The Constant Battle of Albie Sachs

NEW YORK - Right at the door, before extending his one hand (the left) in greeting, Albie Sachs sternly informs me that he has no more than one hour for the interview. That's understandable: The man is 73, a justice on his country's highest court, he has authored four fascinating and beautifully written autobiographies, as well as a number of texts about law and society (including one on sexism and British law) - and now, as he hastens to point out, he's busy writing two more books, simultaneously. At this moment, he's probably thinking to himself: "Oy, oy, oy. Why did I ever consent to be interviewed?"

As his recent book, "The Free Diary of Albie Sachs" (Random House, 2004), reveals, "Oy, oy, oy" is a regular part of his vocabulary. The interview takes place in the office allotted to Sachs as a scholar in residence at the Ford Foundation in New York, and the honorable justice answers all the questions with prudent and sometimes elusive formulations.

Where is the mischievous Albie who appears in his books? Is this the same man who shared with his readers his shared bath tub experiences with women, after he had been wounded in the attempt on his life, in a book that chronicled his recovery ("The Soft Vengeance of a Freedom Fighter," University of California Press, 2000)? Is this the same man who dreamed in his youth of becoming a guerrilla fighter? Who was defined as a terrorist solely because of his affiliation with the African National Congress (ANC)? The same Albie who immediately, in the first pages of his book about his recovery, tells the Jewish joke about a certain Hymie Cohen, who falls off a bus and instinctively makes the sign of the cross. "What cross?" Hymie explains to his astonished friend. "I was just checking that everything was in place: spectacles, testicles, wallet and watch."

This joke recurs in several variations in the book. At ANC get-togethers, the joke is probably told in its reduced form, writes Sachs: "And the first thing comrade Albie did in the hospital was feel for his balls."

On April 7, he marked the 20th anniversary of the attempt on his life. Sachs, a South African Jew, was then in exile in Mozambique and working in that country's justice ministry. The bomb planted in his car by emissaries of South Africa's white regime seriously wounded him and a passerby (who later died). Sachs lost his right hand and the sight in his left eye. This year he happened to recall the date of the event, only because he scheduled a meeting for that day with the designer of an album entitled "Truth and Justice," featuring the art collection at South Africa's Constitutional Court, for which Sachs, one of the court's 11 members, wrote the introduction.

Were you that important in the ANC, or were you simply an easy target?

Sachs: "I think it was the second. Part of it would be their racism - [to hurt] whites responsible for stirring [things] up against their regime. But I wasn't in the military, wasn't in the underground. I was a soft target, easy."

How many people were assassinated by Pretoria?

"There were people who were tortured to death, children shot down in the streets, protesting, there was the massacre in Sharpeville ... Inside South Africa, there were quite a few cases of people being murdered. People outside were targeted, like myself, like Ruth First [the wife of Joe Slovo, head of the armed wing of the ANC, and also a Jew], some years before myself. Poison was also used: We don't know how many people were poisoned to death. It intensified the anger."

Did it make people opt for taking revenge?

"No. There was strong pressure in the ANC ranks to hit back. I remember people saying that until the white children and women feel the pain, they are not going to change. It was discussed and rejected, and the policy of not turning to terrorism was sustained. There were some examples of people who had explosives who defied that, but they were very few in number and were not approved of by the leadership. It was always put that the enemy was not a race, or community; the enemy is a system of injustice. We don't fight against the race, but the system. What strengthened this argument was the fact that whites were really active in the struggle, were ready to give up their lives. At the same time there were black people who were collaborating, sometimes very viciously.

"There were some cases where the anger was very high, people had explosives and used them in circumstances in which they knew civilians would be hurt. But there were few in number in comparison. The attacks against military and police and political installations could have been a couple of thousand, and the attacks against civilians came to 10 or 20. Something of that order. A more ambiguous area was the use of land mines near the South African borders, which killed farmers. They were aimed at military targets, patrols, but they carried the danger and the probability of killing white farmers."

You once wrote that you always thought the only way to end apartheid was by armed struggle.

