SEILS: ICTJ are delighted to host today a real giant in the world of political and legal struggle. Albie Sachs has not only played a huge and influential role in the development of the South African constitution but after being nominated by Nelson Mandela for 15 years in the new constitutional court. That success Of course came after very difficult and arduous path that included imprisonment, exile and the survival of an assassination attempt. I don’t think it’s an exaggeration to say that both the personal voyage and the legal contribution has been an inspiration to human rights and transitional justice. People the world over are delighted to welcome you Albie to this conversation. I just wanted to start off by asking you a little bit, we were talking earlier you said don’t use the R word, so I’m not going to mention the fact that you’ve moved into a different status since you left the court but can you give us a sense of what you’ve been working on since 2009 since you left the constitutional court?
SACHS: I spent fifteen months in Kenya as a member of the Kenya magistrates and judges vetting board, interviewing all the judicial officers who were in office when the new constitution came into force to see if they were suitable to stay on in office, a very arduous, very interesting, fascinating, grueling work over 15 months. And before that I’ve done writing, teaching, lecturing in many parts of the world, very much in South Africa but also internationally.
SEILS: The work in the judicial vetting in Kenya. This issue of vetting is something that’s not been a huge success in transitional justice processes in a lot of countries. Do you see that this is a possible model that can be replicated in other countries at this point?
SACHS: I think hugely valuable experience was gained in Kenya. It was carefully prepared. It was based on a constitutional mandate. The people drafting the constitution wanted something done about the judiciary, a judiciary they could rely upon, a judiciary that wouldn’t be corrupt, that wouldn’t be authoritarian, that wouldn’t in the pockets of those in power and Parliament then passed a law very carefully debated and constructed, after extensive consultation with the judiciary itself to ensure the process was fair. It was done in the public eye, with built in safe guards to ensure that it didn’t become a new form of witch hunt, a purge just getting rid of people ,or couldn’t be manipulated for political advantage… that was a genuine project to distinguish those judges who deserved to stay on the bench had a big contribution to make, had a lot of experience that they could pass on, to distinguish them from the judges who had really betrayed the oath of office. All judges are supposed to act without fear, favor or prejudice but many judges, in a gross way, a manipulative way, had shown prejudice, had shown favor, some had been bribed. Others were extremely authoritarian, others twisted the law to protect those in power, to grant impunity. We had to find out who they were and based on secure evidence and insure that we made the determination that they were unsuitable.
SEILS: To what extent did the South African experience inform the judicial vetting process in Kenya?
SACHS: We didn’t have anything similar in South Africa. The approach there was to allow the existing judiciary to stay in office while it was being transformed, a completely new constitutional text, but to place a constitutional court right at the apex of the whole judicial system to ensure that the new values were properly instilled, imbued into all exercises of public power. I don’t think the problem in South Africa so much was the manipulation of the law by the judges or taking of bribes. The problem was judges adhering to apartheid and supporting apartheid. Now apartheid was thrown out of the window and it was felt that in our circumstances maybe more damage would be done by wholesale exclusion than by requiring transformation to take place in a fairly sort of stead way. It wasn’t easy in South Africa, it isn’t easy in South Africa, but I think each country has to adopt its own modalities.
SEILS: I was thinking just to turn to SA for a moment, when in soft vengeance of a freedom fighter that I think came out in 1991 that you wrote about the recovery from the assassination attempt and other issues. The phrase soft vengeance, do you see that as a good description of South Africa’s approach or do you see that as a description as your personal approach to the legacy of apartheid?
SACHS: Well I’m not so vain that I identify by myself with my country but when I was blown up and I knew I was going to survive. That moment that every freedom fighter is waiting for, will they come for me, will they come for me, if they do will I be brave, will I get through. They tried to kill me and I got through. I felt fantastic and I had a total conviction as I got better, this was 1988, so South Africa would get better. But that was just a personal conviction. But when I received a note recovering in the hospital saying “don’t worry, Albie, we will avenge you” and I thought “we gonna cut off the arms, blind in one eye, the people who did this, is that what we are fighting for?” and I said to myself “if we get democracy, if we get the rule of law, if we get a country where people feel free and dignified as human beings, that will be my soft vengeance… and roses and lilies will grow out of my arm”. And afterwards when I heard that one of the persons planting the bomb in my car had been arrested, this was in Mozambique, and again I’m lying in the hospital bed and I said myself “if he’s put on trial, and the evidence is insufficient to prove his guilt and he’s acquitted, that will be my soft vengeance.” It is more important to live under the rule of law than to have one rascal more or less in jail. So the book that emerged is called the soft vengeance of a freedom fighter and I certainly see it from my own personal point of view, getting the wonderful constitution that we drafted as parted of soft vengeance, getting democracy in SA, voting as equals for the first time, that part of soft vengeance, it’s more powerful than hard vengeance. Hard vengeance is doing to them what they did to you, it’s no difference except you’re stronger or you might say your cause is better but it’s still denying the possibilities of human beings living together as equals in the same country. That’s what we aimed for and to quite a large extent we’ve achieved that. We haven’t achieved quality in daily life. There are massive discrepancies in terms of wealth and confidence and access to resources still based largely on color in South Africa, but we’ve got a great constitution and the mechanisms to enable people to get on with their lives. That’s what I call soft vengeance.
