If one were to do a DNA test on the parentage of our constitution, you’d find Oliver Tambo’s DNA, according to retired Constitutional Court judge, Albie Sachs.
“Democracy was in OR’s DNA,” says Judge Albie, delivering the fourth lecture in the annual Oliver Tambo Centenary lecture series, titled “The constitution as an instrument of decolonisation and achieving true equality”, at the Stellenbosch Museum on Thursday August 24.
In a wide-ranging oration – the central theme of which was the innate Africaness of our constitution – Judge Albie described the process that led to the drafting of our new democratic constitution and our Bill of Rights, which stand among the most respected in the world.
Judge Albie recounted an ANC conference which debated the matter of a Bill of Rights for a liberation organisation in exile.
“We debated whether we should consider using torture on prisoners who might be taken when operatives (of the apartheid state) were sent to take us out,” says Judge Albie, “but OR said ‘no, we’re fighting for freedom, so we must have freedom in our hearts’. Many MK (Umkhonto we Sizwe) cadres resisted, but OR prevailed.”
“The possibility of a negotiated outcome to the struggle – supported by the OAU (Organisation of African Unity) – was also on the agenda, and it was instrumental in the eventual release of political prisoners and unbanning of the PAC, the SACP and the ANC.”
“It was OR’s tireless travelling to get African countries on board (in support of a negotiated settlement), according to some, which precipitated his stroke,” says Judge Albie.
It was while in exile in Lusaka, that Oliver Tambo set up a constitutional commission under his supervision, to hammer out a new democratic constitution for South Africa, according to Judge Albie.
“OR was a non-racial democrat, who believed in majority rule in a one person one vote system,” says Judge Albie, “but providing protection for minorities with a Bill of Rights. OR didn’t want us to do to you, what you did to us.”
“OR kept the ANC constitution updated in exile, and he asked me to help with the technical stuff. I remember a discussion about whether the ANC should have a chaplain general or a political commissar. Being secular, I felt we needed a political commissar, but OR being religious rebuked me gently: ‘there are many who think we should have a chaplain general again’.”
“OR was a proud African and a proud constitutionalist, and what distinguished him was the intensity of his honesty,” says Judge Albie.
“He was a natural democrat and a natural constitutionalist, and anybody who says our constitution is not an African document, is saying that OR was not African.”
Turning to the role of the constitution in achieving emancipation, Judge Albie says: “The constitution does not stand in the way of land reform or economic emancipation. It requires land reform and economic emancipation.”
“When our first democratic Parliament drafted the final constitution, it provided the instruments to effect land reform, including the mechanism for expropriation with compensation in the public interest,” says Judge Albie.
“We also need massive economic transformation, but we must work out how to do it without destroying the economy in the process.”
“Our constitution is the first to include social economic rights as legally enforceable,” Judge Albie says.
“I was a Bill of Rights sceptic,” says Judge Albie.“I felt we should limit the powers of the courts and judges, but you can’t fight for issues in the streets, or the violence will never stop. I realised we needed socially attuned judges to deliberate and rule on issues.”
“Living in an unjust society, our starting off point was, we had to make it just by just means,” Judge Albie says.
“So, the claims being made that it was a deal done by Nelson Mandela and his comrades, with business people, is out of keeping with reality. Nobody dictated our constitution.
“We all wanted transformation, and we have the text to enable it. It is dismissive and demeaning to suggest that (they) were stooges and sellouts,” Judge Albie asserts.
“We have free and fair elections, and our constitution is upheld. It hasn’t disabled Parliament, rather it has reminded it of the rules and its responsibilities.”
“Change is happening, but it needs to be deeper and faster,” said Judge Albie.
“The new generation that is pushing for transformation mustn’t trample the constitution.
“Instead, they should use it to effect the change they want.”