Justice Albie Sachs
Justice Albie Sachs, former chief justice of the South African Constitutional Court, visited Nepal in November 2009 and met Constituent Assembly members, the judiciary, political party representatives and others supporting the constitution building process in Nepal. Justice Sachs' visit was part of the International IDEA Nepal project's south-south exchange component.
IDEA’s Bal Krishna interviewed Justice Sachs on 20 November 2009, where he shared the South African experience of constitution making: how difficult issues were dealt with and how crises which threatened to derail the whole process were eventually managed. His views resonated well with the Nepali audience due to the similarity in the overall process.
Q: Nepal has come out of conflict recently, and has been paving its way for lasting peace and democracy. However, as is evident from other examples throughout the world, Nepal is no exception: people expect magical solutions to all their worries instantly and immediately after the conflict. In Nepal, people believe that the Constitution will bring about an 'ideal' Nepal as a functioning state and society, and manage to address all the past wrongs. With this background, can you please tell us about the form and degree of expectation of people in South Africa and how that was dealt with?
A: In South Africa, peoples' expectations were not for immediate material improvements, but for dignified citizenship and reconstruction of the institutions of the society. Also, they were for dealing with divisions, and injuries of the past; and creating foundations for improving the lives of the people.
We had to amalgamate the armies, completely reconstruct the administration, integrate the tribal areas, and to get the black and white ready together to run the same government. There were many people in white community who were extremely fearful to be governed by the government led by a black person. This was a huge project in itself.
It was a period of confidence building, training people who had been excluded, ensuring greater participation by black people and women of all races in government, making plans and programmes to improve living conditions, etc. While some programmes were broad economic programmes, others were specific ones like ensuring accessibility of electricity, clean water, telephones, having paved roads in poor/rural areas, getting place/system to send and receive letters, etc. There was a massive re-housing project, where people moved into brick homes. As of now, the housing project is 12-years old. The achievement is that we have two million homes added, where 8-10 million people have moved. Thanks to the subsidized government rates. These are the visual signs of the sincere effort, and all of these have been successful.
Justice Sachs with President Ram Baran Yadav at the office of the President, Nepal
However, there were some problems too, like people getting homes, but not society; cases of corruption while building these infrastructures; people selling the subsidized houses, etc. But while comparing between the successes and the failures, the former seems to heavily outweigh the later.
Q: It seems as if the people had realistic expectations, and at the same time, the policy makers and administrators were also serious about meeting those expectations.
A: Poor people in particular are very patient. They do understand that process like this takes time, and they use their money very carefully. Therefore, what they do not want is corruption and dishonesty. They were very cautious, because they had been disappointed many times. They wanted integration. They did not expect the Government not to make any mistakes at all, but honest mistakes. They wanted to get involved in the programmes, and not just be the recipients.
Q: It seems that the post-conflict period focused basically on confidence building measures. How did those who had been enjoying the larger part of the pie react to this, and how were they brought onboard?
A: The largest party was African National Congress (ANC), and it played a very important role in getting trust from those who feared that they would be totally dispossessed. Those who had racist mentality could not imagine the black people managing the government, intelligence and other sectors. The ANC did not become submissive while getting them ready for negotiations, but it was the approach that worked. Their style of work: engaging them in regular discussions and consultations, the language used, the level of efficiency they worked with, and then giving them a situation where neither side considered the other to be 'enemy', etc, were some of the remarkable efforts to achieve this. Reciprocally, the leaders from minority also collaborated and suggested ways for their dignified living. Public hearings were held, where people from different sides participated.
The confidence building also came through the way the structures were, and refraining from telling the people not to panic. Telling people not to panic should be the last thing to say, because, immediately people would start visualizing hypothetical problems and differences. That is the South African experience.
Q: Would you like to comment on the Nepalese peace process, through your South African lens?
A: Comparatively, problems in South Africa were extremely severe. Unlike Nepal, there was a complete breakdown in South Africa. However at the end, we worked our way through and we got a constitution.
Q: The Constituent Assembly of Nepal has come up with a draft on Fundamental Rights of the People. Some analysts believe that the articles in it portray Nepal as a welfare state in theory, but the implementation would be constrained by the shortage of economic and other resources. In South Africa, you too had the Bill of Rights. What was the rationale behind it, and how were the rights implemented?
A: People who put hardest efforts for freedom were mostly the poor. It was very important for us to have certain economic rights through constitution. In order to be realistic and implementable, the constitution directs the state to take reasonable legislative and other measures, in its available resources, progressively to realize the rights.
Chair of the Constituent Assembly Subash Chandra Nembang with Justice Sachs and Leena Rikkilä, International IDEA
Constitutional Courts (CC) sometimes reminded the State its duty to do something about the terrible conditions in which the people had to live. However, the court generally did not interfere provided that the measures taken were progressive, broadly reasonable and reachable with the available resources. Also, to mention that there is no legislation that allows the court to make an order.
However, in one case, when antiretroviral drugs were being given free on a test basis by the state to women in 2 sites in each of the nine provinces, the state maintained that it could not be given for free to others who did not fall in the selected category. But the judiciary intervened, and said that the restriction to just two sites in each of the provinces were unreasonable: the drug was available, the doctors could manage administering them, and people wanted it.
In another case, where thousands of people had been evicted and had no homes, had been living in open fields. The judiciary intervened. However, here, it did not order homes for them, but ordered the state to have a programme to deal with the emergency situations. It also asked the state to come up with the means to finance it.
Normally, the court does not intervene when people have the basic rights. However, if the government lacks laws for implementation of the provisions under the bill of rights, the courts have and can compel the state to have a law.
Q: Civil societies in general are a watchdog, safeguarding peoples' rights. What was the role of civil society organizations and NGOs in South Africa in the post-conflict period?
A: The Civil Society Organizations, the NGOs working in legal fields, and the established working lawyers with pro bono prepared the cases well. We also have a body working for rights of women. We have university law clinics. They all bring cases to the Constitutional Court (CC), and the CC does further tasks to ensure that the peoples' rights are upheld.
Q: Do you have any message for Nepal?
A: My message to anybody, negotiating anywhere is to have patience: it holds the key. Secondly, never be off sight of the principal goal: an enduring constitution for your country.
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