After the Revolution
Albie Sachs lost an arm in the fight against apartheid. Now that he's a justice on South Africa's high court, he's more cautious than rebellious.
South Africa's constitutional court was created in 1995, after the end of apartheid, and it still feels new. The court rents space in a bland office park, and the main courtroom's low ceilings and mismatched chairs remind you more of a community college lecture hall than the highest court of a nation of 44 million people. Sitting in those chairs on a Friday afternoon last May, and spilling into the hallway, were AIDS activists in "HIV-positive" T-shirts. They had come to demand that pregnant mothers have access to drugs that prevent newborns from contracting the virus. An arm's length away was the national minister of health, who has called the drugs "poison."
The 11 justices, in robes the green of soccer jerseys, sat in a raised semicircle. Among them was Albie Sachs, who at 67 has the vivid aspect of a mercurial Picasso clown, with mottled red and white skin and off-center blue eyes. He's the justice who helped draft the country's sweeping set of constitutional rights, including the right to adequate healthcare, which was at the heart of the AIDS case. And he's also a former freedom fighter with close ties to the African National Congress. During apartheid, Sachs was held in solitary confinement for half a year and lost his right arm in a car bombing by South African security forces. He embarked on a new career as a constitutional theorist and a jurist in 1990 after returning from 24 years of exile.
How does a revolutionary become a justice? Off the bench, Sachs, who is tall and rangy, likes to wear baseball caps and zany Van Gogh-inspired ties to make himself look less judge-like. On the bench, he's known as the "gut-feeling justice," a label that's both derisive and complimentary. The court has a heady mandate: to remake the nation's law based on the new constitution. The justices who write the leading opinions think the best way to establish their legitimacy is through cautious, step-by-step legal reasoning. But the court is also influenced by justices whose life experiences bestow on them a high degree of moral authority. Years before being permitted to go to law school, one black member of the court suffered the forcible removal of his family from their home. Sachs's past places him on the court's impassioned side. He often reminds his audiences at hearings that he's thinking about the people whose case is before him as well as the legal problems their lawyers present. Yet for all his empathy, Sachs resists the temptation to play the role of the idealistic dissenter who stridently calls for radical action rather than careful legal reasoning. Instead, he usually gives the majority his useful blessing when it defers to the government.
That isn't so surprising, since the government is filled with people Sachs knows from his ANC days. He trusts them to have the interests of the public at heart. But what role should the court play when groups like the AIDS activists complain that the government's policies fail to meet the needs of the ordinary citizens Sachs champions?
Born in Cape Town in 1935, Albert Louis Sachs was a pink-diaper baby. His father, Solly Sachs, was a labor organizer and then general secretary of the national garment workers' union. His mother, Ray Ginsberg, was a typist who worked for Moses Kotane, the black chairman of the South African Communist Party and a leader in the ANC. Yet when Sachs entered the University of the Western Cape at 15, he ignored politics. He played cricket, debated, and edited the school magazine.
But after his first year in school, Sachs joined a small multi-racial political group called the Modern Youth Society that spoke out against racial oppression. At the age of 17, he led a small sit-in with friends on a whites-only bench at a Cape Town post office. "It was kind of embarrassing," he recalled in a 1998 interview. "We sat there trying to be heroic and militant and the cops wouldn't arrest us." When he was eventually brought to court, the presiding magistrate sent Sachs home, to his embarrassment, with his mother.
The rest of the decade was less amusing. As the ruling Afrikaner Nationalist Party tightened apartheid's grip, the ANC, led by Albert Luthuli (the first South African to win the Nobel Peace Prize) and Nelson Mandela, began to organize large-scale protests. In 1962, after the government banned the ANC, Mandela went underground to command a new, armed branch of the ANC and the Communist Party.
Sachs was ambivalent about the ANC's embrace of violence and grateful that he wasn't asked to take part in it. Instead, he opened a solo practice in Cape Town where he handled routine divorces and bankruptcies to make a living and, for no charge, represented ANC saboteurs as well as clients who had been charged with violating apartheid laws.
