It was a grey drizzly day in Dublin - nothing unusual about that. I was in Kader and Louise Asmal’s house - nothing special about that. Kader didn’t smoke indoors the whole weekend - that was unusual. On Friday evening, the whole of Saturday, Saturday evening and most of Sunday, Kader and I worked on the first draft of the Bill of Rights for a democratic South Africa to be proposed by the Constitutional Committee of the African National Congress (ANC) - that was unique. It was on a kitchen table in a Dublin suburb that that draft was written. I wish I could say it was because of the great tradition of Irish freedom that we felt there was no other place in the world it could be done. The reality was that the Constitutional Committee had nominated Kader and me to do it and we had to come together either in London or in Dublin and because Kader couldn’t get away I came to Dublin. We were aware at the time of the momentous nature of what we were doing.

We divided the work. As I recollect, Kader did the first draft of some areas of special interest to him - the enforcement mechanisms and how the Bill of Rights would fit into the African constitutional structure. I dealt with the broad basic principles of a Bill of Rights. I can recall deliberately sitting down with a blank sheet of paper - no universal declaration, no international conventions, no constitution from any country - on the basis that a Bill of Rights should speak out from the soul the fundamental rights that belong to every human being and shouldn’t be a list of items gleaned from an encyclopaedia or legal dictionary or textbook

In the South African context the right to equality had to be number one. Because of the gross political deformation and the oppression caused by apartheid, which institutionalised the granting of privileges to one section of the population and expressly denied them to the great majority, equality was bound to be paramount; and then, too, the right to life, the right to dignity, the right to education ... and so I jotted down all these rights that I felt belonged to human beings tout court. Kader wrote down his list of rights and we put the two together. Afterwards we checked our list against the Universal Declaration of Human Rights and the great international conventions sometimes referred to collectively as the Charter of Rights, and they were there.

Sometimes our language could be improved upon. Sometimes there was a nuance missing, but basically the fundamental themes articulated themselves through us. I am sure the language and the style was influenced by the fact that both of us had been lawyers and teachers of international law and concerned with human rights questions for decades. You internalise so that the language of your professional concerns becomes almost second nature to you. But that affects formulation, it doesn’t affect substance. In any event it was here, as I said, on a kitchen table in Dublin that that first draft appeared, partly in my childish handwriting - I wrote with my left hand quite as badly as I used to write with my lost right - and partly in Kader’s tiny little heavy ink script that only Louise could decipher.

O.R.

We were fulfilling a mandate given to us by O.R., as we called him - Oliver Reginald Tambo, acting President of the ANC. He insisted always that he was acting President. For decades he had said we must wait to appoint a President until we could hold a conference of the organisation in a free South Africa with delegates from the whole country. As acting President his job was to protest internationally against apartheid, to gather support for the anti-apartheid cause, and, after the blows of the Rivonia arrests, the destruction of the organisation, and the outlawing of serious anti-apartheid political activity in the country, to regroup those who had managed to escape and fashion them into a cohesive command structure that could articulate policy, explain our position to the world and give leadership to those still inside who were unable to communicate with each other.

By the middle 1980s it had become clear to him and to the rest of the ANC leadership that negotiations were in the air. The stress of internal resistance and external pressures through boycotts and other such mechanisms had created a situation in which the then South African government could no longer see any future for itself. As the Foreign Minister Pik Botha said, the hole got too big. The reasons were pragmatic: they couldn’t get any major partner from the black community to go along with them and so they could not assert legitimacy for the various new structures and policies they had concocted. At the same time they had not been physically defeated. They held the reins of government, controlled the armed forces, commanded a powerful administration and, however much they had been debilitated and weakened, were still a formidable power. Moreover, as far as people of the Tambo generation were concerned, they - the enemy - the people trying to kill us - were at the same time part of our nation. They were South Africans. They were rooted in the same soil as us. Above all, they had no other country to which they could go. Some mechanism had to be found to enable us all to live together as equals in the same country - the system of apartheid had to be destroyed but not in such a way as to destroy the economy, the administration, the infrastructure and the possibility of black and white living together in peace with dignity in the same country. I heard Oliver Tambo say that many times. He believed it deeply. Since the government as it then existed was losing control and the liberation forces hadn’t gained control, though they were strengthening their position, the objective conditions for negotiations existed. Talks nearly came about when the Eminent Persons Group of the Commonwealth went to South Africa in 1986 to try and bring the parties together. But the securocrats were too powerful and sabotage set everything back by some years.

