Protecting Human Rights in a New South Africa

I think back to that period, now out of hospital, minus an arm, but with a full heart, because getting well was a political act; it was defiance of the bombers, it was for the struggle, for the people, and for me at the same time. I received a beautiful letter from Oliver Tambo in his handwriting, and the ANC arranged for me to fly to Dublin to work with Kader Asmal on a draft bill of rights for a democratic South Africa. It was the best therapy in the whole world! From living in our heads, from living in dreams, from imagining a decent world emerging from the ruins, we’re now doing something constructive. We'd spent our whole lives denouncing apartheid, the pass laws, executions, capital punishment, floggings, the dispossessions from the land, and now it's something positive. Some of us were aching to heal, to build, to construct, and I was certainly one of those. It required almost an energy of contestation, of courage, of warding off the blows, and you've got the force and the power to push through things that are wrong and ugly in the world. A resoluteness and a determination and a place in history. And now we can start imagining - not just the Freedom Charter as a vision in abstract words, 'all shall be equal before the law, and there shall be security, peace and comfort, and the land shall be redistributed, and human rights and country belongs to everybody who lives in it, black and white'; lovely formulations, enabling and unifying, but what does it mean specifically, and how will it be? What's our ongoing vision of what it would be like living in a free South Africa?

I'd flown from Maputo via Paris to London with nothing other than bandages! Later, a suitcase came with some documents and a few changes of clothing. Fantastic, I said to myself, I am reinventing myself now; I've got that chance. I wanted to come out of hospital striding out like a survivor who's getting on. I think Einstein said it. It's amazing how often chance favours those who are ready for it. The chance, for me, is Shula Marks, the Director of the Institute of Commonwealth Studies, University of London, whom I'd done a lot of work with, and Mary Simons, who wanted to see me. And Shula asked, ‘What would like to do now?’ I said, ‘I'd love to start working on ideas and thinking about a new Constitution for South Africa.’ ‘Fantastic!’, she said, ‘At our Institute, we have a bathroom upstairs, we can convert it into an office, and I'm sure we'll get money from the Swedish International Development Agency and Ford Foundation for you.’ Six weeks later, I was in that office, and I'm provided with an office, administrative support, space, and a telephone. I can think, I can read, I can write, I can type. Wow.

The main thing I was working on at that stage was a Bill of Rights for democratic South Africa. I had been very skeptical of this Bill of Rights stuff: lawyers’ language, giving judges a lot of power, parliament must establish the rights representing the people and out in the streets, and you can't leave it to that small class of clever, crafty judges to say what fundamental rights of the people should be. That’s a common view amongst critical legal studies, realist lawyers, as people turned themselves against the formalism of law. And I turned around completely, because of internal debates inside the ANC. There'd been a paper produced by Pallo Jordan, one of the top intellectuals in the mid 1980s, as an answer to group rights on power-sharing. He said that will simply entrench tribalism, racism, and ethnic division, and there'll be no way forward. What we need in South Africa is a Bill of Rights, which will protect the rights of people, not because they're majority, minority, black, white or brown, but because they're human beings, and there I saw straight away, that's our way forward. A Bill of Rights.

Students in Durban set up an anti-Bill of Rights committee. They see it as a Bill of whites. And the idea of a Bill of Rights would be okay, you get the vote for everybody, but a Bill of Rights will entrench the existing property relationships and white supremacy now would be protected by the Constitution, not as white but simply as the people controlling the economy, owning the land, in charge of the lives of others. So, I wrote a paper then why we must set up an anti-anti-Bill of Rights Committee, and why should we hand over a Bill of Rights to conservative forces? Why can't the Bill of Rights be emancipatory? Why can't a Bill of Rights reach the people in the factory, not stop at the factory doors, reach the mine workers, not stop at the entrance to the mines, reach the front door of the house and not stop before reaching the people in the home.

It was liberatory for me now, as a lawyer, seeing how that concept of fundamental rights, which people had fought in many countries in many ways, could be liberatory in South Africa, and could destroy the notion of group rights with shared presidency and negotiations between leaders of different ethnic groups. We needed a completely different vision. And then I came across the idea of the three generations of human rights. A Czech working at the United Nations wanted to promote environmental rights. It didn't fit in with fundamental civil and political rights of the 18th century. It didn't fit in with social and economic rights of the 19th and 20th centuries. So, he said, fundamental rights in the 18th century, revolution, decolonisation of the Americans, freedom of speech, right to vote, great social economic rights coming later, right to housing, education to health, 19th century, 20th century, late 20th century, rights to environment, rights to peace, rights to development. That was a very progressive way of looking at rights, and very valuable for us. So now I introduce the idea of the three generations of human rights as something now that could be embraced. I’m writing about the emancipatory vision of a bill of rights, and how we must claim the content of those rights to make sure that it doesn't simply protect existing power structures, on the contrary it becomes a mechanism for enabling people to enjoy rights.

