Thirty years of freedom: ‘It’s not personal; it’s Constitutional’

On the eve of South Africa’s seventh democratic election, while the rainbow nation and its achievements (or lack thereof) is placed under scrutiny, the Nelson Mandela School of Public Governance at the University of Cape Town (UCT) hosted an intimate afternoon reflect on the early years of Constitutionalism.

Attendees in the room and online, who joined the third instalment of the school’s Democratic Governance and Leadership series, were in good company, as anti-apartheid stalwart and former Constitutional Court judge Albie Sachs pulled up a chair and discussed the independence of the country’s highest court. The dialogue tied together a thought-provoking series, which included a single common theme: the late former president Nelson Mandela.

Moderated by the school’s Penny Parenzee, Sachs’s last talk of the series was held on Wednesday, 8 May, and was titled “Mandela and our constitutional democracy”. Prior discussions were titled “Mandela the lawbreaker” and specifically touched on the difficult period of the country’s struggle for liberation during the dark days of apartheid; and “Mandela and the making of our Constitution”, which explored the transition from apartheid to democracy.

“And it’s a story not about one noble man, but about a people who found nobility, not only in the midst of horror and abuse, but in response to an abuse.”

“It’s almost like a three-act play. And you don’t know: Is it a tragedy? Is it an epic? Is it a comedy? In a way, it’s got all of that. But it’s a very noble story. And it’s a story not about one noble man, but about a people who found nobility, not only in the midst of horror and abuse, but in response to an abuse. It’s a beautiful story,” Sachs said. “It was over acclaimed as a miracle. Now it’s being dismissed. [But] it was huge, and our people were huge, and we overcame enormous obstacles.”

A powerful occasion

As he opened the discussion, Sachs provided a personal reflection of a day etched into South Africa’s history. It was 14 February 1995, 10 months after the country’s first democratic election, when Mandela inaugurated 11 judges, including Sachs, to South Africa’s first Constitutional Court. And there was no courthouse as the one that is known today on Constitution Hill in Johannesburg (not yet at least). So, all matters related to the court were managed from a temporary building.

Several a-list dignitaries, as well as local and international media, joined the prestigious occasion. And when it came to the formal oath-taking, Sachs said, the team of judges were permitted to speak in four of South Africa’s 11 official languages: English, Afrikaans, isiZulu and Setswana. Some, he said, opted to be sworn in with their right hand on the Bible, while others (himself included) “solemnly affirmed” their commitment to the court. That day Mandela also unveiled the plague depicting the court’s logo – an illustration of people sheltering under a canopy of branches. According to the Constitutional Court, the logo is “a representation of the Constitution’s protective role and a reference to a theme that runs through the court, that of justice under a tree”.

“It was so meaningful for us as judges. Not only that the president of the country had been there on that occasion [inauguration], but Nelson Mandela, who for the world and for our people had represented so much,” Sachs said.

An independent court

But despite their idolism for the man who played a fundamental role in the country’s liberation movement, upholding the independence of the court was always priority.

And the judges proved this later that year, when a case involving several proclamations issued by Mandela at the behest of parliament was brought before the court. Sachs said the proclamations dealt with South Africa’s first democratic local government elections and referred to “sort of practical arrangements” ahead of the elections. These, he said, included ensuring that the election process would be free and fair, that votes would be properly counted, and that proper scrutiny processes would be in place. But in the end, he said, the majority of the court decided that parliament’s request was unconstitutional.

“Why? The Constitution says the parliament is responsible for legislation. It wasn’t just a technical thing. It was a profound statement. All basic laws come from parliament, elected by the people, and parliament itself must pass the laws. Parliament can’t say: ‘Mr President, we don’t have time, you pass the laws,’” he said. “He [Mandela] had appointed us. He’d become the symbol of transformation and change and courage, and we struck down proclamations issued by him.”

A ‘hallelujah moment’

Sachs said soon after the court passed the landmark judgement, just nine months after its inauguration, they received communication that Mandela would respond via a public statement on live, national TV the next day. At the time, he said local newspaper headlines spoke of a crisis in South Africa. And in anticipation of the statement, the judges sat down in their meeting room in front of the TV to listen to what Mandela had to say.

“Now, for me, that was a hallelujah moment.”

“The way I remember what he said was along the following lines: ‘When I passed these proclamations, I acted on legal advice that I had the power to do so, given to me by parliament. I now accept that legal advice was wrong. And I, as president of the country, must be the first to accept the Constitution as interpreted by the Constitutional Court.’”

He added: “Now, for me, that was a hallelujah moment. For me, equal to 27 April 1994, when we became a political democracy – our equivalent to independence – that day, and I don’t even know what the date [was], we became a Constitutional democracy.”

After all, he said, once Mandela had accepted the binding force of rulings of the Constitutional Court, that meant a town clerk, the postmaster general, a premier or an ordinary member of the public would need to accept it as well. Because, as Sachs added, “It’s not personal; it’s Constitutional.”