After he called for the election of Luthuli as prime minister at an ANC rally, Sachs was caught up in the crackdown on the protest movements. Like hundreds of black activists and a smattering of other whites, he was "banned"prevented from leaving Cape Town and socializing with more than one person at a time. He continued his anti-apartheid work and, in 1963, was arrested under a law that allowed anyone suspected of political resistance to be held without trial for renewable 90-day periods.
Sachs spent the next 168 days alone in a small cell. It was the most difficult experience of his life. Initially he relished small gestures of defiance, like trying to smuggle a comb into his cell so that he could stave off monotony by cleaning it. At the end of the first 90 days, the police tried to break his will by telling him that he was freeand promptly rearresting him. Sachs felt his resolve ebb. "Now it is a question of stamina," he later wrote in The Jail Diary of Albie Sachs. "I am not sure how long I can hold out."
One of the odder things about Sachs is that he's written three memoir-style books, one of which became a play and a BBC TV production, yet he remains guarded about some key moments in his life, like the reasons for his release. But it's clear that he left prison proud: Of nearly 1,000 political detainees arrested that year, he was one of very few who neither gave the police information nor got slapped with an indictment. Back in Cape Town, however, he lost his nerve. He stopped defending blacks against apartheid-related charges because he was convinced that his law office was bugged and his phone line tapped. He decided to reward himself for having made it through prisonand to ensure that he wouldn't betray the movement or himselfby leaving the country. But he delayed his departure, paralyzed by the thought of what it would mean. "I was ashamed of planning desertion," he wrote. "It humiliated me to feel that I was losing control of my life and my destiny."
A year later, Sachs was back in prison. The police wanted information about a friend of his, Fred Carneson, who had been charged with sabotage. This time, there was no question of holding out: Sachs was deprived of sleep, an extremely effective method of torture, and he signed a statement describing his association with Carneson. When the police pressed for details, he tried to mention only people who were dead or had already left the country. But as he paced through the next three months, isolated again, Sachs admitted to himself that if he were asked to give evidence in court he'd do his best not to antagonize the judge so he could avoid being sent back to prison.
After being released in 1965, Sachs left South Africa as soon as he could. He went with his fiancée, a former client named Stephanie Kemp who'd been arrested for helping a small resistance group to hoard explosives. Bending the usual attorney-client protocol, Sachs had brought her a rosebud while she was in jail, and five days after her release Kemp told him she'd decided they should get married. By September 1966, the couple had made it to London. "To stay and resist to the end, not to give way, was a powerful notion," Sachs told me of his struggle over whether to leave. "But once the decision was taken, there was no looking back."
The couple spent the next 11 years in England. Sachs was comfortable there. But surrounded by other exilesthousands of ANC activists also left South Africa during this periodhe stayed focused on someday going home. "There was always the certainty that we would return," he said. Trying to understand how a court system admired for its sophistication could have countenanced apartheid-driven executions and expulsions, he studied the history of South African law at the University of Sussex. He also went on speaking tours for the ANC in Europe and later the United States, not as a leader or a paid employee, but as a supporter of the group's moral crusade.
In 1977, Sachs got divorced. His marriage is another gap in his memoirs, but Stephanie stayed in England with their two sons and Sachs moved to Mozambique. He wanted to be closer to South Africa, and he was excited by that bordering country's black-led revolution and about helping to rebuild it. He lived there for 11 years with half a dozen other white and black South African activists, working as a law professor in the capital and at the Ministry of Justice. Mozambique was a dangerous place to be. To insulate itself from the resistance work of the exiles, the South African government was trying to make the country an "ANC-free zone." It pressured the Mozambiquans to expel some activists. Its agents harassed and terrorized those who remained.
