While South Africa has “horrible levels of corruption”, its Constitution is effective, we have free speech and media, a strong civil society, and citizens who have a longing for freedom, said activist and former Constitutional Court judge, Albie Sachs.
In a keynote discussion at the Trialogue Business in Society Conference 2019, Judge Sachs said: “I was an optimist even after I was blown up (in a car bomb in 1988, while in exile in Mozambique). I had the conviction that if I could get better, the country could get better.”
‘Perfectibility and corruptibility’ – breaking an old system and building a new one
“It’s been said that the architects of the Constitution were naïve about South Africa, that we thought everyone would be like Mandela. That’s not true.” He referred to his inaugural lecture delivered as an honorary professor at the University of Cape Town in 1991, titled ‘Perfectibility and corruptibility’, which he opened citing Ghanaian author Ayi Kwei Armah’s phrase – “the beautiful ones are not yet born” – commenting on how the country was poised at the verge of breaking an old system and building a new one. “We aimed for protection, to guard against corruption and create a new Constitution. But every Constitution is based on the tension between perfectibility and corruption,” he said.
The 1991 lecture examined how many former brave and committed freedom-fighters in Africa became authoritarian and corrupt once liberation had been attained. Judge Sachs said that as levels of corruption and state capture have become clear, there has been widespread disappointment and even some cynicism about what has become of the grand ideal of democracy and socioeconomic development.
This will be overcome, with a sense of urgency to bolster the need for reform, renewal and development.
“The Constitution must be ubuntu writ large, not smash-and-grab, not chaos. The Constitution, the Judiciary and our Chapter 9 institutions enable a nation of free people working together, at times working to protect people against ourselves, confronting transgression… toward dignity for all and security for all.”
For the love of the land
While he did not wish to predict the outcome of the national elections, Judge Sachs said that “what is important is that we do have elections and the right to make government accountable. There is a new openness in our society. Progress is being made.”
Nonetheless, he said, it is imperative that the issue of land be addressed. “Until South Africa grasps this nettle, we will never be a full nation. It is a massive form of inequality brought about through dispossession, and we must address and embrace the question of land. Many businesses have land and business should realise that if we want future customers we need a decent society. The time is now and this should be done voluntarily and graciously.”
Spatial development needs to be addressed because, at present, “we are adopting worse practice and perpetuating racism. For example, while Cape Town projects itself as a liberal city, it is extremely segregated.” The push for development and profits is not only destroying beautiful nature belonging to future generations, but is intensifying the spatial divide.
“You can’t just say some of the money will go to housing that is far away. All new residential buildings should include some mixed building on that site ‒ and we should be proud of doing it.” Gentrification should not drive out long-time residents.
Judge Sachs encouraged “progressive inclusion and advancement that is not cataclysmic” and “progressively creating new forms of evolving interests on the same piece of land.” He said much depended on personal circumstances, and encouraged change to start with low hanging fruit ‒ such as land that had been given to government for military use and was currently unused. “Love for the land can be a huge unifying factor.”
The test to the Constitution is a nation-building exercise
Judge Sachs applauded Constitution Chapter 9 institutions created to protect democracy against the exercise of power, and noted the offices of the Judicial Service Commission, the public protector, and the auditor general. “We appreciate the Constitution not only as a stable context for business, but helping us to become an integrated nation.”
Judge Sachs compelled those working in the development sector to not simply appreciate the Constitution, but to realise that it is helping us to develop into a nation of free people working together.” He encouraged the welcoming of current disruptions in South Africa as circumventions to the original sin, “which is intolerable and untenable, and has brought about the dispossession and visible forms of inequality. Our Constitution is kicking in, not only because it’s been well-constructed, but because it has huge popular support. Right now, in dealing with corruption, there is impatience, but the rule of law and the Constitution resist that. It is better to do things appropriately and leave the institutions to do their jobs. Don’t make it (dealing with corruption) a party political thing, let the institutions do their work. It takes longer but the results are more profound,” said Judge Sachs.
When asked about the future of the country, Judge Sachs shared the story about how, when he first awoke in hospital after the 1988 bombing, he reflected on what it meant to have survived, having “only” lost an arm and his eyesight in one eye. He said that he was an optimist then and is an optimist now, adding that he felt a tremendous amount of hope in the progress the country has made. The beautiful ones may not have been born yet, but they can be fortunate to come into a country that has safeguarded their rights and democracy.
IMAGE: Judge Albie Sachs in conversation with conference chairperson, Thabang Skwambane
Article written by William Smook and Khumo Ntoane
Photo taken by Cobus Oosthuizen