So much depends on the language you use, and a lot of the language of our struggle was about power. But we needed cooler, calmer, warmer, more embracing, more inclusive language; language of international discourse; language of people now who are confident, confident about the vision they have of society they want, and the rights that people will want. So, the tone and modalities of writing had to be such that they could reach out to the middle ground. A lot is spoken in those days about the middle ground, and on one side would be the masses, the people, the press, the money without rights. On the other side, the oppressors got everything. That middle ground then became a ground of contestation. To reach the middle ground and the emerging small group of black capitalist entrepreneurs, for them to feel there's a role for them, space for them, they can even benefit from change, they're not simply seen as bourgeois lackeys of the whites, that language was important to reach the faith communities. It is very important to have rights for workers, that workers in the New South Africa would have independent unions, not unions dominated by the government and simply supporting the government as transmission belts for top-down forms of control. The women's movement is now speaking out loud and clear in many countries inside our own struggle itself. What about gender in New South Africa? We've got to take initiatives, we've got to be up there with people like Zanele Mbeki writing beautiful, vivid papers and Fene Ginwala and others are establishing a thematic and they want to feel that their aspirations won't be sidelined, that men won't be controlling the whole process of transformation and change. And what about religion? Will the ANC coming to power close the churches, and the mosques, and the synagogues; and that kind of idea was being promoted heavily to frighten people. Where do we stand on that? And then on race? Is it simply going to be a reversal of racial domination now, with the majority doing to the whites what the whites had done to them? Will there be families in the New South Africa? Will everything be collectivised? And these were fears, with counter propaganda being pumped into the masses through various forms of media, that the idea of transformation and change would be to bring in new forms of oppression.

I see my role then as thinking for myself, articulating the kind of ideas we had when we went for the Freedom Charter, adopted by acclamation. In practical terms, what's going to happen to the future of Roman Dutch law? So, I sit down in my office, and I write. The words came out easily. I don't want to write stereotypical jargon that you get in the textbooks about freedom and religion. What does it mean to us in in reality? I'm very secular. I had to fight hard for my right not to pretend to have a belief. I'm surrounded by believers, Jewish and Christian, and I saw how much religion meant to people in our struggle. So I write position papers on all those things. I include my paper preparing ourselves for freedom. I work on different themes. To believe or not to believe? What does democracy mean? And it means liberating faith in the sense it can express itself without being dominated by race and the power structures of racism. The one I enjoyed the most writing was judges and gender. For me, the key thing to bring out was that this was not a racial matter. It was being projected that African society is very male dominated, and women are subordinate, as though white society wasn't patriarchal; it was extremely patriarchal. So, I opened with an observation that the one truly nonracial institution in South Africa is patriarchy. That was the most important point to be made. It's not a matter of blacks and whites and so on. Patriarchy permeates every area. And then a whole series of things followed from that. We knew the land issue was going to be huge, land dispossession, together with cheap migrant labour went with disenfranchisement. The three were connected, and full emancipation for the black majority required dealing with the land issue. It didn't mean you had to wait till you had land redistribution before you got the vote. Getting the vote would be a major mechanism for access to land and to decent employment. Children's rights, freedom of speech, future Roman Dutch law – I'm saying we just end up with South African Law. All presented in a calm tone, readable, not polemical.

In 1990, the ANC is unbanned, Mandela's released, we’re back in South Africa, and I'm at the University of the Western Cape. My office was called the South African Constitutional Study Center (SACS). I’m writing, writing, writing to South Africa, giving presentations at the University of the Western Cape Constitutional Committee meeting in South Africa. I'm collecting all these papers together, I speak to Oxford University Press, South Africa, and they publish this lovely book, capturing that sense of excitement we felt. We were going to get that new South Africa. The initiative, and the impetus was very much with us, because we had a vision that fitted in with world views on certain basic rights and entitlements that everybody should have. And instead of creating some kind of strange concoction for South Africa, because South Africa had such a so-called 'complicated complexion', it was actually very simple, very straightforward, very much based on the essential humanity of all human beings.