On an April morning in 1988, Sachs got into his car and a bomb exploded, crumpling the car and killing a passerby. A television crew that happened to be driving down the street pulled Sachs into their van and brought him to the hospital. Doctors operated for seven hours, amputating his right arm and pulling pieces of shrapnel from all over his body. When Sachs came to, he had four broken ribs, a fractured right heel, a severed nerve in his left leg, ruptured eardrums, and no vision in his right eye.
Strangely, Sachs was euphoric as he struggled to recover. "So I have lost an arm, that's all," he wrote in Soft Vengeance of a Freedom Fighter. "They tried to kill me, to extinguish me completely, but I have only lost an arm." Most important, Sachs felt released from the self-doubt that had plagued him decades earlier when he had been caught between his fear of prison and his guilt over leaving South Africa. As an "ambassador" for the movement, he was willing "to allow my body to be used as an exhibit. Not a crude exhibit, but a living, active, participatory exhibit in the anti-apartheid struggle."
In 1989, F.W. De Klerk took over the helm of a South African government that was cracking under its own weight. The cost of enforcing the apartheid laws was overloading the budget, foreign lending was drying up, and international sanctions were squeezing the economy. In response to these pressures, De Klerk legalized the ANC and the other banned resistance groups. He also released the 71-year-old Mandela from prison after 27 years. Over the next five years, the two negotiated the transition to majority rule.
When ANC lawyers started thinking about replacing the laws of apartheid, a liberal constitution was an unlikely choice. With the support of some ANC leaders, a group of black university students attacked the idea of a bill of rights as a "bill of whites." Blacks were within reach of power for the first time since the 18th century, when Dutch settlers conquered most of what is now South Africa, and they didn't want to constrain the representatives they hoped to elect. They especially didn't want to put elected officials at the mercy of unelected judges, who were then almost entirely white and male and had, for the most part, unfailingly applied the apartheid laws. Blacks worried that the right to property, among others, would preserve the white monopoly of wealth in the third most unequal society in the world, trailing only Guatemala and Brazil.
But international pressure pushed the leadership to reconsider. Sachs had gotten funding from the Ford Foundation to lay the theoretical groundwork for a new South African constitution, and he argued for a strong bill of rights. He took that position for diplomatic reasons"what kind of freedom struggle takes up an anti-bill of rights position?" he askedand because he didn't think change should happen at the whim of whoever was in power. But he also believed a constitution that protected the white-friendly status quo would fail. In an influential paper delivered in 1988 at an ANC seminar in Zambia, Sachs said that the "objective of a Bill of Rights should be to reinforce rather than restrict democracy," and he pushed for the inclusion of rights like access to housing, water, healthcare, and a clean environment. Instead of following the U.S. Constitution, which protects citizens from government interference, a new South African constitution could also obligate the government to provide social benefits, and so combat economic inequity.
After his return from exile in the fall of 1990, Sachs, now 55, joined the ANC's constitutional committee. It adopted the rights platform he'd advocated. More controversially, the drafters decided that South Africans should be able to sue individually to enforce the new socioeconomic rights. That went further than the constitutions of countries like Canada, India, and Ireland, where socioeconomic rights are included, but only as goals. And it exposed the government to demands for access to healthcare, housing, and water that could be impossible to meet. So the constitution included an escape clause: The state would be required to take only "reasonable legislative and other measures, within its available resources, to achieve the progressive realization" of these rights. The idea was to give the government incentive to try while acknowledging the practical difficulties of doing so.
The ANC took power peacefully in 1994, when Mandela was elected president and the party gained control of parliament. Two years later the legislature adopted the new constitution with 83 percent of the vote, including support from De Klerk's National Party.
The government and the public didn't trust the country's old-order judges to safeguard the constitution, so it put the new Constitutional Court at the judiciary's apex. Today, the justices include five white men, three black men, one Indian man, one white woman, and one black woman.
