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ALBIE SACHS: I've been a professor. I've been an honorary professor. I've been a professor extraordinary, which is the first time I've been a professor at large. In fact, today it's the second time, because I was professor-at-large here two years ago. And the topic that that's been advertised is 50 years of working with Nelson Mandela.
April the 6th, 1952, a day of great excitement for white South Africa, 300 years since Jan van Riebeeck, ship commander from the Dutch East India Company, had arrived in Cape Town and planted a flag, and in terms of the mythology of South Africa, began the process of civilizing that bit of Africa and started South African history at that moment.
It was a particularly intensely celebrated tricentenary, because just two years earlier-- four years earlier. Four years earlier, the Afrikaner Nationalist Party had come into power for in whites-only elections after largely having supported Hitler during the war. Nevertheless, with a voting system that favored rural communities, loaded very much in favor-- although they had a minority of votes, they won a majority of seats and now established apartheid as official policy of South Africa. They didn't introduce racism. It had been there for three centuries. In fact it was the British more than the descendants of the Dutch who conquered-- in a physical sense, with military power and economic might, destroyed the resistance of the African societies and communities, introduced the pass laws, formal segregation.
But now the Afrikaner Nationalist government philosophized a policy of separate development, as they called it; started establishing what they called independent Bantustans; took away the few minimal, marginal rights that people of color belonging to the better-off sections of the community, referred to as non-Europeans, non-whites, could have-- those were taken away-- decided to extend passes that African men had to carry to African women as well; and formalized and made much more rigid the whole system of segregation that had been there since slavery in the 17th century, colonialism in the 18th and 19th century, and in the 20th century.
The 6th of April, I was sitting in a small hall, jampacked-- much smaller than this, not with nice soft ragged seats. Many black people, a few white people. There's great excitement in this hall.
So while the planes of the regime are flying overhead and the flags are flying and the parades are happening and the armored cars are patrolling through the streets and so on, maybe 200, 300 of us in a small room. And we're singing in those days rather sad songs.
And there's excitement in the room, because its announced that the Defiance of Unjust Laws campaign is going to begin. So the day that was used to celebrate white domination was also chosen as the day to mark the beginning of a new form of black resistance, and unsitting. And we see our leaders defying the unjust laws.
The Defiance of Unjust Laws campaign, the idea was that black people would sit on seats marked for whites only. They would in the buses, in the trains, cross over a bridge section marked for whites only; that black people would be out on the streets without a permit after the curfew rang at 9:00 at night, at 9:00 or half past 9:00; that black people would go into areas reserved called locations for occupation by black people but without a permit to be there; that black people would be in the streets during the day without carrying their passes, that black people would defy the newly introduced Suppression of Communism Act, it was called, that was being used to suppress all opposition, imposing banning orders and restrictions on all people who were fighting for equality in South Africa. And we were excited.
And until then, our songs had been sad, sad, sad songs.
[NON-ENGLISH SINGING]
(SINGING) Come back, come back, come back, Africa. Come back, Africa.
But sung sadly.
[NON-ENGLISH SINGING]
(SINGING) What have we done to deserve this? What have we done to deserve this?
And suddenly there' a new energy.
(SINGING) Volunteers, obey the orders. Volunteers, obey the orders. Volunteers, obey the orders. Be ready for the action now.
[NON-ENGLISH SINGING]
(SINGING) Volunteers, obey the orders. Be ready for the action now.
And they call for volunteers. And the people are going up to the platform. And they're signing, they're signing, they're signing.
And I say to my friend Wolfie Kodesh, Wolfie, I want to join. He says, you can't. And I say, why? He said, because you're white.
And I said, but we're fighting racism. He said, no, this is a struggle of the black people. I said, I want to join.
And I'm hanging on now. I want to join. I want to join. It's like at a revivalist meeting and they're calling for people to go up. And I want to say, take me, take me, take me.
I'll pass on your request. And he passed on the request. And in December-- we chose the date quite carefully. Our academic year ends in November. I'd done my exams. And now I led a small group of whites from Capetown joining in.
10,000 black people had voluntarily gone to jail. And I would have been volunteer 10,347. And volunteer number one was a lawyer in Johannesburg by the name of Nelson Mandela.
So that's the prelude to my presentation. What's a nice guy like me doing mixed up with somebody like Nelson Mandela? What's a nice guy like Nelson Mandela doing mixed up with a guy like me?
We hadn't heard of each other. He wasn't a well-known figure then. He wasn't Nelson Mandela. He was comrade Nelson Mandela, just another person prominent in the ANC Youth League, and very, very meaningful that he had managed to pass his law exams. He could earn something.
He'd have to carry a pass. He couldn't vote. He didn't have dignity. He couldn't sit on his seat.
In most parts of the country, he couldn't go to the cinema. He couldn't go to the beaches. But he could make a bit of money. And he's voluntarily going to jail defying unjust laws.
And that's the curious history of South Africa. The only good thing that apartheid did was to create anti-apartheid. And because of its viciousness and its extent and its manifest injustice, it ended up bringing together people of the most diverse backgrounds. And we were coming together not simply to drink tea with each other, to get to know each other and encounter groups and to learn to understand each other's culture, et cetera, et cetera, et cetera. We were coming together to fight injustice as comrades in a common struggle.
