- So I think we should start. Good afternoon, everybody. There's barely enough time with such a huge figure, who's had such an amazing life story. Very unusual for a judge, I might add. Most judges are extremely dull. (laughing)
I speak as a former judge and what
makes them interesting is their intellectual life. But their lives aren't
all that fascinating and every life is valuable, but your life. My goodness! So this is Justice Moseneke. Welcome to Duke Law. I know you've been over here, several times already, but, what an honor to have this person of such great humanity here with us. So welcome. - Well thank you so much, Mr. Levi. Privilege to be here. - Well and, you've written
this wonderful book called, "My Own Liberator," and many of you probably have seen it, maybe
some of you have read it. I have read it. And with such tremendous
enjoyment, well done. This is a really great book. Tell us about the title. - Oh, okay. You start at a difficult end, didn't you?
(laughing) Titles come usually at
the end of a manuscript. You scratch and scratch
your head wondering, "What am I going to call all this?" I left it to the end, and thought, it's really about how you get out there and make sure that you liberate yourself, in multiple ways, at very many levels. The more obvious one being, the duty I thought I bought
to liberate myself from, colonialism and apartheid. I always understood that
I am my own liberator. I'm the guy who's got to do it. Obviously, initially alone,
together with others, so individual agency
and collective agency, intersect somewhere, where
you organize with others, to resist a bad regime. But also you individually, can outsource that obligation. In the end, the line
yeah, dropped somewhere. You are your own liberator. There came the title. "My Own Liberator." - What emerged to me, from the title and from the experience, was that because you had
been your own liberator, when you moved to a
constitutional democracy, you were able to, in one sense leave the past behind and engage with people on current terms, as opposed to feeling the weight of this history on your shoulders. Is that a fair statement? - Yes. Really this was not original. Obviously, I would've grieved
10 years on Robben Island, at the age of 15. My captors weren't kind. You found the details in the book. So it wasn't fun, to be on Robben Island for 10 years, as a juvenile, from 15 to 25 years. - That's a long time. - That's a long time. But I drew courage from that fact that, Nelson Mandela was on
Robben Island for 27 years. Nearly three times my term. He comes out and says to us, his new turn ins, "We have to spare our energy
for the reconstruction. "We've got to refocus
on the reconstruction." In other words, migrating our society from a horrible, horrific past, to hopefully, a more just society. That you're going to do by focusing on the
quality of the transition, the mechanics of the transition. And the end goal, to re-order, to banish colonialism and apartheid and introduce a more just society. But more importantly, to be different from apartheid. So we would not re-enact our unequal past. It didn't make sense. Spending all our times, collectively being our own liberators and then immediately seek
to do what apartheid was, which was bankrupt, in many, many ways. So yes, I mean one refocused on, as you notice, I'm not debating
questions of forgiveness. We can debate that some other time. I'm not talking about forgiveness. I'm talking about the need to take the
positive out of it, i.e., to reconstruct. And that's really what we did. - You mentioned Robben Island, but let's talk about that because it's such a big part of your history. And confusing in a way, because, it was terrible, but you talk about the joy you experienced there as well. So you were arrested
and convicted at age 15. How did that happen? - We were high school students. We understood, I understood very clearly, even from the age of 12, 10, just of the injustice
of an unequal society. A separated and segregated society. Now you need to be a victim of that to be able to take it in fully. But as a young person, I can't explain it why, but my sense of injustice was heightened and I was appalled by the fact that, my school precincts were so much poorer, than the school precinct on
the other end of the town. I was just totally unhappy that, the two towns were different, unequal and separate. I was just unhappy that, my people were kept completely out of any political activity. I didn't talk much in the book, you remember I talk about, being young and, much older now with grandchildren, I would test them all the time, with sweeties which I would
spread around unequally. Give you three sweeties, five
sweeties, seven sweeties, 10, give you nothing. And they'd come, I've
got six grandchildren. Three from my daughter, three from my son and their spouses. They'll all come back to me, "Grandpa, are you off your mind?" (laughing) "You gave her nine sweeties
and you gave me nothing." "I got two, Grandpa. "Why is he getting seven? "What for?" It's fun, because it just reaffirms, (laughing) my position that, a distaste for injustice
is native, is innate. It sits in all of us and one day, be kept out
on account of how you look. Your gender, your sexual orientation, whatever else, and you'll
know just how it hurts. It's horrific. So it wasn't too much for me
to decide my duty in life, is to destroy apartheid. - So you were engaged with
some of these student groups. - Political activities. - And you were swept up, - Yes.
