Interview with Albie Sachs, Constitutional Judge and Freedom Fighter from South Africa

FARC-EP interviewed Albie Sachs, who was a freedom fighter in South Africa in the African National Congress, under the leadership of Oliver Tambo and Nelson Mandela.

He became an advocate and was imprisoned in South Africa. Afterwards, he went to exile for 24 years, where he was blown up by a bomb, put in his car by South african security agents. Happily, he survived and after 24 years in exile, he returned to South Africa and helped to prepare for a new Constitution in South Africa.
Then he was appointed by Nelson Mandela to be a judge on the first Constitutional Court. Within the framework of the South African Truth Commission, he met the man who put the bomb in his car, which made him loose one arm and the sight in one eye.

He was in Havana together with Mohammed Bhabha, lawyer, member of the African National Congress and negotiator of the peace process in South Africa and Howard Varney, lawyer. The three of them had several meetings with the FARC’s Peace Delegation about different subjects like paramilitarism, constitutional and institutional changes and political prisoners.

How did you live the system of apartheid before the African National Congress came to power?

Everything in South Africa was race. Each single person was given a document saying were you white, were you black, were you of indian origin or were you of mixed descent. And that document defined where you could live, where you could go to school, where you would be buried, where you would be born…Whether you could go to the beach, to the hotels, whether you could vote, whether you could be in parliament, whether you could be the prime minister. Everything you could think of, was determined by race. And only the white people had civic rights, the whites by law owned 87% of the properties in South Africa, I have a white skin, my grandparents were jews fleeing from the persecution of pogroms. My father became a trade union leader, and my mother was a political activist, she was the typist for the general secretary of the Communist Party, who happened to be a black man, so when I was a little child, she would say: “Tidy up, tidy up, uncle Moses is coming”.

I grew up in a home where it was quite natural for a white woman to show great respect and defection for a black man.


And how do you currently live the sitaution? What has changed? Has it really changed a lot?

Enormously. It’s a different country. We still have huge problems, but it is a completely different country. It was a racist, repressive, authoritarian, backward-looking country. Now it’s a very open society. South Africans speak their minds, my doctoral thesis at the University of Sussix, published by the university press on the history of the justice system in South Africa was banned. It was a criminal offense to have a copy. Plays were banned, books were banned, films were banned, but also individuals were banned. So nobody was allowed to qoute anything that Albie Sachs wrote or said, or even to be in possession of documents written by me. I just give that as a little example of the total repression of a very authoritarian society, not only racist, but also very authoritarian. Now it’s very open. South africans speak their minds, you can travel, you can go anywhere, and people walk in the streets differently. You just feel it in the streets; in that sense, it has been a huge transformation in terms of dignity. The world knows Nelson Mandela, but we have thousands and thousands of smaller Mandelas and madam Mandelas in our country now. So that is terrific, tremendous change has been brought about, through struggle, which included armed struggle in our country.

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So really in South Africa, the peace process has been the beginning of the construction of a new country.

The peace process was part of the construction. It wasn’t like you have the peace process and then you start building. We developed confidence in the course of negotiations. It was a peace process, but it was also about sovereignty for the black people who had never been included as part of the nation; and it was bout building a democratic society as well. We had all three going together.

So it was an enormous transformation; we had to reconstruct the whole state. Everything in the State was by race. Regarding education, we had four separate education departments. Can you imagine? Education! Black education, white education, indian education and colored eduction. It’s amazing. We had to make it all one.

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We integrated the armies, very different from what is being proposed in Colombia, where I believe already there is an enormous army, half a million people which strikes an outsider for being so big for the country. But in our case, the liberation forces amalgamated, integrated with the existing official army, to create one army, and this was rather amazing because the people who had been trying to kill each other were now in the same structures, giving instructions to each other and having to accept the new values and authority. And our Constitution put very heavy emphasis on soldiers being thinking soldiers, soldiers of the Constitution, not just instruments of power. The Constitution spelled that all soldiers are obliged to have the Constitution living in their heart and their soul, when they’re acting outside and inside the country.

So we did bring about huge institutional structural changes, the Constitutional Court of which I had the very great honor to be a member, also played a very important role in our country. And very early on, we struck down very important proclamations by Nelson Mandela. We all loved Nelson Mandela; I’ve been in resistance with him, some of my collegues had defended him in court, others had known him, but we didn’t patronize him. He passed a law which the parliament asked him to pass, about local government elections and we said parliament must do it itself. Parliament can’t give in that power. And he accepted it very, very graciously. He said: I as president must be the first to show respect for the Constitution as interpreted by the Constitutional Court. All that is very positive.

