The pursuit of justice

Listen to Albie talking to Mpogi about his Sussex experience and what the future holds for South Africa in this exclusive Falmer podcast

• Audio transcript

  UoS Podcast Albie Sachs x Mpogi Mafoko Transcript

  INTRO: The pursuit of justice

  In this first podcast for Falmer magazine, Sussex alumnus and human rights champion Albie Sachs talks to recent graduate and Mandela Scholar Mpogi Mafoko about his Sussex experience, his pursuit of justice, and what the future holds for their home country of South Africa. They are joined by fellow Sussex alumnus Rob Yates from the Development and Alumni Relations Office. Justice Albie Sachs is a lawyer, activist, writer and former judge appointed to the first Constitutional Court of South Africa by Nelson Mandela.

  MPOGI: I just want to say I'm so incredibly excited to be doing this interview with you Albie, because I’m not sure if you remember but I think it was about 2015, you came to my high school, in Durban North, to hold an assembly. And we just had the best assembly. And I remember just being so awestruck and being like, oh, my gosh, like what I would give to have a conversation with this man. And now just under a decade later, I'm doing that. So, I’m really happy to be here. I wanted to kind of move a little bit to your time at Sussex and just kind of ask you, what memories from Sussex kind of remain strong in your mind? How did your experience at Sussex impact you and kind of shape your experience in drafting the constitution?

  So, what did you take from Sussex as a university?

  ALBIE: I'm a Sussex-o-phile. I love Sussex because it didn't interfere with me at all. It allowed me to go on and go ahead and write my PhD in my own style, my own language and so on. In purely pedagogical terms, I gained two hugely valuable things. The one was seminars. I was able to take each chapter of my thesis to a seminar and get wonderful critiques from people.

  Some were lawyers, mostly African historians, some political scientists. So I got the value of direct critiquing of my work. My supervisor at Sussex was Colonel G.I.A.D Draper. I got marvellous stories from him, in his years as a prosecutor at Nuremberg. He didn't read a single word as I brought him chapter by chapter, I saw that pile getting bigger and bigger. He gave me one piece of advice: “Mr. Sachs”, he always called me Mr. Sachs, you call me Albie, he called me Mr. Sachs, he said: “I'm offering you one piece of advice. A good thesis makes a bad book

  and a good book makes a bad thesis. Write a good thesis.” And I said, “Yes, Colonel.” And I disobeyed him completely. From the beginning I couldn't see why a thesis should be boring

  and unreadable and not make a good readable book. And, conversely, I shouldn’t see why a book shouldn't be scientific. So, the only advice I got I disagreed with. It was an okay thesis, and it has been published as a book, and nothing went wrong at Sussex for me – and lots went right.

  I liked the physical layout, I liked the architecture, and all of these things somehow went together in the late 1960s, and they corresponded to a cultural movement in England that was better known through the satire in London, Carnaby Street, in terms of the dress and a whole range of London based things, Private Eye, the magazine, coming out, the irreverence. With less of the edginess, with less of the sharpness. Sussex was in that sense, friendlier, more amiable, and it really suited what I wanted to do. They said: “Look Albie you’re 31” or whatever it is, “you've had all this experience, you know more about these things than we do. We see you're on the right track, go ahead and do it.”

  I attended some great events at Sussex University. What I remember was when Professor E.P. Thompson came to speak, give a public lecture at Sussex. Now he was well known as a very brilliant Marxist historian. He was very popular. He had a terrific presence, a beautiful style of delivery. But his ideas were revolutionary and challenging. And maybe it's the most brilliant lecture I've heard from anyone, anywhere in any country, and happened to be at Sussex University, and Sussex was very responsive to him. He didn't have to work hard. He just had to be himself, at ease with a friendly audience that could capture the story, the humour of it, but also behind the humour, very, very rich thinking and ideas. So that was really what Sussex

  meant to me. A place of great adaptability, lacking the formalism, lacking the inwardness and maybe lacking the factions and tensions that you get in so many other universities.

  MPOGI: I feel like, you know, Sussex hasn’t really changed that much. The seminars, they're just fantastic. And one of the main reasons why I wanted to study abroad is that I wanted to just be in a space with, you know, a whole lot of international students, get all these different

  and varying perspectives. And I feel like I really got that. And I think also it's fantastic that you've acknowledged that they said to you: “Albie, you're probably a lot more knowledgeable than we are on these topics. Come on then.” And I feel that was the exact same way that we were treated as students. Obviously a lecturer might be academically knowledgeable of certain things but does not necessarily have the life experience. And because we all came from varying different backgrounds, they were incredibly happy to say “Okay, you come from this place, you worked in this particular area, would you like to come up and, you know, speak to the class?” and that was the kind of experience that I got and what a fantastic one. I'm really happy to hear that that was one of, you know, your favourite things.