"I wouldn't put it that way: In my heart and emotions I am very close to being a pacifist. I am not pacifist philosophically, and when the ANC decided to change from the policy of strict nonviolence to using directed violence as part of the struggle, I supported that. The armed struggle raised the consciousness very intensely of the oppressed people, and encouraged them to join in what they regarded as the highest form of struggle for their liberation. I think it was right and I think that if that hadn't been the case, we would not have gotten rid of apartheid in South Africa. But it was always a part, a component of a political strategy, which involved organizing the people inside the country, [and] involved international isolation, boycotts. It was just one element, and happily it never became an objective in itself."

In black and white

When Sachs was in a London hospital for treatment, he learned of the internal debate in the ANC over the appropriate response to the growing state-sponsored terror. The one who informed him, to his great relief, that the leadership was adamantly opposed to harming civilians, and that the organization had adopted this position, was Jacob Zuma, who in December 2007 beat out South African president Thabo Mbeki and was elected president of the ANC. In Sach's book "The Soft Vengeance of a Freedom Fighter," Zuma, who was imprisoned for 10 years on Robben Island and lived in exile for 15 years, is described as a very amiable fellow, who likes to laugh and listen and tell stories. Sachs calls Zuma, "my friend," but as a justice today, he will not openly express any position on the various scandals and suspicions of corruption around him.

Because of the latter affairs, Mbeki (whom Sachs also refers to as "my friend") dismissed Zuma from his position as vice president of South Africa. The suspicions against Zuma regarding the acceptance of a bribe in a major arms deal led to an indictment; the trial is due to begin in August - if the legal system is able to withstand all the political pressure being exerted on it not to proceed with the trial. "The court will decide," is all the Constitutional Court justice will say.

Sachs was born into a family that actively opposed the apartheid regime. When he turned six, his father's birthday wish for him was that he grow up to become a freedom fighter. At 17, he knowingly and deliberately broke an apartheid law when he sat down on a bench designated for blacks only, and was insulted when the judge sent him home to his mother rather than to jail. As a young lawyer, he frequently represented blacks who had broken apartheid laws.

In a 1999 interview within the framework of the "Conversations with History" program at the University of California, Berkeley's Institute of International Studies, he explained: "The law was being used, the courts were being used, to oppress people not to protect people. The judges were white, the police who commanded things were white, the prosecution was white, the laws were made by whites. And the majority of people whom I defended in criminal matters or appeared in civil matters were black, and they had no say in the law." Therefore, it's easy to get the impression that a good part of the near euphoria he's felt practically every moment since 1990 derives from the restoration of the dignity of the law in his country.

The interview for Haaretz took place before the wave of attacks against African immigrants and refugees that swept the country, in which dozens were murdered and thousands were forced to flee. This wave of hatred of "foreigners," which originated in local, ongoing economic distress, came as a shock to veteran anti-apartheid activists - even those who, unlike Sachs, had been disappointed for years by what was happening in their country post-liberation. One of these was Zackie Achmat, a member of the South African delegation which toured the West Bank about two weeks ago.

Achmat, a leader of the gay rights movement in South Africa, waged the public struggle against the policy of denial of the AIDS epidemic in a personal way, too: He declined to take the drug cocktail used to treat AIDS until it was made accessible to everyone. Nelson Mandela, who recently celebrated his 90th birthday, came to Achmat at home to implore him to begin treatment, but to no avail: He persisted in his refusal until the Treatment Action Campaign (TAC) decided at its general convention in August 2003 that he had to take the medication. Not long after that, the South African government decided to make the medication available to all. The Constitutional Court played a part in this policy change, emphasizes Sachs, when it ruled, on a petition filed by TAC against the drug being withheld from a pregnant carrier of the HIV virus, that the government's policy was unreasonable.

The constitution is progressive, but in reality, there are troubling reports about inequality, violence, corruption ...

"Our country has huge problems, and the constitution cannot solve any of them except to create a framework and a structure for dealing with the problems in a very principled way. It establishes the values, a vision of the kind of society that we want, and it establishes mechanisms for achieving that. That does not build houses, that does not in itself stop crime; it does not in itself transform the society but it creates the framework in which the society can be transformed.

