Albert Sachs | |
|---|---|
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| Justice of theConstitutional Court | |
| In office October 1994 – October 2009 | |
| Nominated by | Judicial Service Commission |
| Appointed by | Nelson Mandela |
| Personal details | |
| Born | Albert Louis Sachs (1935-01-30)30 January 1935 (age 90) |
| Nationality | South African |
| Spouses | |
| Children | 3 |
| Parents |
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| Education | |
| Signature |  |
Albert "Albie" Louis SachsOLS (born 30 January 1935) is a South African lawyer, activist, writer, and former judge appointed to the firstConstitutional Court of South Africa byNelson Mandela.
Albie Sachs was born inJohannesburg at the Florence Nightingale Hospital to Emile Solomon "Solly" Sachs, General Secretary to theGarment Workers' Union of South Africa, and Rachel "Ray" (née Ginsberg) Sachs (later Edwards). Both his mother and father fled toSouth Africa as children with parents who were escaping persecution against Jews inLithuania. Sachs shared that at the time they left, theantisemitism had become so violent that "Every Easter, theCossacks would ride into the villages and say, 'The Jews killed Christ, we're going to kill the Jews.' And my grandparents and others were fleeing into the forests and basements of buildings... so they wanted to escape."[1][2] Both of his parents were politically active and his father expressed the desire that Sachs "grow up to be a soldier in the fight for liberation."[3] His mother was a member of theSouth African Communist Party and worked as a typist for its general secretaryMoses Kotane. Sachs said that Kotane's presence in his family's life, in particular the way he was admired by Sachs' mother, made it clear to him that racism was absurd, inhuman, and unjust.[4][5]
His parents separated when he was a toddler and he moved with his mother and younger brother Johnny to a modest beachside home inCape Town.[4][5] Sachs excelled in school and was moved forward two grades, in part due to a shortage of schoolteachers in South Africa duringWorld War II.[6] He attendedSouth African College Schools, where he edited the school magazine, for junior and high school before graduating. He started law school at theUniversity of Cape Town at the age of 15, and won a prize for English in his first year.[7] He was admitted to thebar in South Africa and began practicing law at 21, and became an advocate for those being prosecuted under racist and oppressive laws, including people who opposed apartheid.[7]
On 6 April 1952,white South Africans commemorated 300 years since the arrival of Dutch colonisers, particularlyJan van Riebeeck, who rooted European civilization into the country. Many also celebrated the recent electoral victory of theNational Party and the introduction of the wordapartheid to the English language. Sachs, then a second-year law student, joined two hundred Black South Africans at a meeting to support theAfrican National Congress (ANC), the National Party's opposition, in a working-class area of Cape Town. The ANC launched theirDefiance Campaign Against Unjust Laws the same day.[8] Though Sachs was initially told that the Defiance Campaign was a Black campaign led by Black people, he later led a group of young white South Africans to sit in chairsreserved for Black South Africans at the post office.[1] In 1955, Sachs attended theCongress of the People inKliptown. More than 2,000 delegates supporting the ANC adopted theFreedom Charter, which envisaged equal rights for all in a future South Africa that "belongs to all that live in it, black and white."[9]
As part of the opposition, Sachs was subject to predawn raids by the security police and governmental restrictions on his activities, including meeting with more than one person at any given time. He was also banned from publishing.[10] He was eventually arrested and detained insolitary confinement under the90-Day Detention Law.[11] He was released after three months but was promptly rearrested and held for an additional seventy-eight days. He was arrested again in 1966, which he described as the "worst moment of [his] life." He was subjected to a spell ofsleep deprivation by a security team whose head had been trained in torture methods by the FrenchDirectorate-General for External Security inAlgeria.[12] Upon his release, he was given permission to leave South Africa under the condition that he never return.
Sachs left forEngland accompanied by Stephanie Kemp, a former client and later cellmate. They married, had children, and continued their anti-apartheid work in the London branch of the ANC.[13] His ANC work brought him to different countries in Europe but he was denied entry to the United States, which regarded the ANC as a terrorist organisation.[12] After policy changes,[specify] he was able to visit the US, where he attended theTrial of the Chicago 7 at the invitation of the lawyers defending theBlack Panthers. Sachs supportedBobby Seale and later met Black Panther leaderHuey P. Newton.[citation needed]
Sachs attendedSussex University with financial aid from theJoseph Rowntree Charitable Trust and completed his doctorate in 1970 underNorman Cohn and G. I. A. D. Draper. His thesis, titledJustice in South Africa, was published in both the UK and the USA but was banned in South Africa, with those in possession of it facing prison time.[14][15] Between 1970 and 1977, Sachs was a lecturer in the law faculty at theUniversity of Southampton, where he wroteSexism and the Law with historian Joan Hoff-Wilson. He also publishedThe Jail Diary of Albie Sachs, which illustrated his time in detainment, in 1966 andStephanie on Trial, which covered Kemp's imprisonment and his second arrest, in 1968.