So that was 1952. Fast-forward to the Congress of the People three years later. Somebody told me recently in the United States a couple years back that in fact the idea of having a Freedom Charter in South Africa had been born in New York at a meeting between Professor ZK Mathews, the first African principal of Fort Hare University, at the theological college there with the very wonderful African-American leader, singer Paul Robeson.
I was very thrilled to hear that. My generation, we loved Robeson. He was the Mandela of our era, something to do with the physical presence, the warmth, the embracing, the strong voice, good at everything that he did. And I even got credit in my youth movement because I could get closer to his voice than anybody else.
(SINGING) I dreamt I saw Joe Hill last night, alive as you or me.
Not bad, eh?
And their discussion was, we are denouncing apartheid. We're saying how wrong it is. Wouldn't it be good for South Africa and for the world if we can now proclaim the vision of the country that we want.
In any event, 2,500 of us met on a bare piece of veldt outside Johannesburg. And we had literally thousands of meetings throughout the country. People sent in their demands, what kind of country they wanted, what kind of country they wanted. These were collated into the 10 demands of the Freedom Charter, beginning with the ringing words, "South Africa belongs to all who live in it, black and white together."
Mandela couldn't be there because he was banned, restricted. I hadn't yet received my first banning order. I was there. It was wonderful.
And then we reached about the eighth clause. We were adopting by acclamation. And suddenly, we see we're surrounded. Heavily armed police, paramilitary on horseback. Others coming in with we call them Sten guns. Very dramatic moment.
If one stone had been thrown, we wouldn't be speaking about the massacre of Sharpeville. We'd be speaking about the massacre of Kliptown. And we stood up and we sang. And the singing was a form of discipline, of affirmation, of control, hearing our own voices and refusing to be provoked into attacking a force that could have just mowed us down.
The net result of the adoption of the Freedom Charter was a decision by the South African government to charge the leaders of what was called the Congress Alliance, ANC and supported by the South African Indian Congress, the Coloured People's Organisation-- those whites who wanted to join in, we didn't like the idea of a white people's congress, so we called ourselves the Congress of Democrats in the Congress Alliance. And our leaders are put on trial for treason.
And the argument was a very simple one. In South Africa, whites have the vote. Whites own by law 87% of the land. They dominate the economy. They run the courts, the administration, the military, the army, everything.
How can you say their must be equality? The only way you can get equality is through revolution. So the demand for equality, it was a revolutionary demand, but became the basis of the charge of treason.
156 people were put on trial. I'm really thrilled to hear Oliver Tambo's-- sorry, Nelson Mandela's law partner was Oliver Tambo. And the first thing he did when he was put in prison in the Old Ford prison, where we subsequently built the Constitutional Court, was to set up a choir, keep the people singing.
Amongst the 156 accused, there were about six lawyers. The trial dragged on and on and on. Technical challenges are made to the indictments, the charges. We don't have juries there. We had a judge hearing the matter, judges hearing the matter.
It's tedious. They put in every document that they could find, so amongst the documents they found at Kliptown when they raided were one document that said soup with meat and another one that said soup without meat. That went in automatically. It was for the lunch time. We had lots of people who were halal and vegetarian and so on, so they even put in the little signs that were found there.
So the six lawyers decided it's just too tedious. They had a team of very excellent lawyers defending them. They decided they would start defending themselves.
And so Oliver Tambo could speak and [INAUDIBLE] could speak and Joe Slovo could speak and a certain Nelson Mandela could speak. And that was the moment when Nelson Mandela started to become Nelson Mandela.
There's a very famous photograph, 156 people. It was composed. You'll see in the middle, taller than anybody else, better dressed, with a very imposing posture, Nelson Mandela. And there was just something about the manner in which he cross-examined the security police that held the attention of everybody in the court, his composure, his courteous way of expressing himself, his understanding of the rules of procedure. And that was when he now began to emerge as a preeminent future leader. He wasn't the leader of the ANC then.
At that stage, Albert Lutuli had become the president of the ANC, a very wonderful person who had all the qualities of warmth and openness and thoughtfulness and embracing everybody, coupled with a steely determination to stand for freedom. He had been chosen as a chief by his community, a very committed Christian, a strong follower of Gandhi and non-violence. And he was chosen by the ANC to be their president.
And the government said, you can't be president of a political organization and a chief at the same time. You have to choose. And he chose. And his speech explaining why he chose is called The Road to Freedom is Via the Cross.
And I might say, years later when it came to us voting for the first time, I remembered that phrase, the road to freedom is via the cross. In South Africa, we didn't want independence. We were independent. We wanted equality within one integrated country so that the majority could rule.
The road to freedom is via the cross. And the funny way that these things work, Archbishop Tutu, who is, shall we say, a little bit religious, was very taken by this statement by Albie Sachs, who shall we say is a little bit non-religious, just the way a theme and idea can percolate through upwards in terms of our history.
Eventually, in 1960, the treason trial is fizzling out. It's ludicrous even by South African standards and South African ideology to say that people asking for equality automatically are guilty of freedom. And then comes the massacre at Sharpeville, the banning of the ANC, the banning of the Pan-Africanist Congress, banning of the Congress of Democrats.