"Our president stands for two terms, which is in the constitution; we have regular elections. We have a very free, very lively, very rigorous independent press, which criticizes the government and institutions of power in our society. It is a lively open society. None of this in itself eradicates poverty. Poverty is still very much associated with race, the legacy of institutionalized racism lies still heavily with us, but millions of people have got free homes, who lived in tin shanties before - literally millions, ten millions who moved to formal housing, and they don't pay anything; poor people get water and electricity. Before, they didn't have water and electricity, simple things like that, that are the basis of human dignity. People are free to speak their minds, people are not silent, are able to demonstrate, able to make their voice heard."

Sachs avoids answering the question of whether Zuma's election is part of what the justice refers to when he says "the people are not silent." Observers see Zuma's victory as an expression of dissatisfaction on the part of a majority of ANC members with Mbeki's liberal-economic line and privatization policy, which did bring about economic growth and the rise of a new, wealthier black sector, but rather failed to provide succor to the vast majority of citizens. Other activists, such as Bishop Desmond Tutu, view Zuma's election as a mark of shame, and are fearful about his chances for election as president.

A report in the British Independent on April 26 says that ever since his election, Zuma has sought to reassure South Africa's white citizens as well as Western leaders, and promised to continue pursuing Mbeki's economic policies if elected president. On an April visit to Great Britain, he met with a group of South African businessmen whose combined interests are worth billions of dollars. The businessmen left the meeting placated.

When he was accused of rape (he was later acquitted of the charge), Zuma infuriated many people with his contention that, according to tribal tradition, the woman's attire was an invitation to sex. The incidence of rape in South Africa is among the highest in the world. Sachs proudly takes credit for the wording of a provision in the new constitution that states that this is not only a "non-racial" state, but also a "nonsexist" one. A question about this success prompts a satisfied smile.

Sachs: "It's a constant battle. Racism is overt, often subtle as well, but is known and understood, while sexism is so wrapped up with cultural practices as to appear almost automatic and normal. The lead comes basically from the women's movement, [whose members] feel that the circumstances in which the patriarchal values prevail prevent them from being human beings. Women in South Africa have been very vocal about this. At the time the constitution was drafted, the concept of African feminism was powerful and what ensured that this provision got into the constitution partly was a battle inside the ANC, to ensure that at least 30 percent of the members of parliament would be women. This meant there was a very big bloc of women in parliament that adopted the constitution."

Is sexism associated more with black culture?

"In fact, [during the apartheid period] the only truly non-racial institution in South Africa was the patriarchy, sexism. It's found in all the different communities - it's very strong, if you speak about the white community, black community, Jewish community."

The Constitutional Court ruled that the prohibition against same-sex marriage was unconstitutional. It permitted a woman who was raped to sue the government for its failure to protect her. The court also considered the inheritance issue.

Sachs: "According to traditional law, the eldest male in the family is entitled to inherit his father's property. We ruled that this is unconstitutional, but we left it to the parliament to decide how to implement the change. This has not been done yet. In the meantime, we are applying the regular inheritance laws, on the basis of the rule of equality for all, so that all children inherit equally."

'What was I?'

While serving on the committee formulating the interim constitution, which was written together with representatives of the white government, Sachs decided from the outset that he'd rather be defeated in the vote than give up his fundamental proposal of including the term "nonsexist" in the definition of the state. Government representatives "were bemused by the phrase and claimed not to understand it," he writes in the afterword of the second edition of "The Soft Vengeance of a Freedom Fighter."

"Then one of the black men said that the womenfolk had fought hard for change in South Africa, and that life was difficult for our mothers; he felt the words should be included. The other black men supported him. There was an uncomfortable stalemate. Two black men and me - what was I? - against three white men."

The parenthetical aside "What was I?" - i.e., which implies that "white" is a social rather than a biological definition, and cannot be applied to a fighter against a regime of the privileged - is a common thread in Sach's books and in his conduct. At the same time, his works and speeches indicate that he is painfully aware of the privileges he enjoys as a white man. This is one of the reasons why he consistently declined to accept payment for his work on civil rights cases and in defending activists accused of subversion.