This was perhaps the most critical time in O.R.’s life. If negotiations got off to a bad start and if they failed, the results could have been disastrous for the whole nation. He had to ensure they were established on secure foundations. There was enormous international pressure on him to accept any offer that came from Pretoria. He resisted it. There was pressure through various African states, the United Nations, and from a country not very far from Ireland with whom you have had difficulties every now and then in the past - enormous pressure: ‘Trust Pretoria! Settle with them! Go in with them - they’ve got good plans!’ He resisted that. There was pressure from other people inside his own organisation for what people called ‘the seizure of power’. (People love that word seizure.The seizure of power! You just have to say it to feel the thrill.) He had to find the balance that would avoid suppressing the militancy of millions of people and their willingness to sacrifice and die while discouraging a kind of radicalism that would defeat the objectives of the whole struggle. He had also to resist the intense pressure, often from friends, to give in and negotiate not on a basis of equality but from a subordinate position.

I had accepted with delight the request from him through the Constitutional Committee to work with Kader Asmal on the Bill of Rights. Who wouldn’t? What lawyer in the world wouldn’t jump at the chance of helping to write the first draft of a Bill of Rights for his or her country? It comes to few of us in a life-time or in a century, and it so happened that Kader and I were blessed in that way by history. Although there were painful moments, our overall feeling was one of quite extraordinary delight.

A most  important project

I had worked previously with O.R. on what was perhaps an even more important project. He phoned me up one day when I was working in the Ministry of Justice in Mozambique and in that very delicate polite way he had he enquired after my health and talked of the weather and of how things were going in Mozambique, and then said he just wondered if it would be possible for me to take time off from my work - he would speak to the President of Mozambique if necessary - and come up to Lusaka because there was quite an important matter he would like to discuss with me. Now the middle functionaries of the ANC would simply say, ‘Comrade Albie, you have to be in Lusaka by next Monday to prepare a paper of twenty pages for someone who is going to a conference in Geneva’, but the President of the organisation would say, ‘Hello Albie! How are things going? It’s O.R. here’, and very delicately he would say, ‘I know your work is important, but if it were possible for you to come it would really be very helpful’. Of course the net result was you ignored the command and just came running at the request.

I was wondering what he wanted. I arrived in his office and again it was the courteous African way. One would want to say, ‘Please, get on with it! What’s it all about?’ But no. ‘How are you? How are things in Mozambique? Did you have a good journey?’ until eventually he discloses that conditions have arisen which make it necessary for us to have what he called a code of conduct governing the behaviour of members of the ANC in exile. He said some problems had arisen. ‘We find we haven’t got any rules and regulations. We’ve just got a constitution that was drafted in 1958 in conditions of legal normality that deals with the annual conference and how delegates are elected and provincial leaders, and all the rest. It says nothing about regulating the affairs of people living in a community in exile - almost a state within a state - in the different African countries where we are’. At that stage some of these ANC members were carrying guns, others were involved in education, others were farming; entire communities were without any internal system of laws. ‘Is it possible to deal with this?’, he asked, and with the confidence that my generation had - and has - I said, ‘Of course it is possible!’ He said somebody else had been asked to draft the code and had written something filled with technical stuff about the difference between misdemeanours and offences, and had laid down a kind of procedure totally out of keeping with what was feasible in the conditions of the time. He said that in particular there were problems in connection with the treatment of persons held in custody by the ANC security. We knew that Pretoria was sending scores of people to kill us - and I mean that. I just have to stand here and you can see it was not paranoia. They tried to kill us and in some cases they succeeded and in others they didn’t. The organisation had to have security, but there was no control over the security. There was simply reliance on the conscience of the individual - not an infallible source of justice. To make matters worse, two contrary perspectives obtained in the organisation at the time. The one regarded our struggle as a revolutionary one: in the course of a revolutionary struggle you have to be tough because the enemy is tough, you have to be ruthless because they are ruthless, and it is almost the sign of a good revolutionary to be somebody who crushes the enemy. The other regarded us as fighting for freedom with a liberation organisation: the spirit of freedom and respect for human beings therefore must reign in our ranks, for if it doesn’t what’s it all about? Now none of this was articulated expressly to me - I was just told there were some problems, in that very quiet way that O.R. had. So I said, ‘Oh, when it comes to the treatment of prisoners, it is very easy. There are international instruments and it is universally accepted you can’t use torture or cruel inhuman degrading punishment or treatment’. He said to me, ‘We do use torture’. It was one of the most shocking moments of my life. The President of the organisation that I loved, a person whom I loved, telling me that that organisation was using torture; and he said it so quietly but with anguish, maybe waiting, as I now think, to see if I was going to say, ‘Well, in a revolutionary struggle if the enemy uses torture the other side can use torture’ and that where captives have information that can save the lives of the leadership and lead to the liberation of the country he thought maybe I would say, ‘Well, then it is permissible’, and I think he was intensely relieved both when he saw the shock on my face and when I grasped that my task under his leadership was to help design a code of conduct that would establish criteria, processes, and structures and provide in effect a legal code for an organisation in exile. As far as I know we were the only movement of its kind that did that.