Sachs's 1995 appointment was controversial because he'd spent so much of his working life outside the country, and because of concern that his ties to the ANC would undermine his independence. Sachs didn't help himself much by "blowing his own trumpet" in describing his work abroad, as he and the press put it. Or by telling the committee that reviewed candidates, half-jokingly, that "I would give my right arm to get on to the court." But the court needed moral credibility as much as judicial integrity, and the vicious attack Sachs had survived made him a symbol of the anti-apartheid struggle. "With such an abundance of traditional male white lawyers, it was a struggle to find alternatives," said Wim Trengrove, a human rights lawyer who served on the judicial selection committee. "Albie was almost credible as a voice for others. His foremost qualification was . . . as someone committed to the constitution's values."
The court's undisputed leader is Chief Justice Arthur Chaskalson, the co-founder of the country's first and largest public-interest law center. Under his guidance, the justices have broken decisively with the past. They have abolished the country's death penalty, struck down a national anti-sodomy law, and allowed a woman who was raped to sue the government for failing to protect her right to dignity. They have also made a few major decisions that play well with white skeptics of the ANC, like a 1996 ruling that private schools could offer Afrikaans-only education as long as they didn't receive state funds. Overall, while embracing human and civil rights to an extent an American liberal would envy, the court has earned a reputation for restraint by deciding cases on narrow grounds and treading lightly when it rules against the government.
Yet in South Africa, the most difficult cases force the court to confront the country's lopsided division of resources. Since the 1999 election of Mandela's handpicked successor, Thabo Mbeki, the ANC has been accused of trying harder to create a black elite than to improve the lives of everyone else. "A lot of the grassroots groups demobilized after the transition," said Elsa Van Huysteen, an anthropologist at the University of Witswaterand who studies social movements. "The government was saying you have to be loyal and disciplined. But I think the tide is turning." While the government has made huge strides in getting electricity, water, and housing to low-income households, poverty remains rampant: Unemployment has risen to 30 percent because of fiscal belt tightening to attract foreign investors. In Cape Town, the superhighway to the airport passes row after row of cardboard and tin shacks.
The fight over resources has brought the constitution's guarantee of socioeconomic rights sharply into focus. In this area of law, Sachs is caught between his trust in the government and his commitment to the people the rights are meant to protect. He helps provide moral cover when the court doesn't give plaintiffs the relief they're seeking. Yet in key cases, he has reminded his colleagues why the rights to healthcare and housing matter, just as he proposed that the constitution include them.
In 1997, Thiagraj Soobramoney was dying of kidney failure. Based on his right to healthcare access, he asked the court to order the government to give him costly dialysis treatment. The justices knew Soobramoney could prolong his life if he could afford the dialysis, and that he would die soon if they denied his claim. Yet a ruling in his favor meant allowing him to jump the line ahead of those who had better long-term prospects than he did. The justices concluded that they had to say no. But Chaskalson's majority opinion did more than turn away one desperate man asking for an exception to the guidelines for rationing medical resources. It said that the right to healthcare was merely "a right not to be refused emergency treatment," and that courts "will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities."
Sachs backed the decision but wrote his own opinion to ease the ruling's sting. On the South African court, a concurrence is usually the closest thing to a dissentin 2000, 25 of the court's 28 decisions were decided unanimously. In this case, Sachs's concurrence "very poignantly indicates the dilemma the justices faced," said Iain Currie, who teaches constitutional law at the University of Witswaterand. "If resources were co-extensive with compassion, I have no doubt as to what my decision would have been," the justice wrote. "Unfortunately, the resources are limited, and I can find no reason to interfere with the allocation undertaken by those better equipped than I to deal with the agonising choices that had to be made."
Still, most human rights lawyers read the majority opinion as a major disappointment. While they accepted the need to ration medical resources, they faulted the justices for turning the socioeconomic rights into a dead end. Sachs doesn't say sohe goes out of his way only to praise the courtbut the criticism must have seemed like a personal rebuke. The court was being accused, with his support, of shredding the part of the constitution he'd advocated.
