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OR Tambo Centenary Lecture: “What did we achieve?” asks Justice Albie Sachs on the drafting of the Constitution

In a four-part lecture delivered as part of the Oliver Tambo Centenary Series, former Justice Albie Sachs confronts aspects of the Constitution with direct parallels to critical issues faced by the country right now. Read Sachs’ recent piece for the Daily Maverick – “The Constitution as a Framework for Struggle” – here:

I didn’t sleep the night before the actual constitutional negotiations started. It was 1992, and the prospect of spending days on end in the gloomy, sprawling building near the Johannesburg airport grandiosely entitled the World Trade Centre was not enticing, even if it was slightly enlivened by a banner proclaiming CODESA (Convention for a Democratic South Africa). Yet what kept me awake was not the cheerlessness of the venue. It was fear. My deep dread was that, after all the generations of struggle – in my case, working as an advocate by day and in the underground at night, then spending days, weeks and months in solitary confinement, with sleep deprivation thrown in, followed by 24 years of exile, seven as a stateless person, and being blown up by an apartheid bomb, losing my arm and my sight in one eye – my terror was that we would give away in a few weeks at the negotiating table all the gains we had won through strenuous travail over the decades in the trenches. I thought of my close comrades who had been tortured to death or assassinated: Solwandle Looksmart Ngudle, Elijah Loza, Babla Saloojee, Ruth First and Joe Gqabi. Would we betray their memory?

I think back to that time when I hear passionate young activists today speaking about how the Constitution was made. As they see it, at some key moments Mandela got together with certain captains of big business to assure them that, provided everyone got the vote, there would be nothing in the new Constitution to rock the existing economic system or require massive restoration of land to the people. The kinder version is that Mandela’s position was weak and he had no other option. Less generously, he was too naïve and trusting. More critically, he was simply a sell-out. These claims reduce to a simple all-defining chat by a few top personalities what was in fact an arduous, six-year-long violence-beset struggle over the Constitution, with a total breakdown and one severe crisis after the other. The role of millions of people who participated in different ways is simply eliminated.

The actual role that Mandela played at CODESA is completely misrepresented. As I have explained in my first two Oliver Tambo Centenary Lectures [See: here and here] the basic non-racial, democratic design of our Constitution came not from Mandela but from Oliver Tambo. Mandela’s role in negotiations was in fact to be the public face of the ANC and to ensure that the negotiation process remained firmly on track. Those of us who were there have to tell our story. The making of the Constitution was in fact a huge act of decolonisation in South Africa. It tore down the pillars of white domination in the political sphere and provided the instruments for achieving the next stage of liberation, namely, economic and cultural emancipation.

It is surprising that the central drama of the South African constitution-making project is not known. It wasn’t over the economic system, but over who should have the right to determine it. It wasn’t over a unitary state versus federalism – that was important but relatively secondary. It was in fact over an issue that had been raised while we were still in Lusaka and that is almost forgotten today: group rights, as Pretoria had demanded, versus majority rule and a Bill of Rights, as the ANC had insisted on.

As the struggle against apartheid had visibly gathered strength inside South Africa and worldwide denunciation of the system had intensified, proposals for new constitutional arrangements in South Africa had come pouring in from all sides. Invariably they had been based on forms of power-sharing between whites and blacks. The tenet had been that, given the deep historical and cultural cleavages in South Africa, the only way that the white minority could be expected to surrender their monopoly on power was if they were granted secure constitutional protections against a black majority rule.

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