It was important not to create an internal offence out of political opposition. Political differences have to be debated and argued through. People who annoy you and don’t turn up at meetings or come drunk, or whatever - they are not to be dealt with other than through the ordinary branch meetings. Freedom of speech in the organisation had to be protected. There was another whole class of cases - stabbings, physical and sexual assaults, stealing money, driving under the influence of liquor - which happened to be committed by ANC people and which the local authorities often didn’t want to prosecute. They would say, ‘You attend to that’. So we had to establish mechanisms for dealing with those kinds of cases. We also had a group of cases called grave offences against the organisation. These were the offences of the people sent in to eliminate the leadership physically. We had to classify the different kinds of such offences and establish a tribunal with a prosecutor to present the evidence and a defender to rebut it and assert the rights of the accused, including the right of appeal. We did all that, under O.R.’s guidance and leadership; and his way of promulgating something like that wasn’t simply to say that I, the President, hereby proclaim and announce this set of laws. No, it had to be passed by a conference of the organisation. The Kabwe Conference
held in 1985 had as one of its main tasks the ratification of the code. There we were meeting in Zambia with Zambian troops around us, protecting us with anti-aircraft guns while we were discussing the code. For O.R. saw that such a code can work only if the whole membership feels it is theirs and consequently he left it to the membership to decide on it. If it were imposed by a command from the President, people could say it is easy for O.R. - he’s a lawyer, he’s soft, he’s not a real militant, he’s not a real revolutionary. If the conference adopted it, which they did overwhelmingly, including its strong protections for persons held as suspects for being spies and assassins inside the organisation, then it would have an authority and legitimacy it wouldn’t otherwise have.

A certain style

In 1988, as I lay in a hospital in London recovering from the bomb that was put in my car by South African Military Intelligence, I received a little handwritten note: ‘Dear Albie, Hope you’re recovering well. We’re all proud of you’. It was signed, ‘O.R.’. The style of our leaders could have been completely different. They could have been self-important, bossy, ostentatious. But no. Already Albert Luthuli had established a different style, an ecumenical style, if you like, bringing everybody in, listening to everybody. The acting President was almost like the speaker in a house of parliament - the parliament of the people - giving everybody a chance to be heard and working for a consensus rather than holding sway as the powerful dynamic leader who is going to inspire the nation and storm the barricades. We loved referring to him as ‘O.R.’. There was an intimacy involved which he invited us to share. It wasn’t disrespectful to speak about ‘O.R.’. Indeed, it became the highest accolade you could get in the ANC to be referred to simply by your inititals. Thus we had JS (Jo Slovo), JM (Joe Modise) and JN (Jo Nklakha).