- And, 10 years is a very long time. You mention that the
judge who sentenced you was later a judge, a fellow judge, on your court. You saw him having tea one day, but I don't think you interacted. - Yeah.
(laughing) That's true. Well, you see he was old
then, he was (mumbles). I was young and ready to go. - Yeah.
- You know? I was in my 40s. He was probably in his 80s. So it's quite a difference. - Yeah. - And I came in as sort of like, the new young lion, within a democracy,
having defeated apartheid and reconstruct a new society. He was on the way out. In the tearoom, I saw him giving one look. I thought, "I'll have to get the courage "to go and greet him,
but I'm not going to." - Yeah. - Waste my teatime. (laughing) on him, you know?
- Yeah. Well that's the kind of person you are. So, on Robben Island. This was horrible for a young person. It was maybe even worse for your parents. You describe your father was
just so saddened by this. But you made the most of it. - Yes. Again, I don't know why, how and where the insight came from, but my common sense was one, survival. Two, my mother and father were teachers. So I knew that I had to study. I was arrested in high school. I was picked out of a class. So too my colleagues. So natural instinct was to, want to study. We had to pick up a fight as you know, 18 day hunger strike and
fight the authorities and make sure that we
have a right to study. Which we earned. And wa-la! I mean there are a number of
features about Robben Island. Robben Island is a political
prisoner facility only. So if you take 4,000,
5,000 political prisoners, put them together, you validate their position. We regrouped and we started
reassuring each other, that in fact, we're going to overcome and that apartheid is bankrupt,
stupid, it's mindless. Human beings are human beings. And that in fact, we have
to reorder our society and make it more just. So that energized us incredibly and we set up, we often called it, us, a
university on Robben Island and we started a reading club and allowed us to order
books from a public library. Of course, Das Kapital, would've
come running very quickly. His translation in English, Adam Smith, World of Nations. But in no time reading
became par for the course. You had a hard day of hard labor. Those days where you're
compelled to work for no pay. Was part of your sentence. 10 years with hard labor. So you work compulsorily. I describe how you push around stone, break up stones, get to the quarry and so you end up, at the end of a day, you'd have a nice three,
four hours of reading. And we had a relay as I
described, they are reading. You would take, an example
would be Grapes of Wrath. You'd remove the binding, and as I say, you push the pages, every 10 pages. I'll keep 10 pages, pass them on, you pass them on and we read around in a
merry go round of sorts, the book is done and then we
have a literary club discussion about a particular work. I would pick up Anna Karenina and go and read Tolstoy or Dr. Zhivago. Okay, or, so you would
actually go and pick up books that we thought would
speak to our circumstances and indeed, (mumbles) for university. After having qualified for advanced admission, college admission. While studying on Robben Island. So did others. So the place was turned into unbeknown, well, the authorities knew, but they did not quite plan for this. That we actually
preparing revolutionaries, to have the tools to overthrow
the apartheid regime. So in many ways, we turned it upside down. I must say, I was young. I had no wife, I had no pets. I had no girlfriend, I had nothing. I had parents who were relatively young. So it was quite easy to
focus on the job at hand, which is to do a degree
just you know I did one in political science
and English literature. Got it behind us after three years and go on to a law degree
and ultimately, an LLB. Which is the equivalent of a JD. - They wouldn't let you take
graduate work, apparently. So, you could take a series
of undergrad courses. In the British system, law is an undergraduate major. So you did that. - Yes.