"Each of us from relatively privileged backgrounds, who had felt a need to overcome not disadvantage but advantage, had our particular personal conceits that had been subjectively meaningful to ourselves."

This was the case even in prison, where he received special treatment: At age 28, Sachs spent 168 days in a type of administrative detention, in complete isolation; several months later he was incarcerated for another 30 days. He was not subjected to physical torture, which made it easier to withstand the psychological pressures and to steadfastly refuse to answer a single question during his interrogations; he was also permitted to receive food that blacks did not receive, and he made sure to share it. The white activists who preceded him in prison also fought against the special privileges: When they were given clean cups instead of the filthy plastic ones given to the blacks, they refused to drink from them and hurled them against the walls, spilling the contents.

How do people of privilege come to recognize that a regime of privileges is unjust?

"My parents retained their socialist principles so for me it was very natural, but I encountered many people who just saw that the injustice of apartheid was so blatant. The other question is what to do about it; not many joined the underground, because of fear, and their self-dignity really suffered as a result.

"I know some people in the resistance with me were angry when they saw, as children, that even in their homes, a black person who was a gardener or domestic worker would be ill treated. It just seems unjust for a child, that somebody you loved so much would be so mistreated, in such a way. For many others it came much later in life.

"It wasn't about information. One saw the violence, one saw the injustice. Certainly among the circles where I grew up, there was a broad feeling that apartheid was wrong. But not many felt that they must do something about it, so to me the real question is not when you see that something is unjust, but when you feel you must do something about it, and how far you are prepared to go.

"And many people helped, in limited ways - lawyers, doctors - by looking after people in a careful way, some by giving training, some by providing a house, where Nelson Mandela could hide. They did nothing else, but just took a heavy risk in that way. Some by putting on theater that involved blacks and whites working together."

Nevertheless, Sachs belongs to the advantaged part of his society, which, as he says, still suffers from the legacy of institutionalized racism. His way of seeking to redress the imbalance was to promote a constitution that would annul the death penalty, ban torture, include rights of universal access to housing, water, medical treatment and a clean environment, and an obligate on the part of the government to provide social assistance and to fight economic inequality.

The framers of the constitution decided that the citizens shall also have the right to sue the government, privately, to ensure that it enforces the new social and economic rights. But in the same breath, they offered the government refuge: The state is obliged to take "reasonable legislative and other measures, within its available resources," to achieve the progressive realization of these rights, particularly in the spheres of housing and health.

An article published in 2003 in the journal Legal Affairs asserts that human rights activists have been critical of the reluctance of the justices, Sachs included, to mandate that the government report on its compliance with the court's rulings. The article claims that, because of his closeness (both personally and as related to his movement) to members of the government, Sachs is confident of their honest intentions. The article is entitled: "Sachs' Prudence."

'Too optimistic'

Sachs is indeed very prudent when asked how he would advise other liberation movements. The ANC, he says, received a great deal of advice. "We got it from everywhere, and all the time, and it was often very contradictory. Many people supported the struggle against apartheid, but not the armed struggle. Some supported the armed struggle and not the non-use of terrorism."

Was it helpful? Confusing? Annoying? Legitimate?

"It is very important, if you are appealing for world support, which we were. We had to listen, we had to understand, we had to try and explain our positions, and we had to reexamine our positions."

If you were asked to advise the PLO, or Hamas, would you do that?

"I wouldn't do that. I came to Gaza, just before the second intifada [when] things looked pretty promising. It was the Kennedy School of Government which organized a conference on the rule of law. I spoke with them openly about how we struggled in South Africa and the importance of the leadership being open, transparent, accountable to the membership, to the people - stressing that we were not fighting simply for statehood, but for dignity in the new stage."

Do you follow what's happening in Israel?

"I read about it, I hear about it, and it pains me deeply. Things seemed so full of hope in 2000, so close to what looked like a rational arrangement. Perhaps I was too optimistic, perhaps the people I met were too optimistic."