Sachs moved to the newly independentMozambique in 1977, where he worked as a law professor at theEduardo Mondlane University inMaputo and studiedPortuguese to fluency.[10][16] He was later theMinistry of Justice's Director of Research. While in Mozambique, Sachs visited the ANC headquarters inLusaka,Zambia, at the invitation ofOliver Tambo, where Tambo asked him to draft a code of conduct for the ANC that forbade the use of torture and highlighted the party's democratic principles. The ANC adopted it as a binding policy after it was presented by Sachs at a conference inKabwe in 1985.[17]
Sachs helped lay the foundations for the future constitution of South Africa by serving as ascribe and provided Tambo with legal support.[18][10]
On 7 April 1988, Sachs opened the door to his car and it exploded.[19] Sachs lost his right arm and vision in his left eye, and a passerby was killed.[5] He was stabilized in Mozambique, then flown toLondon Hospital to recover. There, he received a letter promising he would be avenged. Sachs decided to seek notrevenge, but "soft vengeance". This "soft vengeance" would take the form of getting freedom in a new non-racial and democraticSouth Africa based onhuman rights and the rule of law.[20][5]
After recovering from the attack, Sachs established and became the founding director of the South African Constitutional Studies Centre at theUniversity of London.[21] He then flew toDublin to work on the first draft of South Africa's Bill of Rights along withKader Asmal under the direction of the ANC. In early 1989, Sachs went to the US to work withJack Greenberg at theColumbia School of Law andLouis Henkin at theSchool of International and Public Affairs.
He attended a Law and Justice Seminar inAspen, Colorado moderated bySupreme Court JusticeHarry Blackmun, whose personal physician spoke about the intersection of his Catholic identity and his opposition toabortion and his belief that his own beliefs should not be forced on others with different beliefs. Despite the physician's staunch objection to abortion, he supported the passing ofRoe v Wade. Sachs took from this the idea of the relationship between the sacred and the secular, which would later influence his own judgments.[22]
While in the US, Sachs also learned to use a computer and wroteThe Soft Vengeance of a Freedom Fighter, where he reflected on his recovery.[23]
Sachs returned to South Africa in 1990 after the unbanning of theANC and other political organizations and the release ofNelson Mandela. There, he worked at theUniversity of the Western Cape (UWC) in the law faculty withDullah Omar and was appointedhonorary professor at theUniversity of Cape Town after his lecturePerfectibility and Corruptibility.[21] He continued working with the ANC's Constitutional Committee and in 1990 publishedProtecting Human Rights in South Africa. This book contained the controversial[24] paperPreparing Ourselves for Freedom, which proposed that the ANC stop saying that "culture is a weapon of struggle" by arguing that the sociopolitical impact of culture was too complex and full of ambiguity to be reduced to "a weapon that simply fired in one direction."[citation needed] Sachs was elected to the ANC's National Executive Committee in 1991 ahead of the ANC's first conference in South Africa.[16] He worked with UWC to organized workshops onelectoral systems, land rights, regional government, andaffirmative action, among other topics.[25][irrelevant citation] In December 1992, Sachs worked on ANC's team during negotiations for a new constitutional order.[26]
Sachs also served on Working Group Two, which dealt with the nature of the South African State and the process for constitution-making.[27]CODESA negotiations broke down but were later resumed as the Multi-Party Negotiation Process, which led to the drafting of theInterim Constitution. This provided for South Africa's first democratic elections, which would populate itsParliament. Parliamentary members formed the Constitutional Assembly and drafted thefinal version of the Constitution.