Negotiations

The stroke that O.R. suffered prevented him from directing the final processes of the negotiations. That period - 1985 to 1989 - was a period of talks about talks about talks about talks about talks. It was a long way off from actual negotiations. We had to talk about simply getting round a table together to talk about the conditions necessary for negotiations to start, and then once those had been established, we had to talk about the process for negotiation before we actually got to the negotiations. Nineteen-ninety was the year of talks about creating conditions to get to the process for having negotiations. Basically it involved, on the side of the then government, agreeing to release political prisoners, to let the exiles come home, and to allow free political activity in the country and, on the part of the ANC, an agreement to a cease-fire. That created the conditions for talks about talks. Most of 1991 was spent in arguing about the process of negotiations - who would be there, how would decisions be made, and how would the negotiations be structured. At the end of that year, we had our first meeting, called the Convention for a Democratic South African Constitution, on the basis of the agreement already reached. I describe this in some detail because we have seen similar processes in relation to Northern Ireland. The fact that they are prolonged and difficult and break down at times shouldn’t lead people to despair. Our process was a very long one and also broke down. Once the actual negotiations had started we had two severe crises. After some months there was a head-on clash between a bloc led by the then South African government and a bloc led by the ANC. It was over two things. The bloc led by the then government said that because they were a minority they couldn’t hand over the negotiation process to a democratically elected body because they would simply be out-voted. They wanted to draft the constitution first and then put it to a referendum. The ANC bloc objected that what had obtained in South Africa until then was the complete exclusion of the majority of the population from the process of deciding the nature and the fate of their country and that a new constitution would only have legitimacy if it emerged from a constitutional assembly elected in one-person-one-vote elections on a non-racial franchise with, for the first time, all South Africans feeling equal in the land of their birth. We also felt there needed to be a historic sense of popular participation. For if you can make a constitution by doing a deal around a table, you can unmake it by doing another deal around a table; such a constitution couldn’t have deep roots in a society. People wouldn’t rise to defend it, because they weren’t involved in its creation. We believed that the people should not simply wait for the negotiators to decide everything but should have a sense of involvement at all stages.

The other breakdown was over the concept of the new government. Basically the then South African government wanted a rotating three-headed presidency - we used to joke about Mandela on Monday, de Klerk on Tuesday, Buthelezi on Wednesday - which selected a cabinet that would rule by consensus and that featured an Upper House to represent what were called the minority parties and which would have an equal say to that of the lower house - in other words would be able to neutralise the results of popular elections. We called it the ‘House of Losers’. It was a tough battle and we used sarcastic language because we felt that unless we had a clear modern constitution informed by universally accepted principles it would not work. People would feel cheated. People who had been excluded from the franchise for decades would feel there was something spurious about the whole thing. The constitution had to be as clear and as manifestly democratic as possible.

On the other hand the government and the other minorities had a point. If they simply handed over decisions on the constitution to a democratically elected body, they might end up with nothing and indeed be exposed to new forms of oppression - in the same way that they had oppressed others - for, as they kept telling us, it was only human nature to do unto others what they did unto you; and they predicted every kind of violence and dispossession, although this was contrary to everything Mandela and Tambo and all the others had stood for and fought for all their lives. The compromise that solved that problem was to agree to have a general election for a new parliament that would pass laws in the ordinary way subject to an agreed Bill of Rights protecting individual and community rights, that would choose the President, and that, acting as a constitutional assembly, would draft a new constitution by a two-thirds majority, thus ensuring that no one party could do it on its own, and in accordance with certain principles agreed in advance. We finally ended up with thirty-four such principles that were binding on the constitutional assembly.

None of this could have been predicted. It emerged in the course of the process of reconciling the real preoccupations and fears and the concerns and demands of both sides. The change could come only when each side regarded the other as compatriots, and acknowledged that they had tried to kill each other and that now, whether they loved each other or not, they accepted that the path of violence was going to destroy the country and that they would have to live together in the same country afterwards and that therefore neither side could be victors or losers. Everybody would have to feel they had gained. The majority of the oppressed people must feel that they had gained their freedom, their dignity, their rights. The minority - the former oppressors - must feel that they had gained security and a continuation of the rights that they had enjoyed exclusively (but that could no longer be enjoyed exclusively). It would be the task of the constitutional lawyers, the philosophers, the theologians and the other thinkers to find the ways and means of making the necessary accommodation.

The second crisis was provoked by the assassination of Chris Hani, a great South African leader who had been a very active guerrilla. You in Ireland have your patriots from 1916 on. Chris Hani would have had that same kind of stature. He brought a glow of pride to everybody because he stood up to the forces of oppression. He was a thoughtful and cultured man - he loved to quote Shakespeare - and he had a wonderful sense of humour. He had already escaped three or four different assassination attempts when he was murdered. Right-wing extremists had been captured and charged. There was terrible tension in the country and the centre could hardly hold. President de Klerk had to call upon Mandela, who had no official status, to broadcast on television calling for calm and it was really Mandela who emerged as the President of South Africa long before elections because only he could hold the country together at that stage. The solution to the crisis was to fix a date for elections so as to assure the oppressed people that negotiations wouldn’t go on forever. The date of 27 April 1994 was fixed. That put the pressure of a deadline on the negotiators and gave a sense of reality to the whole process.