The Communist Party had already been banned. Individuals banned. Newspapers banned. Leaders banned.
And now Nelson Mandela goes semi-underground. He's called the Black Pimpernel. Now, that probably doesn't mean much to anybody here under about 90. But those of us growing up, we read about the Scarlet Pimpernel, a French story of long before James Bond, but a kind of similar character for that period.
And South Africa decides to become a republic, to withdraw its allegiance to Queen Elizabeth in England. And he issues a statement on behalf of the African people. He said, we are not against becoming a republic. But we want a right to decide how we're going to be ruled. And we are totally against the idea of a small section of the South African society deciding for everybody. We call for a national convention to represent all the people of South Africa to draw up a new constitution.
It's funny. This theme has been wiped out of our history, which has been reduced to saying, Mandela was a revolutionary and a soldier, but he spent 27 years in jail. It gave him a long time to think. When he came out of jail, Mr. Nice Guy, he said, OK, let's turn the other cheek. He was returning to where he'd been in 1961, where we had been in our demands, but now demands on our terms, not on the terms of the white rulers in South Africa.
You see him here. You see him there. He pops up. He disappears.
Instead of responding to the request, the demand to have a national convention, they brought out their fullest military might, the planes flying overhead, the tanks going through the towns, a show of might. And this was a time of decolonization throughout Africa, countries becoming independent, on the way to independence. 1960, I think negotiations has started in northern Rhodesia.
The war in Kenya, a very bitter, savage war by British colonial forces against the local people, drawing to an end. Nigeria becoming independent. Ghana being the first. Which way was South Africa going? And their position is granted.
We are not giving in. We will have separate states for the black people in their bantustans. And the whites will rule white South Africa, which, just by the way, happens to include 87% of the surface area. All the developed areas, all the beautiful areas just by pure happenstance happen to be in white hands.
He goes underground. The first bombs go off. Umkhonot we Sizwe is formed.
There's a lot of reconstruction going on now as to his exact relationships with Albert Lutuli at the time. And my understanding is Lutuli remained committed to non-violence himself. But he felt as a leader of the organization, he can't impose his views on the whole organization.
And the people were saying, our people are angry. Our conditions are getting worse and not better. The government says it's a question of granite. We're not going to budge. And it's submit or fight.
And if we don't control the fighting, if we don't direct it, if we don't make sure that it has a political dimension and under political control, there's just going to be a racial war in this country. The choice wasn't fight or not fight, how to fight and what leadership would be given to the fight. And so the bombs were going off. It's a different kind of a country.
I haven't spoken about this very much, but I remember. I claim to have played the least significant role in the armed struggle of anybody. I'm close to being a pacifist myself. I'm not a pacifist. I supported the armed struggle.
I think it was necessary. I think it was a crucial ingredient of our transformation and change. But I didn't get any training myself. But let me explain to you why I say I made the least significant contribution to the armed struggle.
It's 1961. I'm an advocate, here you'd say an attorney. I'm in my chambers high up. There's a knock on the door. Somebody comes in. He says, you don't know me, an African man.
He bends down and he takes a piece of paper from his sock, picks it up, gives it to me. And he said, in half an hour, somebody else is going to come here. Would you mind giving him that piece of paper?
So I put it in my sock. And I wait and half an hour passes and there's a knock on the door. Somebody comes in.
I bend down. I take the piece of paper out of my sock. I give it to him. He puts it in his sock and he goes out.
Something that somebody said a few weeks later made me think this was the Umkhonto we Sizwe oath. So that was my contribution to the armed struggle in South Africa, keeping the oath in my sock-- I'm not sure if it was my right leg or my left leg-- for half an hour.
In any event, the country is changing now. Our people are being captured, locked up without trial, tortured to death, clients of mine. I remember Beauty Solwandle coming to my office to say, my husband Looksmart was picked up by the security police. And I'm saying, yes, I know. I know. There's nothing we can do.
And she slowly tells the story, beginning at the beginning, going through step by step, step by step. I'm saying, there's nothing we can do. There's nothing we can do. The law gives the police complete power to detain without trial, without access to family, lawyers, anybody.
And then she says, his body was found hanging in his cell, the first of the political detainees to be murdered. I said, well, there is something we can do. We can at least push for an inquest.
And one by one, more people are going in. One by one, people are dying in detention. We hear Mandela's captured. The United States of America played a role. The CIA gave information to the South African security forces that the terrorist Nelson Mandela would be heading to Howick, where the waterfalls are. The police were waiting, captured him.
Put on trial. The authorities don't know the full extent of his involvement. And he's tried before a magistrate with leaving the country illegally and breaking his banning orders.
And he decides he's not going to defend himself in the ordinary way. He's going to put the magistrate on trial, but he does so courteously. Your Worship, he said, I'm going to make an application that you should recuse yourself, disqualify yourself. It's no personal disrespect to you as a person, the way you fulfill your office. It's because of the circumstance in which you find yourself. I feel I am a black man and a white man's court when I should just feel I am a person in a court being charged.
And he builds up towards the conclusion in the end by saying, and in South Africa, it's the guilty who drag the innocent before the court. It's a political speech, a beautiful speech. It's not well known. And he's sentenced to five years imprisonment, the maximum.
