11. The 1988 ANC Bill of Rights
Albie Sachs, then member of the ANC’s Constitutional Committee, tells the story of how he and Kader Asmal began the process of writing the Bill of Rights:
A month after the workshop where I had urged acceptance of a Bill of Rights, I was blown up. I lost my right arm and sight in one eye, and after Mozambican doctors had saved my life, I landed up in hospital in London. OR (Oliver Tambo) sent a handwritten note to me condemning the ‘dastardly’ attack … More than that, he arranged that the Constitutional Committee would meet with me in London as soon as I was out of hospital. And, as fantastic as the intervention of surgeons and physiotherapists and occupational therapists had been, the best, best, best medicine I was to receive was to be asked by the Committee to work with Professor Kader Asmal on drafting the first text of the ANC’s Bill of Rights for a democratic South Africa.
So, in rainy Dublin in 1988, sitting at a kitchen table in the home of Kader and Louise Asmal, we began the task of preparing the Bill of Rights. I’d actually imagined that it was a wooden table – in my head it became a wooden table – but apparently it wasn’t; it had a plastic-covered top. I would do the textual side and Kader would deal with the enforcement, and then we would swop.
I sat down at that table with a clean piece of paper – no books, no documents, no charters, no constitutions, no preambles – the idea being that a Bill of Rights should speak from inside of you, it should proclaim itself. I was writing with my left hand – I had had to learn to write with my left – and I jotted down a number of fundamental rights that the people of South Africa should have. And afterwards we checked; Kader went through it, he made some textual changes, and we checked it against the great instruments of the world, and all the fundamental rights were there. It wasn’t because we were particularly clever or astute. It was because we’d been so deeply immersed in a struggle involving millions of oppressed people expressing their demands, that we were able to find the language. And we had that first, amazing ‘pinch-me’ moment of our political lives: ‘Is this really happening? Is it really true?’ To be building, constructing, affirming, not merely denouncing and demolishing.
A feature of the draft was that, inspired by the Freedom Charter, it projected an emancipatory rather than a conservative vision of fundamental rights, putting social, economic and cultural rights, together with gender rights and workers’ rights, firmly on the agenda.
In this way, using the Oliver Tambo vision of conjoining majority rule in a non-racial democracy with an emancipatory, pro-people Bill of Rights, we were wresting the debate away from power-sharing between separate racial groups and placing the issue of achieving a non-racial democracy serving the interests of the dispossessed at the centre of discussion. It was encouraging to see how swiftly and well ANC members and supporters came to back the humane, rights-based approach.