  ALBIE: Hearing you and seeing you, I'm seeing Sussex University and it’s not only for what they gave to you, it's for what they didn't take away from you. As some universities take away spontaneity, and they force their graduates to become super self-conscious and to want to feel they mustn’t make mistakes and to make them feel that they've got to sound clever. And I don't get that feeling from Sussex that they want to train them to sound clever, to train them to suppress this spontaneous, natural way of expressing themselves.

  MPOGI: You know, I think that's 110% true. One of my core modules that I had to take when I first arrived at Sussex was Conflict Security and Development, and that lecturer was a powerhouse. She was like: “We're going to fight the institutions. What do you think? Give me your ideas.” That I think was such a brilliant introduction to Sussex, because I mean, that was what, the first 11 weeks that I was on campus. Obviously, you know, every now and then,

  especially at the beginning when everyone's trying to feel each other out in the seminars,

  you know, they'd be a little bit of a lull in the conversation, and she'd be like “I don't have the answer - you do!” She’d be like “No, don't be quiet. Come! Speak!” From then on, those first 11 weeks kind of make a huge impact on you. And as you move into the other seminars, then you're not afraid to talk. All of a sudden, you're now one of the most talkative people in the class.

  ROB: I listened to the Draper lecture. And one of the things that came across strongly,

  I don't know if you remember it, but you talked about the spirit of Ubuntu, and I just wondered if you could say a little bit more about why you feel, you know, countries like the UK and the US,

  and all other countries would benefit from having that kind of spirit of Ubuntu, and what it would bring to people and perhaps the international system, if we embrace that kind of spirit of Ubuntu.

  ALBIE: Every year when we were struggling for freedom, against oppression, we didn't use the term Ubuntu. The intensity of the solidarity and the commitment to overthrowing apartheid, withstanding all the pressures against us, was just so strong. And yet when that moment came, when that system of apartheid as a system was now brought down, and morally and legally, even if not in practice, in the lives of people in every way, the intense solidarity of the freedom struggle had to change. We got a beautiful constitution. Now we had to learn to do the ordinary things, and we're not so good at the ordinary things. We're better at the impossible than we are at the possible. And we just found that the term “Ubuntu” was now coming very strongly into discussions in all sorts of different areas of life. And it's not a term that belonged to any particular political group or religious group, wasn't attached to a particular faith, which made it very, in that sense, generic, but it opened to finding its place in space. And yet it had for me, and I think for many others, enormous explanatory power of how people could retain their humanity despite all the insults, the disregard, the physical oppression, the mental oppression, marginalisation. Why people who had so little in terms of goods could survive through mutual help and support for each other. And why a core optimism could be retained, all the way through when everything looked so bleak, and leaders in jail, people being hanged, in exile, on the run.

  People breaking down, breaking down under torture and collapsing in all sorts of ways. That kind of core strength of interconnection and positivity wasn't destroyed. I went to thank people from the townships. Sometimes 10 or 20 would come up to my office. My advocate colleagues would laugh, you know, they'd call it an “Albie” consultation. Their consultations were like: “Take me to your leader, let the leader come and speak to me. We’ll sort everything out.” In the ways where I worked with the trade union people, the people from the townships, all suffering from increases in rent, new regulations, they would come and they’d all want to hear.

  Sometimes I'd have to leave the door open so that everybody could attend. And I felt that intense interconnection: they wanted to know from me, “Where did they stand?” They didn't want me to tap them. They didn't want me to say how terrible apartheid was. They knew that; they didn't want me to commiserate with them. They wanted me to be their lawyer explaining their position, situation to them, explaining what the options were and then they would discuss amongst themselves, and I would explain that. So it was very striking to me now as a young lawyer making people who, on average would have had four or five years of school education, but so thoughtful and so good at listening and talking their ways through, not to make a point, not to score, not to emerge as a leader, but through that intense dialog and interconnectedness

  come up with what they thought was the best, fairest solution. So, in a strange way, that spirit of Ubuntu didn't come to me, that spirit of Ubuntu didn't come to me through underground resistance. That was another kind of revolutionary comradeship with a different origin. Ubuntu is not heroic; Ubuntu is not epic. It doesn't belong to that world. Ubuntu is very soft. It's very gentle, it's very inward. Somewhere between spirit and spiritual. It's a mixture of thoughts and emotion and existence and interconnectedness. Now that theme is emerging. It presupposes also people getting on who weren't getting on before. If we're all connected under the skin,

  we used to hear that in revolutionary terms, we all freedom fighters joined together by a common goal, bond and so on. People, often in the faith communities, would say: “Under the skin, we are all creatures of God.” And that provides a kind of commonality, but it's a commonality through the deity. This was now a way of how we could live together in one country. We've been fighting each other. How could we find certain core values that unite us as people? We've been so divided by former apartheid and the racism that was associated with it.