- You took a degree in law. - Yes. - You remark in the book, that during your time there,
you were hungry all the time. I think even despite the hunger strike, which was that's a very long time. - Oh.
- Very long time, not to eat. But you were a young person. You were growing and they didn't
not give you adequate food. - No the food was very little. I think it was prescribed
by the district surgeon, a government doctor. And that recommended so
many ounces of sugar, you know how many fluid ounces of coffee. Half a cup of oatmeal
in the morning, or meal. If you're 15, I don't know if some of you have teenagers in your homes. Very young boy and girl, you
get into the refrigerator and you clean it out. (laughing) I used to do that before I was arrested. I got arrested and suddenly
three meals a day, bang. No dessert, no cookies. I saw some cookies around. Floating around.
(laughing) You got three meals which are all measured and they were, every time after a meal, I felt so hungry. So what I remember about my
10 years on Robben Island is, is that teenage hunger. Every time after eating,
my stomach was like empty again and was purring. Prr, like. You need more food and there was none. I think if I had, I'd probably be twice taller than what I am now. (laughing) - But even on the food, apartheid. You got more food, depending on your race. Less food, depending on your race. - You know, that's a horrific system. Totally horrific. Apartheid was meant to divide people from birth to death, even the
grave sites were different. Of course the maternity
halls would be different. Everything else in between was separated. So we get to prison and we find they give us a diet scale. You look at it. I don't know whether it's
the top or the bottom. But A diet was for white women. Women of European extraction. B diet was for males
of European extraction. C diet was for women who
were classified of mixed race and or Indian or Asiatic. D diet was for Indian,
mixed race, Asiatic males. E diet was for African women. Aboriginal, African women. And F diet, was what I got. You can see how low in the rung, I was supposed to have been. But that's how meticulous
our oppressors were, about notions of race and immutable differences that human beings are supposed to have and that you ought to
take time and energy, but what's more, make laws. Because apartheid was oppression by law. So this was, and we challenged it, it would produce a law
of act of parliament, which says this is the food
you give to African people. This is what you give to white women, who are called European women. So, in Africa. But that was the whole range and they continuously
served food on that basis. So by the time you got to F, the food was so little,
I thought I would die, you know, just out of hunger and which even aided the hunger strike, being hungry already when we started. So the transition was
not that big after all. But actually, the human body can take quite a lot of deprivation. We eat more than our body actually needs. - Yeah.
(laughing) So it would appear. (laughing) So you left Robben Island at age 25, with the determination to be a lawyer in an oppressive regime. You could've left the country. You could've done other things. But you chose to be a
lawyer in South Africa. Can you tell us about that? - Yes, the trend at the time
was when people came out of Robben Island, obviously,
they would go into exile. And join liberation forces, armed forces. I remember at a certain point after 1960, the decision was to embark
on an armed struggle against apartheid, but also
to rule internal insurrection. So there was going to be a town uprising and there was going to be an
external military assault. Besides the diplomatic efforts, the anti-apartheid movement, which was quite strong
even in this country, for that we are grateful, but certainly not in the
mind of Ronald Reagan. I mean he obviously supported
the apartheid regime, or Maggie Thatcher, who
supported apartheid government. But certainly the people of
the U.S. themselves and the UK and Europe we had a strong support of anti-apartheid movements,
across the world. So it was a combination
of all of those forces, that would bring apartheid down. I chose to remain inside. I chose that I would
actually push the system to admit me as a practicing attorney. So I reached out for apprenticeship. I (mumbles). Given all the impediments I had, I was first in my class, nationally. I wrote (mumbles) exams
and I was better than everybody else who wrote it. And 99% were white. Applied for admission. Because I didn't want any impediment that says you are second in class. Applied for admission as an attorney and the law society objected. Amongst others, on the