Now already Nelson Mandela is emerging as Nelson Mandela. There was an eloquence, a style, a poise, a confidence. I might mention that I'd met him in the underground a little while before that. And we were meeting literally in the underground. You had to go down some steps in this house that we were in.
And we see this tall figure, quite difficult for him to navigate his way down. And we're all tense as anything. If the police come, we're all going to jail for decades.
And he's smiling. He's warm, almost cavalier, almost too confident. But it was reassuring to us.
And then that terrible day when our leadership, underground leadership is captured at a house in an area called Rivonia. It was their last meeting. They were going to move somewhere else. They felt it was too well known. The police captured them there.
Put on trial, trial for their lives. Nelson Mandela, accused number one. Some of the top lawyers in South Africa just feeling the power and the strength of the resistance, the opposition, the caliber of the people that had been charged, appearing. International Defence and Aid Fund in Sweden, United Kingdom, United States sending funding to help pay for the legal defense, to look after the families.
There's a slight testimonial inconvenience for Nelson Mandela. There's a document called Operation Mayibuye that speaks about planning an insurrection, guerrilla warfare, landing people in different parts of the country. And it just happens to have some handwriting of his commenting on the different aspects.
A decision is taken. He's not going to deny the charges. He's not going to say he didn't plan an insurrection. He said that particular document in fact was not an official adopted document. It was a discussion document.
But the fact is, he said, I grew up in a community, very democratic in the rural area. The good traditional leader was a traditional leader who worked with the community, who listened, who sought consensus. You believed in rights and freedom in a very broad sense. And our claim in all the decades has been for justice and rights for everybody in South Africa.
And he made a statement. It's called a statement from the dock. I don't know if you have anything equivalent in American court procedure. In South Africa, you can remain silent, which you can do here. But if you remain silent and there's very strong evidence against you, then the only conclusion is you're guilty.
You can call witnesses on your behalf. You can challenge the prosecution evidence. You remain silent. You can go into the witness box and testify on your own behalf, contradict what the prosecution is saying. Then you are cross-examined.
Or you can make a statement from the dock. So you stand up where you're accused. It's not the witness box. You make a statement. You can't be cross-examined.
But it doesn't carry the same weight as testimony that's cross-examined. It might or might not be meaningful. And the big advantage for him was he could make the statement from beginning to end without being interrupted.
It became the famous Nelson Mandela Rivonia speech, and ending with the words, I believed in dignity and equality for everybody. I fought against white domination, against black domination. These are the ideals for which I've lived, and these are the ideals for which I am prepared to die.
And one of his lawyers, George Bizos, said, Nelson, you are asking the judge to hang you. Can't you say, "if needs be, I'm prepared to die?" And if you see the film tomorrow, you'll actually see what Mandela's decision was in that respect.
And those are the last words anybody hears from him for 27 years. But wow, what words. You've got to go, that's the way to do it.
And silence can be enormously powerful. The fact that he was being silenced in itself resounded throughout the world. And the person who campaigned harder for Nelson Mandela than anybody else was Oliver Tambo, his former legal partner, his comrade, who's now leading the resistance in exile and realizing if you simply campaign for the political prisoners in abstract, it's too abstract. The Rivonia Accused is too abstract.
So OR Tambo said, let's focus very much on Nelson Mandela and the other accused. And so his name now began to crop up all over the world. And I can remember when after the bomb, out of hospital, 1988-- he was born in 1928-- or was it 1918?
AUDIENCE: [INAUDIBLE]
ALBIE SACHS: '18? 1918. So 1918 to '88. Come on. You guys are smart.
AUDIENCE: 70.
ALBIE SACHS: 70. 70th birthday, huge concert at Wembley Stadium in London, at a time when people are complaining, the youth, the youth are not interested in politics. They're only interested in their bikes and-- this was before computer stuff and phones and stuff like that. Apathetic. 70,000 young people at Wembley Stadium, this big soccer stadium.
(SINGING) Free Nelson Mandela.
And they all sing and they cheer and they sing and they cheer. It's a strange kind of trick of memory. I was convinced and I actually said at some meetings that I went to that concert. And I didn't know what do you-- what do you do at a pop concert, you know? Do you stand up? Do you wave your arms? Do you watch everybody else.
But I read afterwards recently somewhere I actually wrote about watching it on television. So I didn't actually go, although I placed myself on the spot. But I remember the excitement, the power of the person who'd been silenced.
And finally, Nelson Mandela is released. For us the big moment actually was unbanning of the ANC. This was just an incident in it. But the world speaks about the release of Nelson Mandela and the unbanning of the ANC and other organizations.
And we can go back. And we can go back home. I'd been away 24 years.
The political prisoners are coming out. And we're not just going back. We're going back to transform our country in the light of democracy, of basic rights.
Mandela didn't play a significant role in the actual writing of our new constitution. He played an enormous role as the public face of the ANC and a very important role in our internal debates and discussions. But it's worth mentioning at a very early meeting of the National Executive of the ANC now it's been elected in South Africa, our first meeting after 30 years on South African soil, and we're choosing our leadership, and overwhelming support for him. As it happened, Oliver Tambo had had a stroke. He was given honorary positions, so there wasn't a need to create two top positions in the organization.