Lessons

Of the lessons we learned in South Africa I would put this first: you can’t go to someone else’s country and tell them how to settle their problems. It is not only that it creates resentment: you just don’t get it right, it’s got to come from inside. We resented it when people came from other countries and said, ‘Why don’t you do this? Why don’t you do that?’, and tried to knock our heads together. What we did find useful was to look at other countries and to take constitutional mechanisms from them. We took from Canada many of the details of the Charter of Rights; from Germany we took many of the arrangements for the federal power, for the powers of the Länder and for the Constitutional Court. We didn’t take very much from the UK because they don’t have a written constitution. We took something from the Indian constitution which was created in difficult circumstances in a highly pluralistic society, and we took much from Namibia, which had managed successfully to bring people together through a new constitution. But we didn’t allow Namibians or Germans or Canadians or anybody else to come and tell us how to do it. For that reason it is with diffidence that I mention what I think were the key factors in our situation that led to our having today a state and a constitution.

The first factor is an acknowledgment by the combatants and all interested parties that things had reached such a desperate stage that there was no other way out. In a strange way the worse the situation the better the chance you have of getting a constitution. I have just come from Canada where the whole constitution-making process has actually riven the nation rather than united it, and it’s partly because there isn’t a sense of desperation, a sense of catastrophe being the alternative. In our case our country simply wouldn’t have survived - it was either sink or swim together; and that realisation must be there, if not amongst everybody, at least amongst the core leadership of the different groups.

The second is the more subjective process of what I call looking into each other’s eyes. There’s only one way to look into someone’s eyes. You’ve got to open your eyes and they’ve got to sit across the table from you with their eyes open. You’ve got to see human beings there. One can track the process of our developing understanding in the shift in our vocabulary from ‘the enemy’, to ‘the regime’, to ‘the government’ - I still have difficulty not saying ‘the bloody government’, to ‘the other side’. When we looked into the eyes of the other side we saw they were South Africans, they were going to continue living in the same country as us, they had schools and know-how in terms of running the railways, keeping the electricity supply going, managing water supplies and farming - all things we needed. It wasn’t just a question of being nice and benevolent. We all needed the skills that they had locked up and kept locked largely to themselves. In addition, there was that uplifting aim of proving to them and to the world that we could live together as equals, that the whole apartheid idea was a cruel and unnecessary imposition on our society. We needed to prove that it was possible not simply because our guns were heavier than theirs and that having crushed them we were now going to give them some scope to do things, but because they were our fellow-citizens and we could live together in the one country. Running right through the life and writings of Albert Luthuli, through the speeches of Oliver Tambo and of Nelson Mandela you’ll see that theme.

You don’t negotiate with your friends, you negotiate with your enemies. That’s the whole point of negotiations. Sitting down at a table with the opposition, the other side, your enemies, the regime - call them what you like - follows on from the acceptance of the need to negotiate. That’s not a compromise. It’s part of achieving what you set out to achieve and applies to both sides. The process has to evolve. You have to find ways and means of dealing with representation and decision-making. You have to create a whole network of channels, formal and informal, using people who have proved their reliability, their capacity to be confidential when it’s necessary and who are in sympathy with the negotiating process - it’s no good asking someone to negotiate who is actually against the whole idea. We worked out a very interesting decision-making process that we called ‘sufficient consensus’. It didn’t work by a majority of any fixed number for in that case all the small parties would have been able to auction themselves off thus creating horse-trading of the worst kind. Sufficient consensus didn’t mean absolute consensus - it meant sufficient consensus for the process to move forward. It meant the principal parties to the conflict that had led to the breakdown of our society had to agree.

