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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

UFS awards honorary doctorate to global peace ambassador Dr Lakhdar Brahimi

2015-07-07

Professor Heidi Hudson, Director of the Centre for Africa Studies at the UFS and Dr Lakhdar Brahimi.
Photo: Mike Rose from Mike Rose Photography

The Faculty of the Humanities and Centre for Africa Studies rewarded the contributions of Dr Lakhdar Brahimi, a prominent global peace leader, with an honorary doctorate on Thursday 2 July 2015.

The conferment formed one of the highlights of the 2015 Winter Graduations. Dr Brahimi’s work as a United Nations’ (UN) envoy, and African peace leader of note, was deeply respected by the university. Professor Heidi Hudson, Director of the Centre for Africa Studies at the UFS, accepted the PhD on his behalf.

In his acceptance speech, read by Prof Hudson at the Chancellor’s Dinner the same evening, Dr Brahimi expressed his gratitude to the university. “I deeply appreciate your generous recognition, and even now, in the twilight years of my life, I shall try to be worthy of your confidence in everything I say or do.”

“My generation did its share: its successes and its failures are things of the past. We must accept to be judged by you, the graduates. You, the young graduates here at the University of the Free State, and your fellow members of the African intellectual elite, have an exciting opportunity to take on the challenges and fulfil the dreams you have. We must accept to be judged by you.”

Algerian-born Dr Brahimi was first involved with the UN in 1992 as rapporteur to the Earth Summit. Distinctively, he is the most-frequently appointed special envoy of the UN. Amongst many other countries, he has worked as a mediator for South Africa, Haiti, Afghanistan, Iraq, Syria, Democratic Republic of Congo, Cameroon, Burundi, Angola, Liberia, Nigeria, Sudan, and Côte d’Ivoire on behalf of the UN.

Significant peacekeeping efforts in South Africa (1993- 1994)

The ambassador– in his capacity as special representative to South Africa from December 1993 to June 1994 –played a direct role in South Africa’s democratic transition.

Prof Hudson expressed appreciation for the ambassador’s role in facilitating a peaceful transition from South Africa’s Nationalist government into the current democratic dispensation.

“One of the reasons we selected him as recipient of the honorary doctorate, is because of what he did for the African continent,” she said.

In addition, she commented Dr Brahimi for being a living testament of Ubuntu. “He has displayed an ethic of humanism in everything that he has done, in the way that he has mediated in certain conflicts - his main contribution is as a mediator.

According to Hudson, his humility, modesty, and generosity are the epitome of Ubuntu which states that “I am because we are.”

Dr Brahimi as a global peace practitioner

Dr Brahimi served as Undersecretary-General of the Arab League, Arab League Special Envoy for Lebanon, and Foreign Minister of Algeria.

The UN Peace-building Commission was established as a result of recommendations in his2000 Report of the Panel on United Nations Peace Operations (Brahimi Report).

Since 2007, Dr Brahimi has been a member in The Elders - an alliance chaired by Kofi Annan -of peace and human rights advocates including Desmond Tutu, Graça Machel, Mary Robinson, and Jimmy Carter. His passion for justice led to his membership in the Commission on Legal Empowerment of the Poor.

In 2010, he was Laureate of the Special Jury Prize for Conflict Prevention, awarded by the Chirac Foundation (France), which promotes international peace and security.

Dr Brahimi’s influence in Peace Education

The Brahimi Report has had an indelible impact on scholars specialising in the broad field of peace operations. Dr Brahimi’s writings have also contributed to knowledge on post-conflict reconstruction and development (PCRD), a signification part of the African Union’s narrative.

He is a distinguished senior fellow at the Centre for the Study of Global Governance at the London School of Economics. He has taught a postgraduate course on Conflict Resolution at Sciences Po, Paris (2011); is Andrew D. White Professor-at-Large at Cornell University; and is affiliated to the Institute for Advanced Studies at Princeton, where he was a visiting professor from 2006 to 2008.

In addition, Dr Brahimi is a founding member of the French-language Journal of Palestine Studies, and a board member of the Stockholm International Peace Research Institute.

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