And at one of our-- I think our very first meeting, Mandela reads out the president's speech for discussion. And one of the members stands up and says-- and he's trying to be diplomatic and sometimes the harder you try to be diplomatic, the worse it is. It's sometimes better just get to it. Say what you've got to say.
And what he wanted to say is, I don't think it's right that the president starts off with a speech and we simply discuss the speech, we agree, we disagree, we moderate and change. We should have open and free discussion. And then as president, you can sum up at the end. Otherwise, the people who are writing, preparing the president's speech are laying down too much of a line in advance. Any event, this comrade says all that, but very, very indirectly.
Mandela is stung. He's patrician. He can get quite angry. But he controlled his anger and he accepted the position, the point that had been made. And I still remember at our tea break afterwards, he went up to this person, put his arm around him, didn't discuss that issue, just asked something else, as if to say, you were right and thank you for having the courage to stand up and saying what you think is right.
We had fantastic discussions. And they weren't based on some little inner caucus and committee preparing a document which you then agreed or disagreed with. Completely open and free debate and discussion. One reason we have the marvelous constitution we have in South Africa was that freedom of debate inside the ANC at that stage, the openness of it.
I've mentioned Mandela's stubbornness. The one issue that he felt very strongly on was voting for 15-, 16-year-olds. I was on the constitutional committee. We discussed this many times. 18, internationally accepted 18. ANC wants 16. It looks as though we want school children to bring us into power.
No, no. No, no. You must understand. The children of Soweto paid a huge price for us to get our freedom. But Comrade President, that was in 1976. It's 20 years ago. They now are middle-aged.
No, no. No, no. No, no. They must get the vote. Somebody had done some research on his behalf and said there are five other countries in the world where 15-, 16-, 17-year-olds get the vote.
I said, oh, yes? It was North Korea, North Yemen, Eritrea, and I'm not sure where else. And the ANC Constitutional Committee sent me three times to speak to him. And the third time, eventually he said, oh, well, I can see-- I can see I'm not getting any support, but history will show that I was right.
And Professor [INAUDIBLE] was just telling us this story last night, how in fact he told that story against himself years later when he was now the retired president and he wanted to tell Thabo Mbeki, please, step away from your ridiculous and tragic position on HIV/AIDS, saying that it hasn't been proven that the virus exists. And presidents can be wrong, and I was wrong, and I'm willing to say I was wrong. Unfortunately, the hint wasn't taken at the time.
But I mention that to say how complex and rich and textured the whole constitution process making was, and that his role was to be the public face to a great extent, to give it style and bravura, to intervene in some of our debates, but basically to listen, to listen, to listen, to listen. And the reason why he was such a powerful and effective president was that he was such a wonderful team leader.
It's so different from presidentialism in the United States, where a figure is chosen, has a group around him and maybe her, and it can be very personalized. With us, you're a product of history, of tradition. The organization to which you belong has deep roots in the community. It's now 100 years old. There's a style of work. There are many inputs in the ANC.
I often wonder, what is this strange organization? There's no equal really to the ANC and its amalgam of ingredients in our national liberation struggle. My background, my parents coming from-- fleeing from Lithuania with Socialist ideals, millenarian ideals, joining the Young Communist League in the 1920s, my father expelled from the Communist Party afterwards, my mother the typist for Moses Kotane, the general secretary of the Communist party, who shocked the comrades when he said, I'm a native first and then a Communist. Oooh. How can he say that? But he was the one who persuaded the Party to accept national liberation rather than class struggle to achieve Socialism as the core of the political.
Anyway, that's my cultural background, existential background, and linking up with revolutionary movements all over the world and with this idea that you're not fighting a people, you're fighting a system, a system of oppression, a system of injustice. So we're fighting to change the system. It's not personal. It's certainly not racial. And this idea that you are part and parcel of an historic movement that's been there deep back into time for humanity and all over the world, the partisans against Hitler, the partisans against the Japanese invading armies, the people fighting for freedom, for independence, for liberation, that's part of my cultural background, the people who resisted the Nazis.
And then you had Gandhi in South Africa, 20 years, arriving this rather dandified barrister from England to handle a commercial case. You read his very beautiful book, My Experiments With Truth, and he describes he took dancing lessons and learned French to be a barrister in England.
And he arrives in South Africa and he's thrown off a train. The barber won't cut his hair. He's subjected to humiliations, although he's far more educated and cultivated in every way than the people doing these things to him. And so he transforms himself from being that dandy figure, the barrister, the British barrister, into the Gandhi you ended up with, the dhoti, the lean figure, the person who subdues a lot of his own passions and emotions for the sake of investing them into the people's struggle.
And passive resistance, born in South Africa, being used in South Africa. The Defiance campaign to some extent modeled directly on the Gandhian experience, with some survivors from Ghandi's campaigns participating in the 1952 Defiance of Unjust Laws campaign. It's another stream flowing in.
And then we have the impact of I'd call it British radicalism coming through in different ways, a bit through the trade union movement, a lot through sections of the clergy. Most of the Anglicans quite happy to bless white domination, to see it as the Lord's wish. But quite a few of the missionaries as well, shocked and affronted and rebelling against it, providing a space for education, different schools and then Fort Hare University, for African people to achieve a measure of dignity, independence of thought, influencing Mandela, Tambo, and others, and kind of notions of fair play and what's right and what's not right.
