The Creation of South Africa's Constitution
![handle is hein.journals/nyls41 and id is 683 raw text is: THE CREATION OF SOUTH AFRICA'S CONSTITUTION
THE HONORABLE ALBIE SACHS*
I was delighted when I learned that my future clerk, Marco Masotti,
who is coming to join me in Johannesburg next year, managed to contact
Steve Ellmann and arrange this meeting, because Steve Ellmann has been
one of those persons who has followed the evolution he's been speaking
about, and with great sensitivity and great support. There is a tendency
for American scholars to assume that another country would only want to
adopt the wonderful human rights and governmental schemes found in this
country, and if only we and China and the rest of the world did so, what
an honest world it would be. There are many others who are so modest
and bashful about the American reality that they almost advise us to
avoid everything we've got here, whatever you do, rather than make our
mistakes. However, Steve just came on to the scene in terms of the kind
of dialogue that I find most fruitful: discussing things; analyzing, that is,
bringing his own insights and experience to bear in his analysis; but
listening to us; and being sensitive to what we were trying to do and
understanding the kind of people we were. So thank you very much.
About one month ago, the Constitutional Court of South Africa
declared the Constitution of South Africa to be unconstitutional,' which
I think is a unique jurisprudential and political event in the world. This
afternoon I want to explain how this unusual thing came to pass.
We go back to 1990. We have to shift our country, which at that
time was the epitome of division, repression, and injustice, a point of
reference for anybody who wanted to condemn anything in the world. It
was the country that introduced the word apartheid to the English
language and to international human rights discourse. It was a country
that sent death squads across its borders to hurt and to torture people to
death and that had an organized system of repression that extended into
every village and into every nook and cranny of society. It was a country
that was racist, authoritarian, and narrow. This very South Africa had to
be converted into a country-with the same people, the same physical
terrain, the same resources, and the same buildings-into a country that
was democratic and respected human rights. It had to be a country where
people of widely different backgrounds would respect each other, where
* Justice, Constitutional Court of South Africa.
1. See Certification of the Constitution of the Republic of South Africa, 1996
(Constitutional Court of South Africa, Case CCT 23/96, Sept. 6, 1996) [hereinafter First
Certification Judgment] (on file with New York Law SchoolLaw Review); see also Lynne
Duke, South African Court Orders Revisions in Proposed New Constitution, WASH.
POST, Sept. 7, 1996, at A18.](ViewImageLocal?handle=hein.journals/nyls41&div=34&collection=&method=preview&ext=.png&size=3)
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The Creation of South Africa's Constitution
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