The following story by Rebecca Agule ’10 appeared in the Feb. 11, 2010, edition of the Harvard Law Record.
South African Justice went from outlaw to a life in the law
By Rebecca Agule
He survived repeat imprisonment, a car bombing that resulted in the loss of his arm, and vision in one eye, but through it all, Albie Sachs counts himself lucky to have played a pivotal role in his country’s history. And on February 5, Sachs, recently retired from the Constitutional Court of South Africa and promoting his new autobiographical book, The Strange Alchemy of Life and Law, shared his tales of activism, exile and incarceration at Harvard Law School.
Sachs began his legal career by advocating for human rights and representing defendants charged under racist statutes. This work led to his 1963 arrest under the 90 Day Law, which allowed the government to hold political prisoners for 90 days without filing actual charges. Sachs sat in solitary confinement, only to be rearrested almost immediately upon his release. He described the experience of sitting alone in a cell, with little light and high windows, alternating between staring at his toes and the wall.
“It’s a strange existence, an inhuman existence, to be forcibly without human contact. To be without people,” he said. “A deep deep depression enters into you. It is a sense of total utter deprivation.”
Click below to watch a video of his talk:
Mental games and songs helped Sachs pass the hours. He waltzed around his cell, tried to name all of the United States, and sang hit tunes. Irving Berlin’s popular song “Always” provided the inspiration for a satirical take on his own situation.
Sachs sang his version: “I’ll be living here, always. I’ll be staying here, always. Keeping up my chin, always, not for but an hour not for but a week not for 90 days. But for always.”
Prison contributed to his philosophy of life and the law.
“I took a vow deep into my detention, that if ever I was in a position of authority, I wouldn’t do this to anybody. It’s a great power, greater than thinking I will get them and do this to them. It’s a superior power,” he said.
Sachs also recognized the benefits he enjoyed, as compared to others under the same conditions.
“Even being subjected to torture, my skin gave me privilege, even as an enemy of the state,” he said.
After being released, and then rearrested and released once again, Sachs could not bear the threat of further imprisonment. He moved to England and began a life with a new wife and, later, two sons.
At age 39, while teaching law at Southampton University, Sachs discovered his terrorist status, which he earned simply because of his membership in the African National Congress (ANC). Sachs applied for a visa to attend a workshop on South African development at Yale, only to be rejected because of this label. Sachs saw the accusation as the antithesis of the true nature of the ANC.
“The ANC was against terrorism. This was the era of ‘isms,’ and terrorism was an evil thing for the ANC. Indiscriminate acts of striking down people are not part and parcel of mobilizing society. The indiscriminate use of terror was something we opposed,” he said. “I recall a time when planes were hijacked as part of the Middle East conflict. The leadership of the ANC said, ‘We are against terrorism.’”
Sachs describes the ANC’s anti-terror stance as, in part, strategic. “If the ANC went for that, we play into the hands of those in power,” he said.
During the 1985 ANC conference, Sachs made a presentation regarding the treatment of captives, and the organization passed several key resolutions on appropriate forms of struggle.
“When it came to the resolutions it became clear: traditional armed struggle, but no use of terrorism, no attacking people because they belong to a particular group,” he said. “The oppressed don’t have to learn the language of the oppressors.”
The delegates voted unanimously to ban the use of torture by the ANC. Sachs explained this decision, “The ANC doesn’t use torture, as a matter of principle, as a matter of the kind of people we were. This distinguished us.”
“More people have died from state terrorism than terrorism from irregular forces,” Sachs said. “That’s part of the equation, but no amount of state terrorism justifies the use of terrorism to overcome the state.”
Violence reentered Sachs’ life in 1988, when a bomb planted in his car by the South African security services exploded. Sachs lost his right arm and sight in one eye.
“I was personally never engaged in the armed struggle, but the armed struggle came to me.”
Until 1990, Sachs remained in exile, first in England and then in Mozambique. Returning to South Africa, he participated in the constitutional negotiations as a member of the Constitutional Committee and as the National Executive of the ANC. Following the first democratic elections, President Nelson Mandela appointed Sachs to the new Constitutional Court.
While on the Court, Sachs presided over the “Case of Mr. Mohamed,” which involved a Tanzanian who took refuge in South Africa after participating in the 1998 bombing of the U.S. Embassy in Dar es Salaam. South African authorities extradited Mohamed before obtaining a guarantee that the U.S. would not impose the death penalty. The Court declared the extradition unconstitutional, as no person may be sent to another state when facing a risk of human rights violations.
Touching upon the death toll in Dar es Salaam, Sachs said, “The fact that the offence is particularly egregious is no reason to bend the rules. If anything it becomes that much more important, you want to distance yourself. You don’t want to say in effect, ‘We are like you, but we are stronger than you.’”
“It is easy to have beautiful principles when they aren’t being tested, but isn’t it when they are tested that they really matter?” he asked.
Sachs prefers to think about the long term implications of the Court’s opinions and dislikes the idea of judges operating as machines, simply processing the information they are fed.
“To what extent does life experience go into decisions you make? Once you’ve got your opinion out it has an impact; it has effects. It is part of the law.”
Occupying a unique place history and jurisprudence, Sachs appreciates the opportunities that befell him.
“I feel I am perhaps the most privileged person in the world,” Sachs said. “I have all the privileges that being a white person automatically gave you. But I also had the privilege of being part of a liberation struggle. And finally the privilege of being a lawyer. That is three layers of privilege, and I dare you to find anybody who has had any more than that.”
The Office of the Dean, International Legal Studies, and the Office of Public Interest Advising collaborated in sponsoring this event. Dean Martha Minow’s introduction revealed her admiration for Sachs.
“I don’t think I’ve had as great an honor since I’ve been Dean as this moment,” Minow said. “This is a hero who has written human dignity into the law.”