grounds that I'm an ex-con. And whether there is any moral turpitude on my part and my argument
was uncomplicated. "No, I'm at the height of my sincerity. "I seek to dis-establish an unjust regime. "A minority regime, that
oppresses the majority, "for reasons which are totally invalid. "And no, I'm the good guy." (laughing) "So you see judge, you and your
government are the bad guys, "I'm the good guy." Fortunately there was a
president when Nelson Mandela was convicted in 1952 and was an attorney and I put up the same argument, so it wasn't quite an original argument. It was that there was no act
of insincerity on my part. If anything, I was asserting
my humanity and my rights to be governed properly. Not in those words, but the three judges, it was a three panel judges. Bought the argument and I
was admitted as an attorney. Then came to the point of practicing. Yes, I decided I'm gonna
practice in South Africa. It was a complicated affair. Let's try and describe it. Every element of apartheid was through the law. As I said, as oppression by law. Not to be confused with the rule of law, 'cause it wasn't. It was ruled by law. Parliament was sovereign. So parliament could
make laws to any effect, like, example I gave you
about the scale of food, in prison, that laws that
women and only truth is is what men had, for
instance in apartheid. Men and women could not
get permanent posts. Soon they'll be pregnant
and they'll have to go away and you have to find substitute
for them and therefore the law prescribed that you don't employ women who are married. The whole range of
inter-sectional oppressions that came out of all of this. It was a heathen system, actually. So, how do I practice law? I wasn't original to this, because there are a number
of progressive lawyers. White South African,
with progressive views, who also practice law
within the same setting. So too other black lawyers. The strategy was uncomplicated, frankly. Every single time you seek to find a procedural foible, a technical weakness, what I call the soft belly of the beast. If the rest of the business
solid in its ramification, you can look at the soft end of it. I can give you several
fascinating examples of that. There's a law that
permitted the government to remove African people
forcibly from their homes, without compensation. What I would do, is to
go and follow the trail, of the proclamation. Where was it issued? By whom? After which procedural process
that had been followed? Was it gazetted? If so, there was published open
claim, was it done in time? Was it published in all
of two official languages, simultaneously? You'd be surprised, if you
follow that whole chain, there's much between the
cup and the lip (laughs), that drops and if you pick that up, because they're such a
technical rule based lot, it's sufficient to set
aside that particular order, that sought to remove a whole community and hand over their land to white farmers, or to white residents. In the process of spatial apartheid. Spatial apartheid. We often would find that. I mean, one fascinating
example very quickly, in terms of an activist arrested,
called Richard (mumbles), I say a little about it in
there, you'll remember, David. And, he gets detained in a prison, and the warrant of his
detention of the Emergency Act, said he must be detained
in a police lock up. I ask his wife, where he is, she says, "No, he's in a prison facility. "A correctional facility." "What?" So I looked at the warrant again. Their principle says
warrant is something that limits the liberty of a citizen and it ought to be construed
in favor of libertatem. In favor of liberty. Not my principle, their principle. And Rosen called and
say, "Here is a warrant. "Improperly executed." Not only must you execute a warrant, write it out properly, as you implement it, you must implement it in strict compliance with its terms. And he was kept in a police
lock out and not in a prison, and my lawyers would say, "My jurisdiction, not my honor." So you should be calling me my lord. (laughing) - I'll be happy to. (laughing) - The detention is unlawful. It's plainly unlawful. So the place, you could have
been in this guy's chicken run, it could've been on his farm, it could've kept him in his motor car, bonnet, whatever. So clearly, you must keep it in the place specified in the warrant and he was released immediately. He skipped the border and
disappeared from South Africa. So, that's an example of how
you would meander your way, through a blatantly unjust
system and yet bring relief to your clients and to
people who need the relief and quite often, the second part was, court cases where a platform for exposing the inhumanity of a system. - You use the rule of law,
against the rule by law. - Yes indeed.