Another theme that's feeding in, in Christianity in its affirmative dimension, if you like its internationalist dimension, that we're all equal under the color of our skin, feeding in-- so it's the Communist, it's the Gandhi-ist, it's the Christian certain radicalism from the British empire. And to my mind, the most powerful ingredient of all is ubuntu, deep, deep into African philosophy, a culture of human interdependence.
I'm a person because you're a person. I can't separate my humanity from an acknowledgement of your humanity. We are not atoms competing with each other for space that I can do what I darn well like as long as I don't harm you.
That's not enough to say I'm not harming you. I want to work in a way that's respectful of you. I want us to interact. I feel that I can enhance my personality if I respect yours and learn from you, give to you and take from you. And it's that spirit of ubuntu that survived all the pressures of racism, colonialism, apartheid, that remained in that sense basically undestroyed in our society so you get this amalgam of all these different currents and trends producing what became ultimately our national liberation movement, and beautifully articulated and presented by Nelson Mandela.
There's a lot of discussion going on now, did he ever join the Communist party or not? And it's almost like a theological question to people asking it. He was working with Communists in the underground. You didn't have Party cards in those days. My own guess is that he never formally joined, although he worked very closely.
But the fact was these currents were interacting with each other. Albert Lutuli, non-violence, minister of religion, trained at theological-- theological seminary in New York, president of the ANC, would say, let me speak to Moses Kotane. I want to know what the workers are thinking. Kotane would say, let me speak to Albert Lutuli.
It wasn't, which side are you on? Make a choice. It was how can we work together, fuse. And as I mentioned, Mandela better than anybody with more style, and happened to be taller than anybody just about, articulated and represented all these different currents.
Any event, the wonderful day comes when he's the president. If you go to the film, you'll see it moved me so much each time that moment where the crowd are going berserk and he takes the clerk's arm and walks out with the clerk. It's a kind of generosity that comes from enormous confidence, enormous strength, from a deep sense of humanity. I'm not being nice to him.
It's understanding this is the moment of our triumph in South Africa. We've got a democratic constitution. I've been chosen by Parliament to be the president of the country. And I want the clerk to participate in that moment, not to skulk in the background, not to feel humiliated, but to feel our country is moving forward. I want to help lead him forward.
The last phase of interaction with Mandela is of a different order. I'm now Justice Albie Sachs of the Constitutional Court in South Africa. And he is Nelson Mandela, president of South Africa. And he is the one who appointed me from a list sent up by the Judicial Service Commission.
That marvelous day when we are sworn in, and we're so glad that Mandela is sitting there presiding over the proceedings, showing the support of the new democratic government for the Constitutional Court. And how do we show our gratitude? Six months later, we strike down two important proclamations issued by President Nelson Mandela. Now, that's gratitude for you.
And they were progressive. They were about having the first democratic local government elections in South Africa. And Parliament looked at its timetable, said we don't have time to follow all the usual procedures. Mr. President, will you issue regulations dealing with free and fair, secrecy, financing, appointing officers, no campaigning within so many meters, et cetera, et cetera.
He said fine. He did that. It was challenged on all sorts of grounds by the opposition representing the old guard, [INAUDIBLE]. And the challenge comes to us. We didn't accept the argument they'd advanced. But we said, our constitution says that Parliament has the legislative authority. Parliament cannot entrust the legislative authority to the president. Parliament can pass a law and say, Mr. President, fill in the gaps with regulations. But the primary law has to be passed by Parliament itself. Profoundly important constitutional principle.
It was inconvenient. The elections were due to be held quite soon. Parliament was in recess. 400 members had to be summoned, many to fly to Cape Town, to rush through the measures to make the law constitutional.
And Mandela goes onto television. And judges watch television to see how their decisions are being reported, at least we certainly did in this case. I mean, come on. He'd appointed us. He'd been in jail for 27 years. This is a manifestly progressive measure.
Parliament gave him the authority to do it. He didn't grab that authority. We can have voting for the first time black and white equals in the local government.
He goes onto television, says, when I adopted these proclamations, I acted on legal advice. I now accept that legal advice was wrong. And I, as president, must be the first to show respect for the Constitution as interpreted by the Constitutional Court.
What a moment. For me, that moment was as important as the time when we all voted as equals for the first time, because South Africa now is not just a democracy. It's a constitutional democracy. And the president is showing total respect for the Constitution.
And the fact that Mandela did it so early on in such a gracious way-- I mean, he actually emerged with greater prestige, because he's saying, and you see what a fantastic country I'm the president of. He ended up not defeated, huffing and puffing, well, what can I do. The court has said that. What do they know?
But if Mandela can do that, then the Postmaster General or the Minister of Justice or whoever it might be, the town clerk, they're not going to feel personally offended if the Court rules against them. You're living in a constitutional democracy. Rule of law, the Constitution, is supreme.
We had another three or four cases in which he was personally involved. I'll just run through them very quickly. The first was the rugby football union case. This was a clash of the presidents. The president of the rugby football union felt he was a much more important president than the president of the country.