The interim Constitution also provided for the creation of an independentConstitutional Court, which would ensure that fundamental rights would be upheld during the Constitution-making period both to ensure and to certify that the text of the final text Constitution complied with the 34 Principles agreed to during negotiations.[21]
Sachs has been widely credited as the "chief architect" of the post-apartheid 1996 Constitution, a label that he firmly rejects, insisting that the Constitution was the product of large groups of people working over many years and culminating in the intense work of the Constitutional Assembly, of which he was not even a member.[28] He has said that, if one were to do a paternity test on South Africa's Constitution, that Oliver Tambo's DNA would be revealed.[29]
In 1994, following South Africa's first democratic elections, Sachs resigned from the ANC's National Executive Committee and pursued a position on the country's newly establishedConstitutional Court.[10]: 244–245 [3][30] He was selected later that year by Mandela as a founding member of the Court. In addition to his judicial duties, Sachs and JusticeYvonne Mokgoro put together the Court's art collection, which relayed its dedication to humanity and social interdependence in the newly democratic South Africa.[31][7][32] His appointment inspired initial controversy, primarily due to his interview with theJudicial Service Commission. Here, Sachs was asked about his role in a report downplaying the ANC'sindefinite detention andsolitary confinement ofUmkhonto we Sizwe commander Thami Zulu.[33] Thami Zulu was killed in Lusaka in 1989, and the ANC never carried out an investigation about who in the ANC had murdered.[34] Sachs received criticism from other politicians and lawyers, which he felt was unfair given his central role in ending torture in ANC camps.[35][36] Sachs worked on a number of landmark cases, includingMinister of Home Affairs v Fourie and the Prisoners' Right to Vote.[10]
After theElectoral Commission of South Africa declared that prisoners would be barred from voting in the general elections, the Court considered whether they were denying a fundamental right. The Court unanimously agreed that withholding the right to vote from prisoners was unconstitutional and would be observed only under an Act of Parliament that was compatible with the Constitution. Sachs wrote: "The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood."[37]
Christian Education South Africa v Minister of Education questioned whether Parliament had unconstitutionally limited religious rights by prohibitingcorporal punishment in schools. Sachs argued that corporal punishment infringed on the rights of children, and pointed to Section 12 of the South African Constitution, which extends the rights to freedom, security, and protection from "all forms of violence whether from public or private sources."[38] Sachs wrote that "[B]elievers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law."[39] Sachs felt that the case would have been enriched had by a children's advocate appointed by the State.[38]
InPort Elizabeth Municipality v Various Occupiers, Port Elizabeth officials filed for the eviction ofunhoused people living on unused, private land. The Court unanimously agreed that the group should not be evicted in support of the "right not to be arbitrarily deprived of a home." Sachs added, "Ubuntu is a unifying motif of the Bill of Rights, which is nothing if not a structured, institutionalized and operational declaration in our evolving new society of the need for human interdependence, respect and concern."[40]
Sachs wrote the Court's majority judgement inMinister of Home Affairs v Fourie declaring that South Africa's statute defining marriage to be between one man and one woman was unconstitutional for not including same-sex couples. He stated that the Parliament was obligated to amend theMarriage Act to reflect the inclusion written into the Constitution and that the Court itself would make the changes if Parliament did not act within a year. He wrote that "the Constitution acknowledges the variability of human beings [genetic and socio-cultural], affirms the right to be different, and celebrates the diversity of the nation." TheCivil Union Act came from this decision and relied more heavily on the gender-neutral "spouse."[41] JusticeKate O'Regan criticised Sachs for not taking immediate action on the changes and assigning that responsibility to Parliament instead.[42][43]
InLaugh It Off Promotions v South African Breweries, the Court held that the parodied use of a trademark on a t-shirt should not be interdicted, because the detriment to the owners intellectual property rights was small and far outweighed by free speech rights. In a separate concurring judgment Sachs wrote, "Does the law have a sense of humor?... A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humor is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health."[44][45]
Volks v Robinson looked at whether a law providing for surviving spouses to receive maintenance from a deceased person's estate was unconstitutional on the grounds that it did not include unmarried cohabitants. While the majority of the Court did not find this discriminatory, Sachs strongly disagreed: "[S]hould a person who has shared her home and life with her deceased partner, borne and raised children with him, cared for him in health and in sickness, and dedicated her life to support the family they created together, be treated as a legal stranger to his estate, with no claim for subsistence because they were never married?"[46] The Court's majority decision was overturned in 2021 inBwanya v Master of the High Court in favour of Sachs' argument.[47]