Three years later, Sachs gave a speech at Southern Methodist University School of Law in Dallas that obliquely urged his colleagues to rethink the position they had taken in Soobramoney. "We have to give some kind of concrete meaning to these affirmations; otherwise, people will ask what the point is of having social and economic rights in the constitution at all," he said. For a judge, it was a pointed warning that the socioeconomic rights were in danger of becoming meaningless.
The AIDS activists who came to the court last may thought that the country's new constitution guaranteed newborns equal access to drugs that prevent HIV from their infected mothers. There are more HIV-positive people in South Africa than in any other country. To address this public-health disaster, foreign manufacturers of the drug nevirapine offered to supply it at no cost. But President Mbeki, who attracted worldwide criticism for questioning whether HIV causes AIDS at all, warned that the drug-makers were giving nevirapine away so that they could addict the country, raise prices, and make huge profits. When his health ministry did make the drug available, it was at public clinics that served only 10 percent of the population.
The Treatment Action Campaign, an AIDS activist group, argued that nevirapine should be available to any pregnant woman whose doctor recommended it. Geoff Budlender of the Legal Resources Centerthe group that Chaskalson helped foundargued that the government's refusal to expand access to nevirapine was unreasonable. Then he explained what the TAC wanted the court to do. An order that declared unconstitutional the restrictions on the drug wouldn't be enough. Instead, Budlender urged the justices to lay out the changes they wanted the government to makeor, better, to keep the case open so that they could track its progress.
U.S. courts sometimes continue to supervise a case when they order far-reaching relief, like prison reform. But in South Africa, many judges are loath to be government overseers. So when Budlender raised the idea of monitoring health officials' compliance, Sachs broke in. Why should the court take such a step? he asked. Hadn't the court's more modest order in a housing rights case, brought two years earlier by homeless squatters, been obeyed? It was the opening Budlender was looking for. The squatters, he said, felt abandoned by the government, which had given them only crude shelter on a sports field where garbage wasn't picked up and rainwater was left to stagnate. "I told them that's precisely why we need a mandatory order this time," he remembered.
Next Wim Trengrove, appearing as a friend of the court for two South African human rights law centers, emphasized the need to do something concrete for the people who brought socioeconomic rights claims. By refusing to order remedies for the plaintiffs, the justices had created a paradox in which "nobody has a right to anything in particular, and therefore, everyone has a right to nothing at all." To give teeth to the socioeconomic rights, Trengrove was arguing, the justices needed to interpret them as guaranteeing a "minimum core" of goods and services to everyone.
The court rejected Trengrove's approach in a unanimous ruling last July. The constitution didn't provide for a minimum core, the justices said, and they refused to read one into it. Budlender and his client fared better. The court ordered the government to make nevirapine widely available at hospitals and clinics. Yet while the justices gave Budlender the order he'd asked for, they refused to ask the government to report back so that its response could be assessed. "The government has always respected and executed orders of this Court," they wrote. "There is no reason to believe that it will not do so in the present case."
The ruling, which was issued in the name of the court as a whole, is marked by Chaskalson's cautionyet also by Sachs's belief that the government has the best of intentions. Is his faith warranted?
Trengrove thinks not. Litigation might be a crude tool for change, he argues, but it's the only one that some poor people haveand the court has, in effect, taken it away from them. "If you don't have clean water, you have to prove that the government's entire water policy, in all its facets and levels, is unreasonable given the available resources," he said. "You tell me where a poor community in some godforsaken village gets the wherewithal to do that. That means these rights are only for people who get the help of the big, well-funded law centers. And then even if the lawyers win, that doesn't mean the litigant actually gets any water."
When I spent time in South Africa last August, clerks on the court and human rights lawyers were dismayed by signs that officials were balking at implementing the court's AIDS drugs ruling. The health minister, Manto Tshabalala-Msimang, told a Newsday reporter a few days after the decision that she was being forced to "poison my people." (She later denied making the statement.) In November, Budlender said that he was likely to take at least one of the provincial health ministries back to court for noncompliance.