And the president of the country, on the advice of the Minister of Sport, set up a commission of inquiry. There were allegations of racism and corruption. And now the president of the rugby football union challenges it, challenges it in the High Court. Mandela testifies in the court against the advice of his lawyers, who said presidents don't testify. I think he felt he could charm anybody, even the judge. And the judge was charmed, but in effect said, I don't believe him.
The case comes on appeal to us. And we just felt the judge was completely wrong on the law and even on analyzing the testimony and understanding. Any event, we had to now create a whole new approach to the way to review presidential conduct, setting up commissions of inquiry and so on.
In the meanwhile, we are being asked to disqualify ourselves on the basis that we were all too close to Mandela, that we couldn't be independent. And if we disqualified ourselves, there's no court left to hear the matter. And the issue was probably the most extensively worked out legal judgment, opinion you would say, in the world on when judges should recuse themselves, disqualify themselves. And in the end, we upheld the legality of the commission that he'd set up.
Another case was the Medicines Act, a pharmaceuticals case actually, brought by the pharmaceutical companies. And there'd been a change to the regime of controlling dangerous drugs. And the law actually said, we abolish the old regulations. But after Mandela had signed the law into power, he saw there weren't new regulations in place, which meant now there was no control over heroin, any of these drugs at all.
He went to court and said, please, wipe out my signature. I don't know exactly-- I don't remember exactly what the High Court judge did. It came on appeal to us.
It was a tricky case. And we thought, can you use necessity? Very dangerous doctrine in the law, necessity. And we decided on rationality, that all law in terms of the rule of law must serve some rational function. And if this new law, this new act was actually going to undermine legality and destroy control of dangerous products like that, it was irrational.
The fact that it was done because he got bad legal advice was the background, the context. It wasn't the justification. The fact was it was not a law. It was something that had the face of a law, but was actually undermining law.
And in fact, this principle of rationality is being used quite a lot in South Africa today. And it's even spread to Kenya, where there has to be a certain basic rationality, a core of rationality. Once that's there, the officials pointed out by the Constitution to have certain functions have a very wide discretion. The courts won't interfere. But if the action is destructive of law, then the courts can intervene.
And the last act involving him was the Liquor Bill, where it involved an attempt to allow black retailers to participate in the sale of liquor, which you can imagine is a big industry in South Africa. And I would regard it as a manifestly progressive measure, but it intruded on national powers intruding on what you'd call state powers here. And he refused to sign. Against his own party he sent it back to Parliament. And Parliament stuck to its guns.
He then referred the matter to the Court, expressing reservations. That's against his own party. And we upheld his reservations. And to my mind, that's how a president should act, in the name of the country, in the name of the Constitution, not just of a particular party.
So it was a marvelous note, if you like, for him to end on. And he stepped down after five years. He could have stayed on longer. He felt He'd done his job, to tide South Africa over, to accustom everybody, black and white, to be living in democracy, under majority rule, in a constitutional state.
And these are the reasons why we were all so proud of him, why, when he died not too long ago, there was dancing in the streets because we were celebrating his life. But let me just end with this. There's a new generation in South Africa now, who were born in '94, when democracy came, who didn't live under apartheid.
One of the guys said, Mandela? What's he done? He was locked up in jail for 27 years. He couldn't do a thing.
Wow, was their reaction to that. But that was indicative of a different kind of approach. And so from the over-adulation now, there's a lot of critique from young people, and also from some older people who don't like the Constitution for one reason or another.
He gave away too much. He was too soft. He was too nice, a little kind of undermining of the Mandela legacy.
And one reason I'm pleased to discuss Mandela with you is to affirm the strength of the person, the role that he played, the importance in history, the difficulties all the way through, the way we battled to get our new constitution, something South Africa can be proud of, the world can be proud of. The support that we got from the United States was really, really meaningful support.
And the name Mandela appropriately rings in the world as representing the opposite of what I was saying at the beginning, if you like, the beginning of black civilization reaching into the white world, where the prototype of the good human being, the noble human being, the civilized person is not some conqueror from the north, but some freedom fighter from the south, Nelson Mandela.
[APPLAUSE]
SPEAKER: It's customary. Will you [INAUDIBLE]?
ALBIE SACHS: Sure.
SPEAKER: So, thank you very much, Albie Sachs. He's ready to take [INAUDIBLE]. Yes.
AUDIENCE: I've heard that [INAUDIBLE] that many people may not have known, sir, that CIA assisted in Mandela's capture. And what some Americans still may not know, my students certainly don't, is that he was released from the US terrorist list just before George W. Bush left office. [INAUDIBLE] from BBC News or the PBS news. [INAUDIBLE] always says, wow. It says everything.
You were a member of the African National Congress, and so did you run into any problems with traveling to the United States? Were you part of that terrorist list too?
ALBIE SACHS: Sure. Until 1974, I couldn't come here, because I'd been a member of the ANC. End of-- and then-- so then there was some battle in Washington. And the way I put it is on Monday I was a terrorist. On Tuesday I wasn't a terrorist anymore, because the anti-apartheid lobby became just a little bit stronger. And the idea that we should--
And I remember in Mozambique, it would have been in '85, it would have been just after Reagan became president, a guy comes to me from the American Embassy. Now before, they used to have academics working with the State Department. Now they have a risk analyst.
