The Constitutional Hill Trust in South Africa held a ten-day virtual Human Rights Festival around the end of this March and Albie Sachs, former justice of South Africa’s Constitutional Court and Tang Prize winner in Rule of Law, participated as one of the invited panelists in the online forum titled “The Politics of the Rule of Law” on March 25, South Africa time.
As pointed out on the forum’s website[1], “The rule of law is critical to the survival and prosperity of any democracy.” Moreover, the “fidelity to the rule of law and its consistent application to all people regardless of status” are important components of South Africa’s constitutional democracy and “accountability is an essential part of the rule of law.” During the apartheid in South Africa, “there was no rule of law,” but only “rule by law which saw the enforcement of racism and inequality through law.”
The forum focused on how, 25 years after the Constitution of the Republic of South Africa has taken effect, the Constitution and its people “have fared in upholding the rule of law.” How has the politics of South Africa affected the rule of law? What are the roles of the Truth and Reconciliation Commission (TRC), established to promote racial unity and reconciliation, and of the courts in South Africa “in strengthening the rule of law”? And looking towards the next 25 years of the Constitution, what can the people of South Africa do to ensure that they stick to and maintain the most fundamental principles in a constitutional democracy?
Albie took the chance to explain that the function of the TRC was to allow perpetrators of crimes to come forward and confess what they committed during the apartheid era. Once the truth came out, the wound caused by the apartheid could begin to heal and the society could start to move forward. From Albie’s perspective, the TRC was not meant to serve the purpose of political settlement. When the apartheid period in South Africa came to an end, the former regime that had oppressed its people was still very much at large. Therefore, telling the truth and seeking for reconciliation at that time acted as an avenue of emotional settlement for the formerly oppressed, as well as the persecuted. While there were difficulties in finding evidence for prosecution, it was through the perpetrators’ confessions which would lead to the option of granting an amnesty that the country can face and deal with the pain, and allow the truth to reveal itself.
Albie further stressed that the experiential truth, told from one’s personal experiences along the lines of either chronological truth or dialogical truth, was a way to recognize the torture and other cruel violations inflicted on the victims. The significance of the TRC meant there was no space for denial. More importantly, the TRC converted the information and knowledge it acquired into official acknowledgement by the State. It was crucial for the government of South Africa to acknowledge this painful history. However, whether the TRC can finally accomplish its mission to some degree depends on when there will be a truly equal and just society in South Africa.
Regarding the controversy over the current judiciary’s lack of judicial independence and accountability in South Africa, Albie made it clear that many people might feel he was too optimistic about South Africa’s Constitution and democracy. After all, issues such as corruption, inequality and violence are still prevalent in today’s society. But he recalled that when Nelson Mandela was the president of South Africa and the Constitutional Court ruled that the policy measures he adopted were unconstitutional, he went on TV and said[2], “I adopted the law on legal advice and I accept that legal advice was wrong, and I as president must be the first to show respect for the Constitution.” For Albie, that was the day when the country “became a constitutional democracy, not just a political democracy.” For this reason, no matter how many problems the Constitutional Court is faced with at the moment, the rule of law means no one is above the law, and any mistakes the judiciary made should be denounced and corrected.
Since 2015, Albie Sachs has been using the NT$10 million grant he received from the Tang Prize Foundation to found and run the Albie Sachs Trust for the Rule of Law and Constitutionalism (ASCAROL). The ASCAROL has been collaborating with the Constitutional Hill Trust to record and archive the history of the making of South African Constitution and Constitutional Court.
The Nelson Mandela Foundation was one of the main partners for this forum. Besides Albie, Prof. Ntombizozuku “Zozo” Dyani-Mhango from the Department of Jurisprudence of the University of Pretoria, political activist and commentator Khaya Sithole, and former Justice Kate O'Regan all took part in the forum to express their opinions.
[1] All the quotes in this and next paragraphs are taken from the forum’s website, https://www.humanrightsfestival.co.za/thepoliticsoftheruleoflaw
[2] To watch this forum, including AlbieSach’s remarks, go to https://www.facebook.com/watch/live/?v=796256301321406&ref=watch_permalink