At the same time, the TAC thinks the lawsuit helped push the government to consider an AIDS treatment program using anti-retroviral drugs, which Budlender called "a major breakthrough." That's the part of the picture Sachs likes to highlight. He wouldn't talk to me about the court's ruling on the record, but everything he said was an upbeat defense of it. If he's frustrated by the government's response, or wondering whether he and his colleagues were too timid, he hasn't said so publicly. It will take more than a few episodes of foot-dragging, however unfortunate, to convince Sachs to see the government more skeptically. "I was in the trenches with many of them," Sachs said of the ANC's leaders. "These are real people with huge problems and difficulties. The government is not just an Institution of Power, with a capital 'I' and a capital 'P.' "
Sachs's permanent home is still in Cape Town, in a small beach bungalowa few houses away from the one he grew up in. He lives there with his partner, Vanessa September, a 36-year-old architecture student. Their home is decorated with playful murals painted by one of Sachs's sons. In his chambers and at home, Sachs drops formalities. He's the justice who speaks to schoolchildren and on television, and who doesn't mind being recognized in the supermarket. "I belong to an institution," he said. "I respect it. But I don't think dressing in jeans or going to a jazz concert or jumping into the sea naked at night is in any way damaging to the court."
South Africans sometimes roll their eyes at Sachs's insistence on being un-Olympian. Many lawyers see him as "airy fairy," though they also concede that his unlawyerly approach has its place. "He asks these irritating questions in court like 'What will this all mean for the people?' " said one of the court's clerks. "On the other hand, the other judges can be horrifically technical. Not Albie."
Sachs's style plays best abroad, where audiences are content to see him as a living monument to his country's triumph over its brutal past. He packs large auditoriums as a speaker on the American university lecture circuit. Often, he tells his audiences about meeting Henri van der Westhuizen, the man who planned the car bombing intended to kill him.
Westhuizen is a former member of the South African security forces, and he came to see Sachs when he applied for amnesty to the Truth and Reconciliation Commission, the body set up by parliament to investigate apartheid-era human rights crimes. Over two hours of conversation, Sachs learned the details of the bombing and felt his old enemy's envy as Westhuizen looked around the justice's roomy chambers and complained about his own small pension. When their time together ended, Sachs said that he couldn't shake Westhuizen's hand. He didn't know how candid the man would be with the truth commissioners.
Months later, the two met again at a party. They went into a corner to hear each other above the loud music. Sachs asked what had happened before the commissioners, and Westhuizen said he'd told them everything he could about Sachs's case. "I've only got your word for it, but I can see from your face you are telling the truth," Sachs says he told Westhuizen. The justice put out his left hand to take the hand of his former enemy. Westhuizen went away "absolutely beaming," Sachs says, while he himself "almost fainted into the arms of a friend."
Lately, Sachs has told his story to raise money. The Constitutional Court is seeking about $2.2 million in foreign funds for the artwork for its courthouse. The court's permanent home is being built on a hill just below Johannesburg's Old Fort, the notorious apartheid-era detention facility that's now a museum about the prisoners who were held there. The idea is to make art part of the structure by incorporating mosaics, murals, weavings, and sculptures into the floor tiles, walls, even doorknobs. The artists will include international contributors and rural craftspeople. It's the biggest public art project that the ANC government has tried.
Some of the pieces hang in the court's rented hallways, and they're as un-judge-like as Sachs's ties. There's a blue gown that seems to float in the breeze, and a hallway-length tapestry called "The Benefit of the Doubt" with three huge Close Encounters of the Third Kind faces. Their message is that justice is for everyone.
Other justices can write the big opinions. The judiciary is now the people's refuge, in Sachs's eyes, and he is putting his stamp on South Africa's future by building a stone-and-art symbol of the law as he believes it's being transformed there. Whatever the art conveys, it's too soon to tell the shape the law will take. ...