Articles

Albie Sachs: Bill of Rights

October 10, 2019


Oliver Tambo had set up a constitutional committee
of the ANC and I had the delight and privilege of being amongst its founding members. [Oliver Tambo (1917 – 1993) was an anti-apartheid
activist and a senior leader of the African National Congress (ANC). He served as the
organization’s president from 1967 – 1991 and kept the ANC together in exile after it
was banned by the South African government in 1960. The African National Congress (ANC)
is a political party that served as the most prominent resistance movement against South
Africa’s apartheid system, at times resorting to violence through its military wing, Umkhonto
we Sizwe. It was officially banned by the South African government from 1960 to 1990.
As apartheid collapsed, the ANC’s leader, Nelson Mandela, was elected President of South
Africa in 1994 and established a democratic government.] This was around about ’87-’88 – 1988 – we’re
still in exile. And we could see that leadership coming from him with the support of his national
executive committee for the creation of a constitutional democracy in South Africa.
And all over the world, programs were coming in for the most contorted, convoluted, strange
constitutional arrangements that would somehow attempt to reconcile protection of the white
minority as it was seen with majority rule, that would have been disastrous. Oliver Tambo’s idea was we protect everybody
in our country, majorities, minorities, black, white, and brown, through a Bill of Rights
that will be entrenched with an independent judiciary. And that will prevent anybody from
being dispossessed of their homes arbitrarily, being forced off land purely because of their
race, being humiliated, being denied the right to use their language to worship in the way
that they want. And that’s what people as people for human beings as human beings, not
because they’re white, not because they’re black, not because they’re brown. I was given the task of explaining the Bill
of Rights to the ANC membership in exile, and we had a special workshop, a conference
on constitutional principles for a new South Africa. And I remember my heart was going
boom, boom, boom, boom, boom. The easy part was to say we need a Bill of Rights to show
the world that we’re good people, that we understand the rule of law, that we’re not
looking for domination. For purely diplomatic reasons, we need it.
But we’ve often done things that people outside haven’t liked, so it’s gotta be on a principled
basis, not simply to win favor. Then I said there’s a second reason. This was really the
Oliver Tambo reason. The Bill of Rights is the answer to the claim by the white minority
that if we get democracy in South Africa, they can’t be driven into the sea. And the
protection is not to have a group of seats for whites only in parliament, or a white
veto on any transformation. That would be a disaster. Then the constitution will be
seen as protecting privilege rather than guaranteeing rights for everybody. And so that became central
to our vision of the new South Africa. And that wasn’t difficult to explain to people.
But the third reason, and this was why my heart was going boom, boom, boom, boom, boom,
boom, was I said, “We need a Bill of Rights against ourselves. That we’ve lived in countries
where people have fought bravely for freedom, but afterwards they’ve gone on to become very
authoritarian in the way that they rule,” and I was nervous when I said this. I’m white,
comfortable middle-class background with theories and ideas and inverted commas, what will the
membership feel. They’re involved in a revolutionary struggle to transform South Africa. And I
saw in the eyes of everybody in the room just a sense of delight because they were anxious.
They were worried, how would we be when we were in power.

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