Rule of Law

Albie Sachs


Albie Sachs has, through his life and work, contributed to the realization of the rule of law in a free and democratic South Africa, working as activist, lawyer, scholar, and framer of a new Constitution to heal the divisions of repression, discrimination and hatred of the past, and to establishing a society that respects diversity and is based on democratic values, social justice and fundamental human rights. Further, he has contributed to human rights and justice globally through an understanding of the rule of law in which the dignity of all persons is respected, and the strengths and values of all communities are embraced.

Albie Sachs was born in Johannesburg, South Africa in 1935, into a Jewish family of Lithuanian background. After matriculating from the South African College School at the age of fifteen, he enrolled at the University of Cape Town for a five year law degree in 1951. The next year, at age 17, he joined the Defiance of Unjust Laws Campaign and was arrested for sitting on a bench in the General Post Office reserved for non-whites. Three years later, he attended the Congress of the People at Kliptown where the Freedom Charter (1955) was adopted. After having graduated with a law degree at age 21, he took up the practice of law, often in defense of people charged under racial statutes and security laws under apartheid. As a result of his work, he was raided by the security police, subjected to banning orders restricting his movement, and in 1963 was placed in solitary confinement for 168 days, under a law that permitted the government to detain dissidents for a renewable period of 90 days without charge. Two years later he was again arrested and this time subjected to torture by sleep deprivation and intensive interrogation, which led to his exile to England in 1966. 

In 1966, Sachs published an account of his incarceration, The Jail Diary of Albie Sachs, which was adapted into a play by the Royal Shakespeare Company and later dramatized for British television in 1981. His 1974 book Justice in South Africa, based on his doctoral thesis at the University of Sussex, provided an insightful narrative on the development of the intricate and sophisticated legal system in South Africa, which enforced racial discrimination and apartheid. This was an example of rule by law rather than rule of law. His pioneering book with Joan Hoff Wilson in 1978, Sexism and the Law, studied the historical discrimination against women, by documenting the role played by the judiciary in Britain and the United States, which enriched his subsequent practice in the related areas of constitutional law. 

In 1977, Sachs moved to Mozambique to help build up a new legal system for the recently liberated African country. While there he travelled frequently to Zambia to work closely with Oliver Tambo, the president of the ANC. In 1985 he drafted the Code of Conduct and Statutes for the ANC, establishing standards of treatment as well as procedural guarantees for those detained on suspicion of spying for the apartheid government. The principles enshrined in the Code of Conduct, including “no-torture” in any circumstance, were drawn from contemporary international law, with an aim of establishing the rule of law for a liberation organization in exile. Justice Sachs regards the Code as one of the most important legal documents he has written. 

In April 1988, Sachs survived a bomb placed in his car by South African security services, losing an arm and the sight of one eye. He told the story of his recovery from injuries in his book Soft Vengeance of a Freedom Fighter, the core idea being that “to get freedom was a much more powerful vengeance than to subject the people who had done these things to us to the same harm”. His personal sacrifice, vividly portrayed in the image of “roses and lilies” growing out of his amputated arm as freedom is achieved, powerfully symbolizes the reconciliation process in the democratic South Africa that was about to be realized. At the heart remained the insistence of the paramount importance of the rule of law -- “if the person accused in a Mozambique Court of being responsible for placing the bomb in my car is put on trial and the evidence is insufficient and he is acquitted, that will be my soft vengeance, because we will be living under the rule of law.” 

Prior to the bombing attack, Sachs had been mandated by Oliver Tambo to help design a future Bill of Rights for South Africa, in anticipation of the inevitable success of the freedom struggle. His was a strong voice espousing an emancipatory view of a Bill of Rights with the extension rather than the restriction of democracy in South Africa. He argued for building “a system that guarantees achievable rights to all, rather than one that embodies the victory of one side over the other”, since “a Bill of Rights coupled with guarantees of an orderly transition to full democracy in fact provides far more security than racially based constitutional schemes.” Indeed, the new Constitution was built on a belief that “South Africa belongs to all who live in it, united in our diversity.” Besides enshrining the fundamental principles of dignity, equality and freedom, the Bill of Rights was tailored to dealing with the massive social inequalities of South Africa, in that emphasis was put on second and third generation of rights “not merely as the corrector of certain perceived structural injustices”, but also as “the major instrument in the transitional period after a democratic government has been installed, for converting a racist, oppressive society into a democratic and just one.” The concept of harmony achieved through close and sympathetic social relations within the community of persons whose individual dignity is respected, may be attributed to the African philosophy of Ubuntu (I am a person because you are a person, out humanity is inseparable). 

When the ANC was unbanned and Nelson Mandela released from prison, Albie Sachs returned to South Africa in 1990 and played an active role in negotiations for a new Constitution based on non-racialism and the rule of law. After South Africa’s first democratic non-racial elections in 1994, Nelson Mandela was elected President and the new Constitution with the broadly inclusive Bill of Rights that Sachs had helped design was adopted. Further, Sachs was appointed to the new Constitutional Court, the only judge who had been a high-ranking member of the ANC on the bench. With intimate knowledge of the values behind the Constitution, Justice Sachs played an integral part in the dialogue within the Court. In fact, he was also intimately involved in designing the logo and the building of the Court, based on the idea of “justice under a tree” – portraying where people would meet to resolve disputes in traditional African societies. An image of its African root, it aptly depicts the organic relations between people and the Constitution, because “the tree protects the people, and they look after the tree.” From that, the lively spirit of constitutional protection permeates the building of the Court, built on a hill where the most notorious prison in South Africa once stood. Justice Sachs assisted in authoring many of the Court’s most important decisions and in building its reputation as one of the most important sources of transformative human rights jurisprudence in the world. In terms of the rule of law, the Constitutional Court was noteworthy for its willingness to rule against the government. Indeed, in some of its cases, Sachs found himself a party to striking down as unconstitutional laws and actions of some of his former comrades in the ANC, including even President Nelson Mandela. Loyal to the programmatic character of the Bill of Rights, the Court added strong support to the justiciability of socio-economic rights. In the landmark case Home Affairs v. Fourie in 2005, Justice Sachs authored the Court’s opinion that legalized same-sex marriage in South Africa, primarily on the ground that exclusion of same-sex couples from the benefits and responsibilities of marriage constituted a violation of the constitutional guarantees of equal rights and human dignity. 

Since the earlier stages of his career, Justice Sachs has been a visionary and an acute writer and commentator. On the bench of the Constitutional Court, his judicial writings have been widely regarded to be particularly eloquent and among those of the highest quality. The process of making those decisions was not as smooth as it seemed, as he candidly explained in the Chapter “Tock-Tick: The Working of a Judicial Mind” in The Strange Alchemy of Life and Law. Further, he has been a pioneer in the transnational judicial dialogue, promoting the practice of reading and citing decisions of courts across jurisdictions. His lectures in many parts of the globe have helped many in their understanding of the various aspects of human rights protection and constitutionalism. His views on constitutional law issues have the potential of changing or influencing scholars, lawyers outside and inside government, and social movements in many parts of the world. 

Through his personal story, his constitutional wisdom, and his clear articulation of many complex issues concerning justice and human rights, Albie Sachs stands out as one of the most influential contemporary advocates for the rule of law. His views, backed up by unyielding choices of integration over differences and inclusiveness while preserving diversity, offer significant inspiration for societies dealing with issues of division, reconciliation, and the rule of law.

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