The aim of these discussions is to create a platform for conversation about the Constitution and good public leadership. This discussion dealt with race, conflict and the Constitution.
Approximately 80 guests – from academia, the diplomatic corps, civil society and the media – attended. The speaker was former Constitutional Court Justice and activist, Albie Sachs.
Justice Sachs engaged the audience, sharing several notable experiences from South Africa’s historical narrative in which he played a key role. Justice Sachs started by taking the audience back to 1988 and the drafting of the ANC’s constitutional principles. He told of how he was tasked to compile a Bill of Rights that would actualise the future Constitution. The bill had to deal with the question of group rights and importantly it had to set the path for majority rule. “I was nervous that day in Lusaka”, said Justice Sachs, in referring to how the ANC would react to the notion that with majority rule they would need protection against themselves. “I, however,” he said, “was not the one who brought the Bill of Rights to the ANC, it was the other way around”. The ANC, he stressed, was not opposed to the necessary checks and balances, instead it was the party that convinced him, initially a sceptic, to embrace the notion of equal rights for all within a multi-party democracy. “Ultimately,” said Justice Sachs, “we need a Bill of Rights against ourselves…”
This Bill of Rights was, however, initially criticised by the broader South African public. Many viewed it as maintaining the entrenched socio-economic structures. Conversely, says Sachs, it was to be an emancipatory document, one which would ensure moral coherence, setting the standard for transition under the transformational Constitution. This movement was largely aided by the political leaders of the ‘transition’.
Here Justice Sachs mentioned the value of Presidents Mandela and De Klerk, whom he said played a constructive role in shaping the new South Africa. He added that the “paternity of the Constitution” however lies with OR Tambo. Sachs said Tambo offered both the will and leadership that ensured that South Africa today is guided by the values of the Constitution.
Justice Sachs then reflected on his time on the bench, highlighting a few landmark cases that illustrate the important role of the Constitution in navigating race relations. The first was The Premier, Province of Mpumalanga and another v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal. In this case, the use of busses to transport white children from farms to schools – whilst the same was not done for their poorer peers – was questioned. The then Minister said it had to come to an end, citing discrimination as grounds. The Constitutional Court held that whilst there was indeed unfair discrimination being practiced, the right to just administrative process needed to be protected, and the schools were given a reasonable time to correct the situation.
In the Minister of Finance and Other v Van Heerden case, a former Member of Parliament (MP) of the pre-1994 government complained that the pensions being awarded to new MPs were greater than he could claim and thus amounted to unfair discrimination. The Court ruled that the Constitution in section 9 allowed for affirmative action to take measures to address the inequalities created by apartheid and its legacy of discrimination.
Justice Sachs stated that the Constitution is the backbone of our democracy, “a document for all seasons”, and that the judiciary has played – and continues to play – an important role in addressing sensitive issues such as race. He stressed that, “Sensitivity is important when managing diversity”. Furthermore, the Constitution demands a democracy built on inclusiveness and human dignity. When asked about the manner in which the Constitution envisages diversity in a multicultural society, Justice Sachs reminded the audience, “Non-racialism does not mean to deny diversity – it means to embrace and respect diversity. You have the right to be treated equally and to be different. That is unity in diversity”. He did not divorce any of his answers from the inherent right to human dignity.