- In one sense, yeah. - Yes indeed. - So you went on to greatness as a lawyer. You took Silk. You became a justice. You did some other things, along that run and I know you've written another book now about your time, as a
justice and as a judge. It's not out yet, but
we look forward to it. (laughing)
Why don't we, you had a relationship with
Mandela as you've mentioned. Nelson Mandela. You haven't mentioned his spouse yet, but they were clients. They were mentors. Tell us. You're an executor of the estate. - Yes. Yes for all my sins, in fact this morning, I got a letter from the
receiver of revenue, questioning whether
Mandela had actually made certain requests, whether
he'd actually paid out his children before he died. And whether that amount should not be subjected to normal tax. Well it's taxable in the
hands of Nelson Mandela, or in the hands of the heirs. Only this morning I got a note like that. How you going to respond to that? Nelson Mandela was, my father's age. He was on Robben Island, in a
section different from mine. I was in the general (mumbles) section, the non-leader section, small little boy. But over time, I think
he came to hear of me and I knew who he was. So by the time I came out
and became an attorney and became a counsellor, I was one in a panel of
lawyers that he often asked to do things for him. One of those was to look
after Winnie Mandela and to defend her and so did Judge Bizos, so did Arthur Chaskalson,
who became our Chief Justice. So we're about five or so trusted lawyers. (coughs) Excuse me. So I was in there and my first task then was to
defend in all of its turmoil, Winnie Mandela, his wife. Very, very beautiful wife. Who, was a freedom fighter of real note. She was quite a fiery human being. She was fearless. Near totally fearless. And quite extreme in the
views on many fronts. But be that as it may, it really meant that she would defy her banning orders quite often. In South Africa, some
call it banning order where they restrict you to your home and she would get out there
with her fist up in the air and she would, and the
police must have arrested her and the camera people are there and TV cameras rolled and so on. So, it was my job to intervene. To appear in court. "May it please the court, my
Lord, I appear on behalf of "the defendant and apply for bail." She would repeat that over and over again and,
(laughing) I would have to defend
over and over again. So that got me quite close to the family. He was released and I became
one of his key troubleshooters and that is why in part, Arthur Chaskalson, we
were roped into write with the drafts people
for the constitution. So as fate would have it, the one moment you're really a slave and saying, "I'm my own liberator. "I've got to liberate myself." The next moment, you
are a founding father. (laughing)
You know? We have founding mothers too, by the way, in our country, unlike you. (laughing)
So we have founding mothers and fathers. And,
(mumbling) (laughing) - Oh they just not mentioned,
they were there, huh? (laughing)
(mumbling) Okay. We have lots of founding
mothers and fathers. But be that as it may, our task was to write down
the deals that were struck in the negotiations. And to write them in
constitutional language. And in ways that would
encapsulate the agreement. But essentially, to
reconstruct a democratic state. So, I was invited by him personally and therefore, went out to
write our interim constitution. It was an huge privilege. From being a prisoner on Robben Island, to now, I'm called upon and we vote upon by all the parties and the parties felt I would be one of the good guys, to do this work. After of course, I was invited by him, Nelson Mandela, to be
the deputy chair person of the electoral commission, that ran our first democratic elections. So you can see the
connection running there. Sadly, when he was to
divorce with Winnie Mandela, I became Winnie Mandela's lawyer. We had a big fight
about who's lawyer am I? (laughing) Am I Nelson Mandela's lawyer, or am I, and she insisted
I was her lawyer. Then I had to be on her
side in the divorce. Which was quite a sad moment. She hung around for 27 years and so on and in the end she lost
out, in the sense that, our president had decided to divorce. - There was sort of an,
and I will call it amusing, maybe it wasn't at the time. She was a minister and she
broke a rule that he had and, - Oh you're right there. (laughing) - You got caught up into this, because he wanted to fire her. - Yes. - They were still married. - Yes indeed. Immediately after the transition, he, Nelson Mandela, appointed his wife to be a deputy minister,
or an associate minister in his cabinet. In a usual recalcitrant way, the rule was no cabinet