The third factor was confidence-building measures on a step-by-step basis. Each step forward in negotiations had to be associated with or accompanied by something that removed distrust just that little bit and increased confidence in the process and in the possibilities of achieving a negotiated result. For example, when political prisoners were released that was a confidence- building measure by the then government and the ANC responded eventually by ordering a cease-fire. On the other hand, when the then South African government demanded that the ANC guerrillas hand over their arms, it almost destroyed the whole peace process because the guerrillas were willing to go along with negotiations if that was what the leaders wanted but not if they were disarmed. Their greatest fear was that they would render themselves impotent. If they were to disarm and if eventually negotiations were to break down, it would be evident that the sole purpose of negotiations was to get them to hand over their arms and destroy their fighting capacity. So they were not willing to do that, and if the ANC political leadership had insisted on the handing over of arms, I suspect the whole process would have foundered. If the then South African government insisted on it as a precondition, it would have been seen as a sign of bad faith on their part because, if they had looked into the eyes of the people on the other side, they would have understood that the giving up of arms has to be done on a step-by-step basis and that as you get closer to a final accommodation on the broad political questions the capacity of the military wing to fight and to use arms can be reduced; and indeed that was the compromise that was worked out in the end.

First, there was a complete refusal to hand over the arms at all, then as the negotiations advanced, the arms were put in caches but the guerillas kept control, and finally towards the end there was joint control of the arms by the South African military and the ANC military because the two military forces were now beginning to integrate as well. And so arms decommissioning didn’t become a critical issue that scuppered the whole process. I’m not saying that that’s the way it has to be done elsewhere. I’m just saying that it was a very important issue that could have subverted the whole process. It was critically important to understand the psychology of the armed militants, who are suspicious about negotiating at all, and who are scared there will be a sell-out. If you told them to give up their arms when the then South African government wasn’t giving
up its arms, they would have said, ‘Nothing doing - we’re against negotiations’.

An interesting thing was the beginning of joint activities by both sides. It happened at our very first meeting when the then South African government said they would provide security and finances: ‘We’ll make sure everybody is safe and the money is properly attended to. We’ll even look after the food and the typing’. The ANC said, ‘No. You’re behaving like a government in control of the situation - that’s the whole issue. It’s one of sovereignity, it’s a question of who calls the shots in our country’. So we entered the conference centre two by two - shades of Noah’s Ark - one government security, one ANC security, one, I wouldn’t say one government cook, one ANC cook, but a joint agreement on who would do the catering; administration was one government administrator, one ANC administrator; even the accounting had to be handled jointly. The psychological impact of this was enormous. It forced the government people to look upon the ANC as a future government, not simply as some kind of outlawed organisation. It forced the ANC people to start speaking to, and learning to associate with, and I wouldn’t say laugh at the jokes of, but at least have some intimacy with, people with whom they had to share the task of protecting the leaders of both sides. I don’t think the phenomenon has been written up at all - indeed I think it has hardly been mentioned - but it was extremely significant and I think it’s something that might be considered in other negotiating situations. It makes you feel you’re participating in a way that wouldn’t apply otherwise and it also brings in many people who are not lawyers - important because everybody is sceptical about lawyers. Lawyers are too tricky and too cunning and you never know what they’ll slip past you! Because security people, administrators and others were now part of the process, when they got back to the branches and into the community they talked about it and in so doing conveyed to other people a sense of common ownership.

It’s extremely important for the negotiators to consult their membership and the communities backing them. There are times when you have to make little leaps forward independently. Moreover, confidentiality on some issues is crucial to negotiations. But it’s different from secret negotiations. Secret negotiations in principle are bad. People must know you’re negotiating. They mustn’t feel something funny is being cooked up. But they mustn’t necessarily know everything that is being negotiated. Sometimes things have to wait, and that is all right provided that in due course there is consultation. If you can’t carry at least the bulk or the core of your membership with you, the process just won’t succeed. Often, we found that the newspapers would put a spin on what had been agreed at the negotiations and the membership would be furious: ‘ANC MAKES CONCESSIONS’, ‘ANC GIVES IN’. Well, that was being done to strengthen the position of de Klerk vis-à-vis the white voters. The membership would respond, ‘No, we’re going to fight on!’ or ‘We are going back to the bush!’ or ‘No more negotiations!’ Then we would actually go back to them. We held conferences almost every week explaining, explaining, explaining to delegates representing the branches: ‘These were the options’, ‘That’s why we chose this’. Once people understand, they feel part of the process, they know how to interpret what’s in the press, and they will support you because they know you’re not trying to be smart or pursuing a secret agenda.

Finally, it was vital for us to understand the meaning of consensus. Consensus means that you’ve agreed sufficiently to make the project worthwhile. There is enough agreement on core elements but nobody is completely happy. If everybody is happy, you have unanimity. That’s a different concept altogether. You don’t go into negotiations with a view to getting a hundred percent of what you want. You’ve just got to ensure that there are no complete losers and that you gain the things that are most important to you in practical terms.