S v M brought the Court a case wherein a woman, referred to as M, faced jail time for repeated credit fraud, even while out on bail. Sachs initially planned to dismiss the case but, in talking with his colleagues, he learned that M was a single parent of three teenagers living in an area with high levels of gang and drug activity and violence. She was also the owner and operator of two small businesses and was a member of the school governing board. Sachs accepted the case on the grounds of the children's right to parental care. He ruled in their interest, emphasizing that "foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma."[48][49]
Sachs retired in October 2009 after fifteen years in the Court. JusticesPius Langa,Yvonne Mokgoro andKate O'Regan also retired.[50] In 2010, he described his judicial career as "joyous and exhilarating, but also exhausting, complicated and problematic."[51][7] Sachs has stayed active and in the public eye since his retirement from the Court.The Guardian has described him as "arguably the world's most famous judge."[48]
Sachs has remained active in his retirement and travels around the world to lecture or act as a consultant. He works to promoterestorative justice, gender equality, and constitutional democracy. He worked with Canadian Supreme Court JusticeClaire L'Heureux-Dubé to encourage Supreme Court judges inSri Lanka andNepal to approach their roles with greatergender sensitivity.[52] Sachs traveled in his early years as well, speaking to theNorthern Irish duringThe Troubles,[53]Sri Lankans during theTiger Tamil Rebellion,[54] andColombians and theRevolutionary Armed Forces of Colombia in support of theColombian peace process.[55] In 1999, he visitedGuyana on behalf of theNational Democratic Institute to meet with political and civil society leaders to discuss political accommodation and constitution-making.[56]
In 1997, he was appointed byUNESCO to theInternational Bioethics Committee to help with drafting theUniversal Declaration on the Human Genome and Human Rights[57] He also spent 15 months in Kenya as a commonwealth judge and served on theKenya Judges and Magistrates Vetting Board.[58] In 2021, he served as a judge at theWorld Human Rights Moot Court Competition as part of theUniversity of Pretoria'sMandela Day celebration inGeneva.[59]
As of August 2022, Sachs is a trustee for the Constitutional Hill Trust,[60] the Oliver and Adelaide Tambo Foundation,[61] and the Albie Sachs Trust for Constitutionalism and the Rule of Law.[62] He also served on theInternational Cricket Council's Disciplinary Appeals Board for many years.[57][63]
| Year | Award | Awarding Body | Contribution | Ref |
|---|---|---|---|---|
| 1991 | Sunday Times CNA Literary Awards | Sunday Times | Soft Vengeance of a Freedom Fighter | [64] |
| 2006 | President of South Africa | Order of Luthuli in silver | Excellent contributions | [65][63] |
| 2006 | President of Portugal | Medal of Freedom | [citation needed] | |
| 2009 | Academy of Achievement | Golden Plate Award | [66][11] | |
| 2009 | Institute for Justice and Reconciliation | Reconciliation Award | "For realising reconciliation through his life and work." | [67] |
| 2010 | Sunday Times CNA Literary Awards | Sunday Times | Strange Alchemy of Life and Law | [64] |
| 2010 | Ford's Theatre Society (presented byRuth Bader Ginsburg) | Lincoln Medal | Human rights activism | [68][63] |
| 2014 | The Tang Prize Foundation | Tang Prize - Rule of Law | "for his many contributions to human rights and justice globally through an understanding of the rule of law in which the dignity of all persons is respected and the strengths and values of all communities are embraced..." | [69][70] |
| 2014 | University College Dublin | Ulysses Medal | Outstanding global contribution | [71] |
| 2021 | President of France | Legion of Honour | Contributions to human rights, racial equality, democracy, and social justice | [72] |
| 2022 | Inaugural Lifetime Achievement Award, (presented byMichelle Obama) | Clooney Foundation for Justice, The Albies | Lifetime dedicated to the pursuit of justice | [73] |
| Unknown | President of Brazil | Order of the Southern Cross | [74] | |
| Unknown | Lincoln's Inn | HonoraryBencher | [63] | |
| Unknown | John Brunner | Martin Luther King Memorial Prize | Island in Chains (withIndres Naidoo) | [citation needed] |
| Unknown | Harvard Law School Project on Disability (HPOD) | HOPD Award for the Betterment of Humanity | [75] |
Sachs holdshonorary doctorates from the following universities:
The Jail Diary of Albie Sachs was dramatized byplaywrightDavid Edgar for theRoyal Shakespeare Company and was televised by theBBC in 1981.[100] InAllan Hutchinson's 2012 bookLaughing at the Gods: Great Judges and How They Made the Common law, Sachs is listed as one of the greatest common law judges in history alongsideLord Mansfield,John Marshall,Oliver Wendell Holmes Jr.,James Atkin,Tom Denning,Thurgood Marshall, andBertha Wilson. Hutchinson believes that Sachs' "life and career redefine what it means to be a lawyer and judge in a society that is grappling with the injustices of its past and ameliorating opportunities of its future."[10]: 238, 265 Abby Ginzberg directed and produced the 2014 documentarySoft Vengeance: Albie Sachs and the New South Africa about Sachs' life. The film won aPeabody Award.[101][102] The Clooney Foundation for Justice established the Albie Awards to honour activists in different sectors all over the world.Maria Ressa,IACT, In 2022, Sachs was also featured theNetflix documentaryLive to Lead.[103]
Sachs married his first wife, Stephanie Kemp, a member of theAfrican Resistance Movement, ANC, andSACP, in 1966. They have two children, Alan and Michael, and divorced in 1980.[104] She remained in London for another 10 years and worked as aphysiotherapist specializing in the treatment of children withcerebral palsy before returning to South Africa.[105] Sachs married urban architect Vanessa September in 2006. Their marriage was officiated by JusticePius Langa. They have one son, Oliver Lukho-u-Thando September Sachs.[106] Sachs describes himself as "a very secular person" who is respectful of others' beliefs and is proud to identify as a Jew. The Jews he identifies most with areKarl Marx,Albert Einstein andSigmund Freud.[107][108]