minister travels abroad, without the President's permission. Now Mandela is a big chief. But in the interim constitution, we got the transitional constitution. Mandela may not rearrange his cabinet, without consulting FW de Klerk, and Mangosuthu Buthelezi. Who were sort of like deputy presidents. That's part of the compromise, during the interim. Nelson Mandela heard that Winnie
Mandela had gone to Ghana. When she came back, he fired her point blank. Obviously the relations had
really soured between them, but (mumbles) relations also, and she was fired on the spot. And guess who get called up and woken up (laughing) to settle urgent papers to
seek an urgent interdict against the President. Now I am now counsel to interdict the new democratic, you know,
President of South Africa and who's Nelson Mandela, for whom I've done a lot of work. Winnie insists that I've
never been his lawyer. He was in jail and I was always like, "Hello young lady. "I must do my duty." Which I did settle papers and showed that in fact, Nelson Mandela had not
acted constitutionally, which was not difficult. The constitution was quite plain. You may not alter the cabinet
without consulting the two. I've got an affidavit
from Mangosuthu Buthelezi, that he had not been consulted. It was the end of the story. (mumbles) was acting for
the President at the time. When they received the
papers served on them, they threw in the towel, tendered to pay all the costs and to take her back onto the cabinet, which was done summarily and publicly. We insisted that he must announce that he's going to re-employ her, 'cause Winnie Mandela demanded that. She was fired publicly and she was to be re-employed publicly. Within 48 hours, the President
followed the procedure, that's required by the
constitution and fired her again. So we lost anyway. (laughing)
And we had no case to stand upon. - So you mentioned your
role in the transition, which was you had a huge
role and the two aspects that you highlight in your memoir, are the oversight of the first elections, first democratic elections
and I'm sure that was just an enormous responsibility. Then the second was your
role as a drafts person, as a Madison. A writer of the constitution. Maybe it would take them in that order. So the electoral
responsibility came to you from Mandela and this was huge. - Yes indeed it was huge. Remember how I described how he followed me up into a bush camp and said, "I'm glad I found you. (laughing)
"But you have to pack up." I was with my wife and
children and we're to stop the holiday and go and
prepare to run the elections. Again, a big, huge privilege, that came after writing the constitution. Remember what we did. Which is quite fascinating and that's why the South African
transition was so special. We agreed that we would do it, the transition will be
within the purview of the law and that we would draft the constitution, in the form of legislation and the minority apartheid government, would basically have to swallow the pill. It will have to pass legislation illegitimate and minority as it is, dis-establishing itself and passing a law that would, (coughs) excuse me. Establish a democracy. So these parliamenters
went to agree to do that. That was part of the deal. Another way, was simply, to dissolve parliament, in an anarchist way,
would've had no transition. Would've had no, most of the
institutions would have been basically in a state of stress. We'd have had to start all over again. So what we did was to make sure that we have
an orderly transition. And the minority would dis-establish the apartheid parliament and by law, would say that from day X, this will be the new
constitution of the country and we shall be interim until
you have a final constitution. And also to set a date for the elections. So there we were, we
were set for elections and again, elections were under law. So in many ways, because Mandela
and his clerk were lawyers, and we were lawyers ourselves, the new tenant around him, this whole transition, which otherwise would have
been bloody and dangerous, was encased in legal processes. And that we adopted a charter fundamental rights and freedoms, peacefully, within a
setting that would totally disassemble apartheid. So in many ways, it was
an incredible achievement. To therefore talk to (mumbles), which used principles of law, in order to re-create an
otherwise unjust society. Of course the elections, meant so much. Up to then, only three
million white South Africans, were entitled to vote. In fact, we were a
country of like 40 million and 22 million adult Africans, under the new constitution,
were entitled to vote. So suddenly you had to roll out the voting machinery to
accommodate 22 million people. We didn't have time to
prepare voter's roll. So it was quite an operation and to get for instance, ballot papers printed
outside of South Africa. I think we went to the
United Kingdom and Canada. Somehow, we didn't come to you guys. (laughing) - You didn't want floating
(mumbles) chads or what not. (laughing) Have some ballots left over from 2000. - Yeah, so.