Any event, this guy comes to speak to me and he makes some comments. And then he said-- I'm not going to really try the accent, but-- if the American State Department wishes to speak to the ANC, what have we got to do? I said, it's easy. You've got to open your mouth and allow air to pass over your vocal chords.
I don't know what they thought. They thought they would put out feelers and it would be a big propaganda thing. The Americans want to speak to us. We're not going to speak to those imperialists. We were demanding the right to speak. It was quite different from the way it was understood.
So putting the paper in my sock was one non-glorious moment in my life. And advising the risk analyst to tell-- what was the name of the State Department guy?
AUDIENCE: [INAUDIBLE]
ALBIE SACHS: No, it was after Crocker.
AUDIENCE: Chester Crocker.
ALBIE SACHS: No, it was after Chester Crocker.
AUDIENCE: [INAUDIBLE]
ALBIE SACHS: He was actually much more open. The beginnings began, you know, of some kind of connection in that way.
And it was important for us not to take a kind of Cold War, simplistic position, to simply say, the American people are our friends, but the administration's our enemy. If you call them the enemy and you make them the enemy, then you don't give them any chance to have internal debates. And in the end, the anti-apartheid act-- what was it called-- passed by Congress, the Chase Manhattan Bank refusing to roll over loans, that was the tipping point in South Africa. It wasn't the cause of change. The cause of change was the huge resistance internally, the boycott internationally, the isolation, and the fact they never got any credible senior black people to collaborate with them.
You know, this word "collaborate," the word "collaborator" was the worst word we could use. But now I'm running a trust and I want people to collaborate with us. And I still have difficulty saying, we've got to collaborate together.
But they couldn't find collaborators. Another term we used was "quisling," used very strongly in South Africa after Quisling who collaborated with the Nazis. They couldn't find quislings of any significance. That was the real reason. But the international pressure when in the end, they found even our best friends in Washington can't defend us anymore, then they started thinking about, how can we start talking?
SPEAKER: So any other questions?
AUDIENCE: You want to tell the handkerchief story?
ALBIE SACHS: [LAUGHTER]
SPEAKER: What's that?
ALBIE SACHS: The handkerchief story. OK.
SPEAKER: What's the question?
AUDIENCE: The request was to tell the handkerchief story.
ALBIE SACHS: I really want Sandile Ngcobo, my colleague, to tell that story. But since you aren't law students, most of you, and you won't be doing his course, OK.
We're in a temporary courtroom. It's a tiny space, flat, low ceiling, jampacked with people wearing t-shirts saying HIV-positive. And we are about to deliver a decision in the Treatment Action Campaign case that's making the drug nevirapine available to women about to give birth, cutting the transmission of the virus by about 50%. The government and Thabo Mbeki, very reluctant to spend money on anti-retrovirals, not believing in anti-retrovirals.
The courts came to pronounce on this important issue. And we are about to go into court. And Sandile says, Albie, would you like my handkerchief? And I say, no, Sandile, I'm OK today.
And the story is a few months earlier in the case of Mr. Hoffmann who had applied for a job on South African Airways as a steward, he passed all the tests with flying colors. But it turned out he was HIV-positive. They said, we'll employ you as grounds staff. He said, no. My vocation is to pour coffee. I want to fly.
And they said no. He went to the high court. He lost, came on appeal to us. And we unanimously said, this is discrimination based on his medical status, not on his incapacity to work, based on the fact that there is public prejudice against people living with HIV. And the duty of this parastatal airline is to combat prejudice, not to concede to prejudice. And the right to work is so fundamental to human dignity, not just to earn a living. And we ordered that he be taken on as employed from the moment of his application.
And the court had been packed with people wearing these t-shirts. And dead silence. And we went out. We went to the back. And just after the last one of us had left the court, we hear cheering. And I started crying.
I was crying to think, phew, I'm a judge. We are upholding fundamental rights. We hadn't even thought of this when we drafted the Constitution, this particular situation. It was just overwhelming what we can do with law.
And I told the story at Harvard, where Sandile had done a master's degree. And somebody at Harvard sent him an email or phoned him and said, you made Albie cry. It wasn't quite like that. So now he's offering me a handkerchief. And I'm saying it's not necessary.
And we go in and it's the same people, black, white, brown, young, old, HIV-positive. Arthur Chaskalson reads the summary of our decision, saying that the right to health, progressive realization, reasonable steps have to be taken by the government to make health available. It's unreasonable to limit the provision of the anti-retroviral to two sites only in the nine provinces, when it's being provided free, it's safe, and the doctors want it and the women want it.
Dead silence. We move out. The last one is through the curtain. The cheering starts again. And I cried again. That's the handkerchief story.
SPEAKER: So I think we should conclude here, so please join me in thanking our guest.
A.D. White Professor-at-Large Albie Sachs reflects on his role as an activist and his struggles for justice in South Africa in support of Mandela's movement to dismantle the legacy of apartheid and institutional racism while promoting racial reconciliation. Sachs served for 15 years as a Justice of the Constitutional Court of South Africa. He is the recipient of the inaugural Tang Prize for Rule of Law. Recorded Sept. 9, 2015
