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Justice Albie Sachs

“Confessions of an Activist Judge”

October 13, 2014

Albie Sachs was born in Johannesburg, South Africa in 1935. At age 17, he joined the Defiance of Unjust Laws Campaign. Since graduated at age 21 with a law degree, he practiced law, often in defense of people charged under racial statutes and security laws under apartheid. As a result of his work, he was placed in solitary confinement and 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, at the same time worked 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, establishing the rule of law for a liberation organization in exile. 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. While others might resort to retaliation as “an eye for an eye,” Sachs didn’t. 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, democracy, and the rule of law 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.

During that time, Sachs had been working on drafting the Bill of Rights for the democratic South Africa. His was a strong voice espousing an emancipatory view of a Bill of Rights. 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, emphasis is put on second and third generation of rights, to bring about transformation of an 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. He drew inspirations from the traditional African concept of “justice under a tree” in designing the logo and the building of the Constitutional Court, its site been transformed from a notorious prison into a testimony of the paramount importance of the Constitution for human rights protection.

Since appointed by Nelson Mandela in 1994 to the new Constitutional Court, 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. Further, 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.

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 working process of the judicial mind was candidly explained in his 2009 book 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.

 

October 13th, “Confessions of an Activist Judge”, Bush Auditorium, 7:30pm