(laughing) And your government that
time was not overly friendly, I think, towards what is
called terrorist forces, us, who were trying to liberate South Africa. So in any event, there we were, all set to run the elections. They were not perfect. Some procedural elements were breached, as we went along with the elections. But substantially, they
were free and fair, without a doubt. Nelson Mandela emerged as President. So, in that sense, I was his vehicle, or part of his vehicle
for becoming President and a vehicle of our people, for establishing a democratic country. - The legitimacy of the
election was critical. - The legitimacy of the elections
was quite, quite critical. Think about it in 350
years, almost 400 years, it was the first time that
we had a common voter's roll. Ever since colonial times and the first time South
Africa had a bill of rights. It was the first time that we introduced a whole range of mechanisms
that we can talk about in a law class anytime. When we introduced (mumbles), when we introduced a whole range of tools to deal with a rise culture. And that we carefully
spent time to write up and make sure that everyone can pick up the constitution and just read it out. - So writing a 20th-century, a late 20th-century constitution, that's quite a privilege. Did you have models that
you were working with? - Yes. Yes indeed it is quite a privilege. I can't resist of course
repeating justice, Ruth Bader Ginsburg's words. The Egyptians ask him, where should we look to
for a new constitution we might write? And she said, "Certainly not the U.S. "But certainly South Africa, or Canada." So we framed that, we put it up on every wall.
(laughing) She's always been a long
friend of our country. In fact, she became justice in residence, at our courts, many years ago. She came out to visit and
also justice in residence. So if you think I admire any justice, it's certainly her, this court
together with Justice Breyer. And more recently Justice Sotomayor visited us in South Africa. So, they are part of our blessings, when other people noted
and said, "Well done." But it was a constitution, we looked to the U.S., quite hard. There weren't many examples to find. I'm sad to say that to yourselves. Your constitution is, very sparse. It says very little, actually, in relation to what we intended to say. It has been one of the oldest and the most veritable constitutions, but certainly not a modern constitution. We looked a lot to Europe and to look at new
constitutions in Europe, in Latin America. The trend, and certainly in Canada, particularly their amendment
of the chapter three on fundamental rights. The new trend is one to be explicit. To say the clearest terms. What you seek to provide for. The second requirement
was that it shall be in accessible language. You're gonna pick up our
constitution and read it, it's bedtime reading, it's
an accessible language. You don't need legal training
to follow what it says. Very few arcane, or you know,
construction of languages. The third thing, were to
make a number of decisions that were quite difficult. Let me talk about my area of work. The courts, for instance. Will we have a Supreme Court? Yes we will. Will it have judicial review powers? Yes it will. That's inevitable in the light
of a Supreme constitution and, what size of court will
we have as a Supreme Court? Seven, nine, 11? The Germans had seven at the time. Other countries in Europe had nine. And others had 11. Canada had seven. They said en banc is seven. And we chose 11. The second question was, will it, your justices be for life? Backwards and forwards debate and we looked at the U.S.
experience and other experiences. So we had the benefit of hindsight. We were able to look at
what people have done. And decided that we will have we'll have a fixed term. Maximum of which will be 15 years. So ours, I had to fall on my own sword, because, my 15 years ran out very quickly. (laughing) I had to leave the court, and that's why I'm here. (laughing)
for an extended period. Having recently retired. But I had to leave the court and so did Edwin Cameron, very recently, Justice Cameron. So did Justice Richard Goldstone. So did, so all of us had
to come off the bench and we all felt energized and fiery and at the best of our
intellectual ability, but that's the, we opted for renewal and we recognize that judicial
power is a vast power. If you confer it to
somebody for a lifetime, we would think quite
carefully, what you are doing. We restricted the presidential
term, to two terms, like yourselves, that we copied from you. But two terms of five instead of 10. The term for Supreme Court justices to 15 years, all told. So there was quite an anxiety to find renewal as well as limit, to limit terms in order to
not confer security of tenure. And invite abuse. In that way, we got Nelson Mandela become the first President
after the first term, he said, "Thank you very much." And he left and he didn't
run for the second term. So he was all the time
trying to set good examples, to all of us. He could've asked for a lifetime term. Frankly he would have got it. But he said one term and left. - Well you had some remarkable people and they took you through a transition that could've been very violent and instead, so remarkable. Should we open it up? Should we take some questions? - Yes, certainly. Before I do that, very quickly, I want to add FW de Klerk,
because it'd be unfair not to. He bit the bullet, I mean, he announced that he was going
to release Nelson Mandela. Huge chance. Huge risk. He was going to un-ban all
the political organizations. He was going to employ these organizations to enter into negotiations with him. Shortly after the Berlin
Wall had come down and the Cold War was tottering, obviously, it was coming to an end. He wanted to take also
full advantage of that. But at the same time, had he not done that, we would've gone through
a bloody revolution. Which was bloody in many
ways, already at the time. So I don't want to finish
my little presentation without giving credit to him. He has had a few mis-steps. He talks out of turn. I think he's getting a little old. (laughing) Other day he said he thought apartheid was not that bad after all. (laughing)
That he invited a lot of wrath from many, many people. - I'm sure.
