two years, and it got over 80% majority support.
It then went for signature to President Mandela. He chose to sign it at Sharpeville on Human Rights Day internationally, December the 10<sup>th</sup> 1996, is signed into law. That momentous process that formally started in… I think it was December 1991. Now many years later, we have the Constitution of South Africa.
And that’s the document that was printed in that little volume I still carry around with me. It’s in my bag – who knows when it might be needed? I remember speaking to law students at universities in those days. ‘Keep the constitution with you at all times. Put it next to your bed, next to your condoms. You never know when you might need the Constitution.’ And even in court, you would see counsel would come with their thick volumes piled up and then you’d argue about something, and they’d put their hand in their pocket and pull out this little constitution. Literally so handy. Like handy in every way.
And it’s played, I believe, an enormous role in the life of the nation. Its strength, in a way, lies from its invisibility. It’s the stuff you begin to take for granted that holds us together as a nation without compelling us but gives us scope to be who we are. And to feel that we are free and dignified human beings. That everybody matters. And that there are ways of dealing with your complaints; of channelling your anger; of developing your ambitions and your dreams that don’t require cutting somebody’s throat, punching them in the eye. But that can be done – sometimes very robustly, sometimes even quite painfully – but done in an organised and principled way according to values that recognise the essential humanity of all our people. That dream of Oliver Tambo. Of those of us in exile. Those who’d been in prison fighting for a new South Africa. It was to get a country like that, that we could really believe belongs to all of us.