  How can we live with the people who were trying to kill us, who tortured us, who blew me up? So now the term comes into our Constitution. If you like, it's got the transactional value that emerges from its humanitarian dimension. It provides a dignified way of living together in one country, beginning to manifest a common citizenship, not based on a legal pronouncement, but based on this tiny but multiple hidden threads and bonds that as human beings tie us together. So, when it came to the question of how do we deal with the crimes of the past, committed mostly in the name of apartheid, but also violations of human rights committed by us in our liberation struggle against captives using torture that you can't categorise easily. You can't put it into a slot. You can't define it. You could describe it. You can indicate what it's all about, but you're not going to capture it in some kind of neat Oxford English Dictionary definition. And what I loved about Ubuntu was it picked up on the positive dimensions of libertarianism and the positive dimensions of a communitarianism. Ubuntu acknowledged each one of us as an individual, as a person. Ubuntu respects the autonomy, the discrete integrity of each human being. It values each human being as an individual person. But Ubuntu also accepts that we are nurtured by our shared humanity, we’re enriched by it. We don't see it as a deprivation, as a concession, as a defeat to share our humanity. We're not giving up anything. That sense, if you like, of human generosity is enriching for the giver and the receiver and we’re all givers and we are all receivers of generosity. And I found the words that came closest in the legal lexicon to describing Ubuntu was dignity. Human dignity. And so I coined the term “dignitarianism”.

  Dignitarianism combined communitarianism with libertarianism. And your dignity, as a human being, is being assailed if the community or a collective crush you and say “you can't do this, that and the other because you are this, that and the other.” So the collective, the community, can be very oppressive and the community has to recognise your individuality and your autonomy as something that's precious to you, and that's fine. But at the same time, the Libertarians have got to recognise that your freedom becomes more meaningful when it's enriched by contact with the others. Sometimes I would use the term Ubuntu in my actual legal reasoning. But it would underlie so much else of my reasoning because of its richness and a richness that corresponded to the need, in so many ways, to provide remedies that were collective, that were systemic, that dealt with patterns of injustice and unfairness. But at the same time, in a way that was reflective of the fact that the collective always involved individual human beings, particular people, particular families, something like that became very important in eviction law, and the law protecting people against evictions, not to see the poorer being evicted as a mass of poor people for whom there has to be collective administrative responses. But to see them as individual families with different histories, with different solutions being found. Ubuntu for me captures the powerful. It's not just the meek inheriting the Earth, but it's the caring and the tender but it's the caring and the tender and the creative and the resourceful and the imaginative people who, when they are respectful and working together, become immensely powerful, immensely strong, and without using their strength as a kind of fist to hammer others, using their resilience as a trampoline, if you like, to enable people to express themselves in fruitful and sometimes joyous and very, very creative ways.

  MPOGI: So Albie, I just kind of wanted to get your thoughts on the fact that South Africa is, you know, heading into 30 years of democracy. We know for a fact that we didn't achieve all the things that we were meant to achieve in this post-apartheid era. And obviously, that has left a lot of people disillusioned and particularly those who are disenfranchised were black people saying, “you know what, maybe the TRC didn’t go too far.” It didn't go far enough, rather. We needed something a bit more retributive, we needed some sort of real socioeconomic shift. And how do you respond to that then, given the kind of devastation that we're seeing in South Africa today

  and the lack of kind of upward socioeconomic mobility for the poorest of the poor, who were poor in the apartheid era who continue to be poor now and disenfranchised. So how do we respond to that?

  ALBIE: Okay. First of all, the poor, the majority, were disenfranchised before, really disenfranchised. Now you’re using it as a metaphor, but it wasn't a metaphor then. It was a reality. It went with Bantustans, it went with locations, it went with pass laws, migrant labour system, it meant the reserve beaches, all the beautiful things reserved for whites only. It was huge then. We shattered, we destroyed that system. That's immense. And the franchise

  was the centre of our struggle because South Africa was an independent state. So we didn't want a separate state called South Africa, separate from England or France or Belgium or Germany. We wanted to create a single united South Africa out of a very divided country, and we achieved that. That was also huge. We created the franchise, not only to destroy apartheid, but to give people rights to bring about change, to mobilise. And we don't have a fair South Africa today, by any means. Inequality is immense and totally unacceptable. We don’t have a safe South Africa today, it’s far too much violence in the homes, in the streets, in all sorts of different areas. But we do have an open society, a very open society. You can say what you like, and you get back to South Africa and you're not going to be chucked into jail for saying how terrible things are. So, we've gained in that sense, not only the vote to the right to bring about change. We gained a mentality, where people of your generation are angry, upset and demanding more without having to carry that huge burden of apartheid and what it meant. There is a resilience in South Africa now, that's very strong, and we can bring about change without tanks going into the streets. Robert Mugabe fell when tanks went into the street. Without a million people going to the public square, as it happened in Cairo, Tahrir Square at a certain stage. We can do it through democracy, through the votes, and whether it means changing the course, the dynamic, the pulse, the feel, the energy, direction of the governing party, or whether it means having a new kind of coalition or the governing party, the present governing party in coalition or a completely new coalition of parties, whatever it is, we can bring about the changes we want. People ask me: “Albie, You've been through so much. You've seen so much. Is this the country you were fighting for?” I pause for a while. I take a breath and I'll say ”Yes, it is the country I was fighting for, but it's not the society I was fighting for.” And it's not just a play of words. A country is a country with a constitution, with institutions, with civil society, with people

