When he stopped speaking and the applause died down, there was silence — always a sign that a speech has made an impact.
More than a hundred people from 40 countries present at the dinner sat spellbound as Justice Albie Sachs of our own Constitutional Court recounted the trauma of torture and the intense sense of redemption from first meeting his torturer and then later gaining access to the state file that contained his own description of the brutality that had preceded his “confession”.
Speaking at a function hosted by former United States president Jimmy Carter at the Federal Reserve Bank of Atlanta at the end of last month, the theme was the right of access to public information; the dinner the prelude to the conclusion of a three-day international conference on the subject hosted by Carter’s admirable foundation (Thabo Mbeki, take note).
Chairing the closing session the next day, Carter spoke of how he had had to constrain tears the previous evening. Carolyn Gomes, one of Jamaica’s leading human rights activists, described Sachs’s speech as “one of the most moving evenings of my life”.
As always, Sachs managed to put a very human face to what some might otherwise regard as a technical subject — while he is a fine lawyer too, it is this attribute that has been the distinctive feature of Sachs’s contribution to the jurisprudence of the court since 1995.
The defence and interpretation of the Constitution is always a matter of law but, as it involves rights, it is also about people — their hopes, their fears, their dreams and their multitudinous vulnerabilities.
Sachs gets this, big time. Which is why he will be missed when his term at the court comes to an end next year. Indeed, September 2009 will be a very important milestone for the court. Along with Sachs, three others of the original court that was appointed late in 1994 will move on: justices Pius Langa, Yvonne Mokgoro and Kate O’Regan. Justice Tholie Madala, of the same generation, will have retired a little earlier in the year.
Five out of 11 means a potentially huge shift in power relations in the court and, thereby, its jurisprudence, not least because Mokgoro, O’Regan and Sachs, in particular, often found themselves on the same — progressive — side of any division in opinion at the court.
Such is our affection for the retiring judges that we will probably not only mourn their departure but also despair the decision of the founding mothers and fathers of the Constitution not to make the appointments to the Constitutional Court for life.
But would we really prefer the situation now pertaining in the US, where one of the justices of the Supreme Court is desperately hanging on for a Democratic president, despite his octogenarian status? Although he allegedly still plays tennis, Justice John Paul Stevens will be 89 years old if he survives until the end of George Bush’s reign. Despite the fact that he was appointed by a Republican president, Gerald Ford, in 1975, he has been a disappointment to conservatives and is now considered to be on the increasingly beleaguered progressive end of the court.
Bush, no doubt, would dearly love to cement the conservative majority of the court before he goes — after all, it secured his first election to the White House in 2000 by one vote.
But what of the new appointments here? Will they become the subject of such partisanship? Will the new ANC leadership seek to stamp its mark on the process or will President Mbeki be anxious to make the appointments before he leaves the Union Buildings?
It is a space that must be watched with great attention. The Judicial Service Commission (JSC) is a bright star in South Africa’s new constitutional firmament — though its sheen dulled last year, with its obscure and unsatisfactorily muddy handling of the complaints against Cape Division Judge President Judge John Hlophe.
On the appointments front — its primary assignment — it is has performed well, though the academic and practising lawyers on the JSC sometimes complain about the attitude of the politicians, who have a built-in majority. The appointment hearings are in public — if you are ever in Cape Town during such a sitting, a visit to the conference centre of the Vineyard Hotel where the hearings are held is to be recommended — and have generally attracted broad political consensus.
The new ANC leadership has shuffled its pack with changes to key positions in Parliament; we must wait to see if it will do so with the JSC, ahead of the Constitutional Court appointment process. Given that Jacob Zuma’s future may still, in the end, depend on the decisions of the court, the personnel on the Bench may, in turn, end up having a decisive impact on the presidency.
It will, therefore, be interesting to see the attitude of Langa, who as Chief Justice chairs the JSC, as well as his brilliant deputy, Dikgang Moseneke, who will surely succeed him. They, too, have a stake in getting the process — and its timing — right.
As the response to Sachs in Atlanta showed, South Africa continues to stimulate international attention and sentiment. The year 2009 will mark the end of an era, the end of the 1994 Generation: Mbeki will leave office and, soon after, the remaining five members of the great first Constitutional Court of the democratic South Africa will have joined him.
The sense of uncertainty and even instability unleashed last year, which simmers on, is only likely to be replenished next year.
It is a time for cool heads and calm judgement. Whether in harmony or discord, the successors in both the Union Buildings and the Constitutional Court will together determine the fate of South Africa and its constitutional democracy for the next generation and beyond.
For the future resilience of the rule of law, the question of who succeeds Langa, Madala, Mokgoro, O’Regan and Sachs is every bit as important as the question of who succeeds Mbeki, if not more so.