Justice SachsIf we did a paternity or maternity test on the South African Constitution, whose DNA do you think would come up? It’s no one in this room, although there are people here who made a major contribution. Nor is it Nelson Mandela. The answer is: Oliver Tambo.

I recall a moment in March 1988 when I was walking to the microphone in a room in Lusaka about a tenth of the size of this one. My topic was a Bill of Rights in a democratic South Africa. And my heart was going boom, boom, boom.

Oliver Tambo had set up the ANC Constitutional Committee which had organised a workshop to discuss a document we had prepared entitled Constitutional Guidelines. For years our legal skills had been used to denounce apartheid. A typical paper I had written had shown how every single article in the Universal Declaration of Human Rights was being violated in South Africa. (With one exception, I should add – try as I might, I couldn’t show that apartheid denied rights to intellectual property!) Now we were moving our focus from what we wished to destroy, to what we were determined to build.

It was thrilling to work as part of a team with the quiet, thoughtful, principled and open-minded Oliver Tambo at the helm. My function at the workshop was to explain what a Bill of Rights was and why we needed one in South Africa.

About 40 people were looking expectantly at me. Some might have been there directly from the underground at home, but most were comrades living in exile, a couple from the MK military camps, others from various political structures. I had three arguments, and my heart was racing. How would these comrades at the heart of the struggle, many risking their lives on a daily basis, take my reasoning?

The first argument, the diplomatic one, was easy. To be seen to support a Bill of Rights would put the ANC in a positive light. It would tell people, ourselves, the world, that we were not power-hungry terrorists waiting to seize power, to get revenge. On the contrary, it supported the idea that we were aiming to achieve a free, democratic and law-governed South Africa. The delegates nodded their agreement, no problem.

The second, the strategic argument, was a little more complicated. An entrenched Bill of Rights was our answer (note that I’m using the word “our”- I was a member of the ANC until the 1994 elections, when I decided to be a candidate for the Judiciary, and stepped away from political activity) –  it was, I repeat, our answer, developed primarily by Oliver Tambo, to group rights. This was a time when protection of group rights was being strongly promoted as the key to a constitutional settlement in South Africa. In non-technical terms, group rights were being hailed as the foundation for creating a system of power-sharing between the white minority and the black majority. In more technical language, the principles of consociational democracy as advanced by Arend Lijphart were being invoked in favour of adopting group rights rather than majoritarian democracy. Lijphart’s central idea was that in deeply divided and segmented societies it was both principled and practical to grant as much autonomy as possible to the different community groupings. Each would then have a large measure of governmental control over its own special affairs, and all would accept governing by consensus at the national level. Even our closest friends internationally, from East, West, North and South, were urging us to “get real” and adopt some form of power-sharing along these lines.

It is a nice term, power sharing – but power sharing between whom? Between racial groups? The problem wasn’t only that the Constitution would in effect be entrenching a grossly inequitable status quo, in which the 13% white minority happened by law to own 87% of the land and 95% of productive capacity. It would also be placing racial identity right at the heart of all the structures of government. Thus, Parliament and the Presidency would be shared between persons selected as leaders of the different racial and linguistic groups. As we saw it, this would mean that a form of apartheid would be moved from the sphere of separate development and Bantustans right into the institutions of the central state itself. At the same time, race discrimination would continue to be shielded in the private sphere by the mechanism of constitutionally guaranteed property rights and freedom of association.