But I would be wrong if I implied that we have a totally fair system. We have huge inequalities, there’s still a lot of racism, massive unemployment, serious problems of corruption, at the local level it’s worse, but there are also serious allegations about corruption, nepotism, chronyism at really high levels. But people speak their minds. They speak out and the democratic institutions are very strong. And that gives me great confidence.

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What similarities do you see with the Colombian situation and the Colombian peace process?

I see some very strong similarities and some mayor dissimilitaries. In our case, the liberation forces, with their armed wing, clearly spoke for the great majority of the people, who had been denied to vote, denied access to democratic institutions, had an enormous international support. I don’t think you would say the same applies here. In terms of the balance of forces, the ANC was in a very, very strong position in the country; and when we had breakdowns, hundreds of thousands of people would go march on the streets in a very organized way, saying we support Nelson Mandela, demanding democratic change. I don’t see anything quite similar over here.

In terms of the international situation, it is very pleasing to see that there is much more international interest than there was before and great support is beginning to come through for the peace process here. We had an enormous support, which had been build up through the anti-apartheid movement over decades. I think that was very positive for us. But what I see similar is our people were aching to end the fighting, to end the conflict, the bloodshed. To have a country, to feel we were living in one country, that we needn’t be frightened of each other. That was a deep ache, which we found in all the different communities.

And I have been to Bogotá, to Medellín, to Cali before and I’ve seen something very similar. Even people who are very angry with the FARC, who are hostile to the FARC, want peace. And that is similar to the situation in South Africa.

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The other thing that is similar is a prolonged negotiation process. Not shortcuts. It took us 6 years all together to get a Constitution. Here it has been going on for 4 years. And I see great intelligence, great thoughtfulness and listening to the other side, without giving way on matches of deep principles, but trying to find accommodation. And I draw a distinction between compromise and accommodation. Compromise is just to do a deal, and it can be very unsatisfactory. Accommodation is to understand the other, and what their concerns and fears are, and to try to meet each other, to live together in one country. And we had to go in for a lot of accommodation, but it was principled, it was to achieve a nation.

I can also say on the ANC in negotiation that we often took positions that were not helpful to us in terms of gaining power, but which helped realize the dream of having a just and fair Constitution.


Just one little example: we decided against having a directly elected president. That would have been marvellous for us, Mandela stood out; there was enormous support for Mandela, but we said: no, we want parliament to be the center of our sovereignty and parliament choses the president. That was a decision we took against our electoral interests, but in favor of our principled vision of what would be best for the country. The other was that we opted for proportional representation instead of the constituency district system. The district system would have helped the ANC, with 60% of the votes we would have got 80% of the seats. We said: that’s not democratic. We want everybody to be in the parliament. And so the ANC got a reputation for taking principled positions, not based on power but based on principles. A lot of the prestige and the correctness of Nelson Mandela really belongs to a whole movement, a whole culture that was developed in that particular way.

A last question about an issue which is hot news right now in Colombia. Almost every day people from social organizations, from unions, are being killed by paramilitary groups. Did kind of a similar problem exist in South Africa and if yes, what did you do to fight against it?

In the period when we were negotiating there was great tension in society. And many people lost their lives through violence that was orquestrated by what we called the third force. Not the ANC, not the government, but a third force that was established by security people in the government and that relied on tribalism to a certain extent. And it caused tremendous mayhem, anger and loss of lives. But those of us, I was then with the ANC – when I became a judge I left politics completely – we refused to be deviated by that violence. We carried on calmly and we insisted that there ought to be proper attention paid to that. We broke off the negotiations at one stage, partly because the massacre was so violent, it was so public, we had white police security people would put black on their faces to make it look as if blacks were fighting blacks. That was the story that the then securicrats in the regime wanted you to believe. If we have democracy in South Africa the blacks will be killing each other so we must take over again. But we refused to be deviated; we carried on calmly. When we broke off the negotiations we gave very simple clear conditions for returning. But the real issue wasn’t even the massacres; the real issue was that we had two completely separate visions of South Africa. The government then wanted power-sharing between racial groups, and we wanted universal democracy and people being protected by a bill of rights.

And only when a majority of the other side accepted the vision of universal democracy, a non-racial democracy, non-sexist democracy, with protection through a bill of rights, not through race, not through ethnicity, then we managed to move ahead and get what was regarded one of the great Constitutions in the world.