How would you advise the Palestinians?

"I wouldn't advise them. Nor would I advise the Israeli government. Because I would like to feel that if I had anything to say, it would be [about] rallying people together, getting them to look in each other's eyes, like we did in South Africa when promoting forms of reconciliation seemed impossible. If that's not possible, I don't think that I have any active role to play. My possibilities of contribution relate to one area only: finding a way to promote peace, which is based on the principle of dignity."

Are you that diplomatic because you are Jewish or because you are a judge?

"Well, I am a Jewish judge."

As a Jew, you have the right to become an Israeli citizen at any time and thus get privileges - that is, the rights denied to Palestinians. Can you allow yourself not to take a stand?

"I have more than enough to do dealing with questions of human dignity in South Africa. It's of overwhelming importance. I am interested and concerned about what is happening everywhere in the world. I have been to Sri Lanka to try and contribute toward peace there; I have been to Northern Ireland, to contribute there. I have been in Angola when the civil war was still going on ... That was the same objective, and when I went to Palestine and Israel - it was my motive. This is the contribution I make as a former freedom fighter, and this is consistent with my role as a judge, and my personal philosophy."

Beautiful courage

When Sachs noted that our time was up, I still wanted to talk about what, on more than one occasion, he has described as the most difficult experience of his entire life: the six months he spent in solitary confinement.

You've said that solitary confinement was much more difficult than the year after the attempt on your life.

"Much more difficult, much more. The bomb affected my body, but fortunately did not hit my brain. It just made me look different. In prison the attack was on my spirit, on my mind - first with solitary confinement for 168 days and the second time with sleep deprivation. I haven't got over that."

In what way? Dreams? Nightmares?

"No, no ... There was a time during my first detention when I was so depressed and so stricken that I was looking for ways to throw myself off a balcony. When I would walk from the interrogation room to a toilet, I thought of it. And now sometimes when I walk on a balcony, I feel strange."

You remember your wish then.

"I do, and I draw back, I feel - it just comes to me - a certain deep, deep, deep sadness inside, together with a general feel of tremendous optimism. I have seen my country transforming, I have a wonderful job, we are working on the building that we are in - it's not a competition, but it is much more successful than the Israeli Supreme Court building of which many Israelis are proud."

How come prison leaves such an imprint?

"The isolation in confinement and sleep deprivation - it just reaches deep inside you. And people forcing their will on you; it destroys a certain element of self-consciousness and liveliness which is inside yourself."

During his first weeks in detention, the only reading material given to Sachs was the Bible, which he read from beginning to end. He chuckles at the ability of the Afrikaners in general, and his jailers in particular, to adopt the Bible as a guide for their racial platform.

"The Old Testament both in letter and in spirit (apart from the book of Isaiah) does not support apartheid," he wrote in his first book, "The Jail Diary of Albie Sachs." Years later, in "The Free Diary of Albie Sachs," he expressed a slightly different view. He found two completely different themes running through the Old Testament. The one that filled his heart with "beautiful courage" was the lyrical, poetic and prophetic theme, outward-looking, expressed in songs, psalms and visions of justice. What horrified him, however, was the line which proclaimed the existence of a divinely protected Chosen People, "for whose benefit genocidal punishments were meted out to all enemies, homes were razed, men and women slain, oxen slaughtered, plagues visited and first born sons exterminated."

When Sachs returned to South Africa in 1990 after 24 years in exile, he made a concerted effort to speak with Jewish organizations. "I did not know there were so many, even the Jewish Dentist's Union. I wanted them to feel part of South Africa. To become part of the new South Africa. To bring their Jewishness in with them. I would look at the audience, and I would see the very same audience, maybe 200-300 people, and I would see three dimensions of the same audience: The one would be people who are very community oriented - through shuls, schools, religious observances, various forms of help, looking after people in trouble. I would also see people who were interested in culture, literature, ideas. [People with whom] I did not have to apologize for loving books and talking about ideas. And I would see whites with all the privileges and all the subtle racial assumptions that go with them. Three dimensions all mixed in a single community, in the same people, the same individuals." W