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Drafting the South African constitution: an account by Justice Albie Sachs

06 November 2024 | Story Anthony Mthembu | Photo BORN2SHOOT

inaugural Albie Sachs Prestige Lecture 2024 — From the left (back row): Dean of the Faculty of Law, Prof Serges Kamga; Judge of the Supreme Court of Appeal, Justice Nolwazi Mabindla-Boqwana; Deputy Vice-Chancellor: Research and Internationalisation at the University of the Free State (UFS), Prof Vasu Reddy; Project Director of the Albie Collection and Chair of the Albie Sachs Trust (ASCAROL), Vanessa September; and acting Deputy Vice-Chancellor: Academic at the University of the Free State (UFS), Prof Philippe Burger. From the left (front row): Acting Vice-Chancellor of the University of the Free State (UFS), Prof Anthea Rhoda; Emeritus Constitutional Court Justice Albie Sachs; and Chief Justice of South Africa, Mandisa Maya.

The Faculty of Law at the University of the Free State (UFS) hosted the inaugural Albie Sachs Prestige Lecture on the UFS Bloemfontein Campus on 30 October 2024. The lecture – delivered by Emeritus Constitutional Court Justice Albie Sachs – was titled, ‘Who actually wrote the Constitution, and why they gave eleven unelected judges the power to strike down laws and actions of the democratically chosen parliament and president’?

In attendance at the lecture were Chief Justice of South Africa, Mandisa Maya; acting Vice-Chancellor of the UFS, Prof Anthea Rhoda; Judge of the Supreme Court of Appeal, Justice Nolwazi Mabindla-Boqwana; Senior State Advocate, Antoinette Ferreira; Project Director of the Albie Collection and Chair of the Albie Sachs Trust for Constitutionalism and the Rule of Law (ASCAROL), Vanessa September; as well as the Dean of the Faculty of Law, Prof Serges Kamga, among other high-profile guests.

In his opening address, Prof Kamga indicated that the lecture aimed to provide some responses to the core questions about the constitution and constitutionalism in South Africa. As such, Prof Rhoda echoed this sentiment, highlighting that, “when it comes to the events that preceded, surrounded, and followed the drafting and adoption of our country’s constitution, there are few commentators better placed than Judge Albie Sachs”.

The making of the constitution

As part of his lecture, Justice Sachs gave a detailed account of the making of the South African constitution. According to Justice Sachs, a total of 490 members of parliament came together to draft the constitution, which included members of the National Assembly and the Senate. These members had been mandated by 20 million South Africans who wanted a better future. As such, he described that moment as a “huge accomplishment on the part of the liberation movement”.

However, he highlighted that fulfilling this mandate was not an easy task, as it required an enormous amount of thought and mobilisation of legal technology to enable those in power at the time to surrender control of the army, police, and to some extent the economy and law-making, among other aspects. These negotiations resulted in a two-state process of constitution-making, which included the drafting of an interim constitution and the establishment of a parliament that would draft the final constitution.

Justice Sachs indicated that once the constitutional assembly sent the constitutional text to the constitutional court to ensure its compliance with agreed principles, it was found non-compliant in eleven respects, for which they had to find solutions in order for the constitution to be adopted.

As he concluded his address, Justice Sachs underscored his pride in having been involved in what he describes as a wonderfully rich story.

Forging a partnership

Subsequent to the address by Justice Sachs, the Faculty of Law and ASCAROL signed a Memorandum of Understanding (MoU), formalising the Albie Sachs Prestige Lecture as an annual event and allowing further collaboration. In fact, Prof Kamga highlighted that if Justice Sachs was not available to deliver a lecture, the trust would appoint someone in his place. To further solidify this partnership, the faculty was gifted with some of Justice Sachs’ works, including books and other materials, for its library.

Prof Rhoda expressed gratitude for this collaborative effort, saying, “We are grateful to have found such a partner in Justice Albie Sachs and the Albie Sachs Trust. May this relationship continue to blossom and bear fruit – to the benefit of our young leaders of tomorrow.”

News Archive

Publication on indigenous knowledge systems

2005-10-21

Dr Otsile Ntsoane (acting Director: IKS, Department of Science and Technology) and Prof Philip Nel (Director: Africa Studies at the UFS and guest editor of the publication) at the launch of the publication

UFS launches most comprehensive publication on indigenous knowledge systems
A unique collection of essays on Indigenous Knowledge Systems (IKS) was launched yesterday (20 October 2005) by the University of the Free State’s (UFS) Programme of Africa Studies.

The essays are published as a special edition of INDILINGA, the African Journal for Indigenous Knowledge Systems and is an outcome of the colloquium on Indigenous Knowledge Systems that was presented last year by the UFS Director of Africa Studies in cooperation with the National Research Council.

“The amount and diversity of materials on IKS brought together under one cover is unique as there are no other South African publications of this magnitude on this issue. It contains papers of international experts on IKS such as Prof Fritz Wallner from Austria and Prof Gayatri Spivak, foremost postcolonial theorist from India,” said Prof Philip Nel, Director of Africa Studies and guest editor of the publication.

“The publication is a rich source field for students and scholars to exploit because most of the sources quoted in the articles are recent, fresh and relevant. The contributors are largely people responsible for managing, fostering and studying IKS in a responsible manner,” said Prof Nel.

“An added value of the publication is the inclusion of the policy document on IKS that was adopted by Cabinet in November 2004,” said Prof Nel.

“Millions of people in South Africa are faced with the painful choice of abandoning their heritage. In this choice, the study and management of IKS has a major role to play; on the one hand, to encourage as much assimilation of traditional knowledge as possible into the modern systems, and on the other hand to provide a “language” and a “grammar” for indigenous people through which they can access modernity,” said Prof Nel.

The IKS debate involves questions of African identity, protection of indigenous communities and practices, political aspects as well as the scientific integrity of the enterprise.

The publication displays the range of burning questions that have to be resolved in this field such as mainstreaming IKS in academic debate and practice, recognition and protection of the knowledge holders, bio-prospecting and bio-piracy, bio and ethnic healing, lack of textbooks and field manuals, etc and will prove worthwhile for future researchers.

“One of the main reasons for publishing this volume is the fact that IKS should be studied not only to provide a sense of pride in the past, or to engender respect for indigenous peoples, but also to enable people in indigenous mind sets to make a better transition into the world of science and technology,” said Prof Nel.

The guest speaker at the launch was Dr Otsile Ntsoane, acting Director of IKS at the Department of Science and Technology. In his speech Dr Ntsoane stressed the symbolic and concrete value of the publication. “The publication can have a great social impact and the research results can contribute to chancing the economic landscape of South Africa,” he said.

The publication can be purchased at R150 per copy. For more information, Ms Steffi Cawood, Programme Coordinator for Africa Studies at the UFS can be contacted at (051) 401-2614.

Media release
Issued by:Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
21 October 2005

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