SEILS: It’s interesting, you I think you were to some extent ahead of the curve and the issues around gender and discrimination work with the book on sexism and the law back in the 70’s. One of the issues that we deal with here quite frequently now is how do we deal with the issue gender in transitional societies, how do me mainstream these issues and the challenge is always looking at entrenched discriminatory practices, how can transitional justice deal with those? Is that just part of the terrain of the legal and political struggle going forward or is that something we should deal with in transitional justice more ?
SACHS: Well it’s part of it but it’s not just part of it and the crucial thing is for the voices of women to be heard and it’s not a single voice because women are diverse and varied but these are powerful voices and they have to be incorporated in the process of transition, raise the issues that are very, very pertinent and important. Whether that’s constitution making, whether it’s personnel involved in government institutions, that’s important and really changing the whole culture and society, where you don’t have a few patriarchal men deciding everything for everybody and imposing it on everybody and think they are being nice and kind to women by protecting them in a certain way. In South Africa the issue cropped up at the const making level where the ANC insisted that of all the negotiating groups they had to be parity, fifty-fifty men and women, and it turned out to be very important. There are themes in the constitution that just would not have been there if women hadn’t been direct participants and possibly one of the most important moments in our whole process was when Geraldine Frazier-Moleketi, who’s now a senior figure in the UNDP, she was nursing her young baby and she had a lot to say to the negotiators and they didn’t have a crèche so she took the baby into the negotiating chamber and the little baby with the little whimpers every now and the mama with the child at breast became not just an imagined figure but a real figure. I must say many of us were thrilled that a bit of reality was now intruding on the abstract debates and so the theme of rights for women creating, a nonsexist society, was a theme to put on the table at that stage.
SEILS: One of the conversations we were having earlier, I’m still thinking about South Africa, but looking more broadly at the challenges a number of countries have faced since, is this issue of the balance between criminal punishment and some other forms of restorative justice and the degree, the question that’s developing now that we were talking about is, has international law moved to a position that requires criminal prosecutions, is the toolkit offering less tools for peace negotiations and to what extent can restorative punishment methods be used in a more creative way in peace negotiations?
SACHS: Well certainly in South Africa the truth commission, it’s really based on restorative justice - underpinnings played a huge role in our transformation. It meant the truth came out, you didn’t have the denial, the bodies were recovered, decent burials were given, people learned about the last moments of their loved ones and there was that sense of public acknowledgement of terrible things that were done. It was enormously positive and affirmative for the whole society but it wasn’t coupled with sending the people who came forward to testify what had happened to them, sending them to jail. That was the encouragement to enable the truth to come out. That was our mechanism. However if they hadn’t been the threat of prosecutions I’m not sure that so many people would have come forward with the truth. One big advantage of truth commissions is they can go much more widely than a criminal trial. A criminal trial just focuses on the culpability of that person. The causes, the background, the structural factors, the historical factors, cultural factors don’t get examined at all..so you just know that one person more has been sent to jail, or been held culpable, which might or might not be important in certain circumstances. On the other hand some conduct was so terrible and so beyond the limits of political conflict that amnesty was not given, so it’s not an automatic thing, it’s not an either or kind of situation. In Rwanda, after the terrible genocides, it was just impossible to even try and prosecute all the people and so the village encounters that had an enormous restorative effect that were really bypassing the ordinary accusation and punishment model I think played a very, very positive role and enabled the country to move forward without excluding the top level people from being prosecuted by the war crimes tribunal so I think that many different variants that could be used and it’s not a hard choice between the one or the other.
SEILS: One of the interesting things that we have come across in many countries is that you know in some countries you find people saying “we had no idea what was happening to other people”. I worked in Guatemala for a few years and a lot of people in the city said “we had no idea that these massacres were being committed in the mountains”. I think in something like Apartheid that’s probably less, it touched everyone black or white, it touched everyone in some sense, didn’t it? I’m wondering what difference the form of repression and abuse makes to the design of the mechanisms, how do you restore confidence in the institutions of the state? Do you think the actual form of abuse makes a difference to the confidence restoring measures that we need to take?
SACHS: The form of abuse, the extent to which denunciations, exposures were possible..but I’m a little bit skeptical of “we didn’t know” and sometimes you didn’t know because you shut your ears. I heard about Guatemala and I was far, far, far away from it and lots of things were in the public media and the press and Amnesty International and other bodies were campaigning on that so to me the huge shift that a good truth commission type process makes is to move, as one American put it, is to move from knowledge to acknowledgement. Knowledge is just knowing the facts, the details. But it’s abstract, it’s statistics, it’s accusations. Acknowledgment means it enters into your emotional world, your world of responsibility. Where was I? What was I doing? Why didn’t I know? Why did I close my ears? What would I have done if I had been in charge of the police? If I’d been one of the victims in prison? And it means that people enter into that realm with their imaginations, with their consciences, to try and feel the way, that has a very power effect, an impact in relation to your moral citizenship and your understanding and it also facilitates people to begin to live in the same country, not the same country physically but the same country morally and emotionally and I think any process whether it’s a criminal trial or truth commission or some form of public investigation, particularly if it’s a very participatory one, that enables people to come to terms with, to imagine themselves into the situations, in their own country, and now we speak about within living memory will be extremely important for enabling that country to live together again afterwards.
SEILS: Thank you very much, I think we are unfortunately out of time so it’s been a delight to talk to you Albie. Thank you very much for that and hopefully we’ll have the opportunity to speak you again sometime in the future. Thank you.