  coming together and expressing themselves. That's the country. The society is the one that you were describing. That's the society we have to change. But we change it not by destroying the country, but by using the country, using our institutions, using the things that we've won and gained, using our consciousness, using our solidarity to bring about change.

  MPOGI: Thank you for that. From my side, I just have one last question. I just wanted to find out

  outside of South Africa, what is the work that you feel most proud of and you feel has had the biggest impact? Or that you’ve enjoyed the most?

  ALBIE: A flash in my head of what I've done in my life in different places, countries. The most important was to produce a code of conduct for the ANC in exile. I was invited by Oliver Tambo to fly from Maputo to Lusaka. He doesn’t say what it’s about. I came to his office, and then he said: “We've got a problem. We've discovered in our camps, that we don't have any regulations dealing with how to treat captive prisoners. There is nothing in the ANC constitution about that.” I say: “Well, there's international law that says no cruel, inhuman, degrading punishments or treatment, no torture.” He says: “We use torture.” I can’t believe it. We're fighting for freedom and we use torture. Anyway, he asked me to prepare a code of conduct for the ANC living in exile. Not to deal not only with enemy agents sent to kill us and blow us up and so on, but to deal with members of the organisation who use knives against other members, impose themselves sexually, violate their dignity, who drive vehicles drunk, a whole range of different things. And I think the most important legal document I've written in my life, was that code of conduct, that established processes for people to be accused of misconduct, to have the right to defend themselves and that bans torture. And from then onwards, torture was banned in our camps. Writing in a little motel on the outskirts of Lusaka, with an empty swimming pool and a fixed menu and hot water every second day, and terrified that commandos would come from South Africa to take us out. You looked up all the time. That’s where I wrote that code of conduct, and I think that would stand out.

  ROB: Albie, how did it feel to be honoured by the Clooney Foundation for Justice at the inaugural Albie Awards in New York recently?

  ALBIE: Part of me doesn't like the idea of giving awards for pursuing justice. We gave our lives to a freedom struggle. And it wasn't for medals and acknowledgment and singling out particular individuals for what was very much a collective struggle. At the same time, you don’t say no to an offer like that. And part of me is absolutely flattered and overjoyed and part of me is very uneasy. I accepted because of Amal and George, and they are formidable and fun. People of huge achievement and success. And using their strong presence and their voice to pursue justice. And it's not just something they do: it's part of their love, it's part of their relationship. And I'm happy to be associated with that. Normally the human rights community events are dour, and there's a place for naming and shaming and denunciations. But if that's all you get, only part of your humanity is being expressed and this evening’s event was full of energy and fun, and laughter together with the seriousness and musicality. And it's that richness that I enjoy in the way that they do things.

  ROB: You've talked a lot about having fun and how award ceremonies can be dour. And there was a bit in your book about how you should take joy from life and no one should suppress your joy in the little moments that you get. So the simple question is: how important is it to have fun?

  ALBIE: I'm just laughing. It's just lovely. It's a nice experience, but it's more than that. I'm sure it's good for your immune system and it's more than that. It's good for your intelligence. It's good for your sense of balance, the diversity of human emotions, the range of emotions. It kept us going. And I told myself a joke after I was blown up and discovered I'd lost an arm and it actually helped me in that very dire situation. So humour in that sense saved me from a kind of despair. One of my favourite cases as a judge opened with the question “Does the law have a sense of humour?” And actually ended up by saying that humour is one of the elixirs of democracy. It's the ability to soften tensions, that tensions don't become bitter. Manage tensions and conflicts through humour in ways that are intrinsically nonviolent and you feel a little bit in control of that combination of anger and heaviness can actually become self-defeating. And so the humour brings in the oxygen, brings in the vitality, allows for something else, and it's connected with hope.

  ROB: Thank you Albie, it’s always a privilege to listen to you speak. And Mpogi knows what I think about her. I'm so excited for her future because just so much energy, and whenever I hear her generation speak, I just think the world will be okay.

  MPOGI: Thank you so much Rob, thank you so much Albie. This was brilliant.

  ALBIE: Bye, bye.