It took us a long time to achieve that understanding. People like O.R. were by nature and temperament inclined towards such consensus. Others on both sides were suspicious, truculent and difficult. Some of us would always see an opportunity in a proposal and others would always see a trap. I was criticised for suggesting that it was possible you could have different currents in the ANC and that there wasn’t unanimity on all issues. I said you have to look at every issue from both sides: what can be gained and what can be lost. You have to be skilful because the other side is going to be skilful.

Bill of Rights and a divided society

I want to conclude with some thoughts on the role that a Bill of Rights plays in a divided society. O.R. supported a Bill of Rights from the beginning when others were saying the only function of a Bill of Rights was to prevent the African majority from using parliament to get back what had been taken from them by all the apartheid laws. He had a much deeper vision. He realised of course that one had to support a Bill of Rights for diplomatic reasons - you lose friends if you are a freedom-fighting organisation that opposes a Bill of Rights. But there was a powerful strategic reason. The argument was always being made that there must be special representation of whites in parliament and in the government with powers of veto. The answer to that was to say if you fear you will be oppressed, that your rights will be taken away, that you’ll be pushed off your land and forced to carry a pass, that you won’t be allowed to leave the country, that you will have to live in a racial area - all the things that apartheid did - these fears can all be dealt with through a Bill of Rights that protects the rights of individuals, of individuals acting in association with others, and of communities. We can build in language, religious and cultural rights. And these can be asserted through a system of government structured on a non-racial basis. In our circumstances we couldn’t have had a country with anything less. The concept of such a Bill of Rights had a powerful strategic value in opposing all the constitutional devices being offered by the government and being picked up and commended by many foreign governments, including the UK government, at that stage. Such oddball constitutional mechanisms would have ruined our country and prevented everything that has emerged in the last couple of years from happening.

There was a third reason. I can recall speaking at a Delegates’ Conference - in 1987, I think it was - about why we needed a Bill of Rights and my heart was pounding as I came to this point. I didn’t know how it would go down although I was determined to say it amongst our membership. I said there are many countries that have supported our struggle, that have undergone freedom struggles themselves, that have achieved liberation and that have gone on afterwards to oppress their own people and to deny them fundamental rights. (We were in one of those countries. There wasn’t violent oppression in Zambia but there was one-person-one-party rule and there weren’t the freedoms that people are entitled to.) Happily, there was agreement on the point evident in the eyes of everybody - indeed, there was palpable relief that at last somebody had said it. You can’t just go along with revolutionary slogans and assume that everything will be tolerable because you’ll have what the British call ‘good chaps’ in charge, or you’ve got good traditions, or you’ve been freedom-fighters. You need a constitutional framework to provide those guarantees. Oliver Tambo was convinced of that, the ANC constitutional committee was convinced, and it was immediately clear that the whole membership was also convinced - and that they felt much more secure knowing that there wouldn’t be some new kind of authoritarian rule that would get rid of apartheid and substitute a new form of domination for the old.

A continuing influence

The spirit of Oliver Tambo influences me deeply now in my work as a judge. As I sit on the Constitutional Court dealing with issues of grave moment for the country, for individuals, and for communities, I don’t say to myself, ‘How would O.R. answer this question?’ because he wasn’t one to give quick answers. Rather I try to imagine how he characteristically would go about engaging an issue, bringing everybody in, listening to everybody, and, if he were acting as a lawyer, hearing all sides, trying to find the balanced and not the quick answer, not imposing himself but listening and responding to the inner workings of the situation itself in order to get a just result. To the extent that I can continue in that tradition I feel I’m doing my job, I’m fulfilling my oath as a judge, I am showing my respect for our country’s first new democratic constitution that guarantees fundamental rights and that creates a certain continuity in our lives, from fighting against oppression to creating the terms of the new constitution to actually seeing how the new constitution works out in practice. I see it as the fulfilment of O.R.’s dream. I would like to think that the way we go about applying the constitution in the interest of all our people embodies a continuation of the style he gave to a whole movement.
 

Following his lecture, Justice Sachs took a number of questions from the floor:
 
 

Q. Did the fall of communism in 1989 expedite negotiations?

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