What a bit of dignity teaches us

He was once a prisoner at the mercy of the law. Now he is a judge who makes it. Albie Sachs tells Chris Bunting about justice and human rights in South Africa.

Every afternoon, Albie Sachs listened from solitary confinement in Wynberg, South Africa, to boys as young as eight being beaten by groups of laughing policemen.

The screaming was relentless and the beatings so hard that he saw splinters of cane littering the passageway when he was allowed out for exercise afterwards.

And yet he could make no complaint to the judicial authorities: the thrashings were being administered to the letter of the law, according to the sentences of magistrates.

That was about 40 years ago, near the beginning of a long fight against the apartheid regime.

Justice Albie Sachs, now a member of South Africa's constitutional court and one of the authors of the country's new constitution, carries with him an acute awareness that the rule of law can be an instrument of brutality as well as justice.

"I was detained without trial for 168 days, cut off from the world. It had been done in terms of a statute. I had no rights. I used to hear the juveniles being caned - that was also done in the name of the law and I felt a certain measure of rage against my own profession," he says.

Justice Sachs has seen more sides of the law than most supreme court judges. He worked as an advocate at the Cape Town Bar during the 1950s and 1960s. He was twice imprisoned by the South African security police because of his anti-apartheid connections and has written a moving account of the effects of solitary confinement in his book The Jail Diary of Albie Sachs .

Forced into exile, he worked as an academic lawyer, first at the University of Southampton and later as professor of law at the Eduardo Mondlane University in Mozambique.

Then, on April 7 1988, he became a victim of crime at its most cowardly when South African agents blew up his car in Maputo, Mozambique. He lost his right arm and the sight of one eye in the blast.

A man of quiet jokes and eloquent intelligence, he is now, at the age of 65, watching the legal theory he taught in exile and the ideas about justice he developed in half a century of fighting apartheid contribute to a constitution he proudly describes as "one of the best if not the most advanced in the world".

Visiting his old academic stomping ground at Southampton during a Constitutional Court recess in October, he talked about his fight to reconcile justice with the rule of law in his native South Africa and had a few provocative words to say about the British legal system's attempts to grapple with the same issues.

"As a young man at the Cape Town Bar, I used to love going down the corridors, over the mosaic floor in the Supreme Courts. I would go flying by in my robes and I would really feel somebody. I loved the cut and thrust of debate and argument. It was a very legally dense environment. It is no accident that two members of your House of Lords practised at the bar in Cape Town.

"But, at the same time, the courts were totally white-dominated. There were strong judges who made a stand, but the laws were used to force black people to carry passes, to evict them from their homes, to deny them the right to work without permission, to criminalise love between black and white. It was all done through the law.

"That is the dual nature, the Janus-like quality of the law. The problem is to distil and structure life experience as someone fighting for justice in a way that fits into the values of the law."

When Justice Sachs talks about life experience, he does not mean time served as an advocate or on the bench. He means the kind of experience he had when, as a law student at Cape Town University, he visited township study classes after lectures: "I would be sitting in a shanty lit by candle light. You could just see people's eyes and cheeks and they were so full of passion for justice. I began to feel the real law was in the hearts of the people."

This identification of justice with the thoughts of ordinary people has filled Justice Sachs's writings, legal as well as autobiographical, with simple language. Concepts such as honour, honesty, humanity and equality crop up repeatedly and one word, dignity, has become a central theme.

"That is the dominant word. The passion of the people in South Africa wasn't to be able to measure up to an idea. It was to be able to live with dignity and that means dignity for all. It is for the oppressed and for the former advantaged," he says.

Dignity does not just mean rights to free speech, a fair trial and the right not to be brought to the brink of physical collapse by torture, as Justice Sachs was by the apartheid police. It also, he says, implies fundamental economic and social rights: such as the right to a roof over one's head, to an environment that is not harmful to health and to an education. Such rights are laid out in many constitutions, but often merely as guides to government action. In South Africa, they are fundamental rights enforced by the courts.

Justice Sachs and other members of the South African Constitutional Court have elevated the idea of dignity to a judicial philosophy in their implementation of the new constitution. He calls it "dignitarianism": it rejects a narrowly individualist restriction on the state's right to act on behalf of hugely underprivileged sections of South African society, but at the same time recognises individual autonomy.

It is a charter for judicial involvement in everyday questions of political policy-making that would have a traditionalist British MP shaking in his boots.

The Constitutional Court recently ordered the government to change its massive low-cost house building programme after a group of 1,000 former residents of a squatter camp, forced out by terrible living conditions, brought a case claiming the immediate right to adequate housing.

The justices ordered that the long-term solution of building millions of houses would have to be accompanied, and perhaps delayed, by emergency provision for the poorest members of society.

"We have rather timidly, rather reluctantly, picked up the judicial pen and started writing. Once you start doing it, you start enjoying it," Justice Sachs says.

He acknowledges the differences between the role of the judiciary in South Africa, where a strong and broad bill of rights is seen as vital to reconciling majority rule with all sections of a badly divided society, and its place in societies with firmer democratic foundations.

"Our constitution plays a role that is far more significant than Britain's new Human Rights Act could be, and happily so, because Britain is a country where there is generally a culture of respect, where there are vigorous institutions with long traditions."

But he also points out that "far from the UK being so super abundant in respect of human rights that you can export human rights to other less-endowed countries, one finds that the UK has lost more cases at the European Court than any other country.

"Prisoners, in particular, have been very vulnerable in Britain. When I taught criminology at Southampton (in the 1970s), we went to visit a number of prisons. I was very disturbed by the atmosphere there and the feeling of lack of dignity and rights."

The implementation of immigration laws is also an area of concern. He remembers one of the most ardent arguments for fundamental rights he has ever heard came from someone working with the traveller community in Britain who felt the rights of marginalised groups were being ignored.

"At present, our court very rarely finds itself looking to the decisions of the British courts to help us, whereas we are constantly looking at decisions in, for instance, Germany or Canada."

But he is optimistic: "When the extraordinary legal aptitude in Britain is applied to rights concepts, not at the margins but in a more fundamental way, I think not only will British society benefit but the whole world. I look forward to reading the judgments of your courts."