- But he's the man who decided to release Nelson Mandela. The last point is, Nelson Mandela could have said, "Let's murder them." Everybody would've done it. If he had given that order, we would've had a blood bath of no note. Obviously, state power would've been still in the hands of the white minority and they had a lot of big guns. So they would've shot many people. But in the end, we would've won, but with a lot of people dead. So, FW de Klerk was
quite an important factor in helping facilitate
a peaceful transition. I just thought I'd add that footnote. - Today, how does it seem to you? Do you feel you have the rule of law? Do you feel you have a stable democracy, with whatever problems you may have? - I'd say yes. I mean we've had five elections in a row. We have established institutions of state and notably, the judicial
where I've worked for 15 years. And the jurisprudence is
there for all to read and see. It's available. We've continued to receive justices from around the world, to join us and to, to trust and to support us and to validate us and so on. Most of the institutions went right, until very recently. I want to expand on that. I'm sure there'll be questions on that. We still struggle with the full extent of social justice, equality and the historical axis of apartheid. Which is inevitable intersection between class and race and sometimes gender. That still haunt our system. I can talk more about that if people are interested in that. So the biggest trouble
is not the democracy, it's working fine. The biggest trouble is, eliminating poverty. - Questions. - I have to finish your
story about FW de Klerk with what may have been the the greatest under estimation of all time. My father, when I was
a student in England. We used to write letters in those days. He wrote to me and he said,
"We've just got a new person "on the board. "His name is FW de Klerk. "And I think he's a bit of a dope. (laughing) "So (mumbles), he'd be dead." (laughing) I wish I still had that letter. (laughing) - Well his story kind of turned out well. - Yeah (laughs). - He saved us a lot of blood shed. - We have time for one,
really just one question. One special question. Go for it. - Justice Moseneke. You might have noticed, I'm not sure if you have, there's a bit of a crisis
of constitutional legitimacy in the general populace of
the United States these days. As a successful constitutional draftsman, and a founding father, what sort of actual
advice would you give us, as citizens of our country? - Yeah there's an African adage that says, "When you are a visitor, "your horns should be short." (laughing) You know people with sharp horns, animals with sharp horns, normally go and fight other animals. So the saying says that,
"When you're a visitor, "please make sure your
horns are not sharp, "or your elbows are not that sharp." I have to be careful here. I've been fascinated by how the young Americans I have met in classes and I've had the blessing of going to many interactive classes here. Exactly where you are, they're
asking the kind of question that you're asking. Is it a time to reset? Is there a button that
we can press to reset? I taught a class with
Professor Levy, Marin Levy on remedies and we talked about the truth of reconciliation commission and the students came back, very much like you and said, "What should we do? "Did it work for you and what were the "the moving principles,
the animating principles, "and what should America be doing, "to look into the mirror again?" I know one of the candidates
I see on television, does a lot of that. Called Bernie Sanders. He calls up some of the edgy things that might be seen as
symptoms of social injustice, that still pervades your great country. We chose to look into the mirror. We chose to confront the
inhumanity of our system. A true reconciliation, secure (mumbles), military intelligence, police, whatever had to come up and say, "America. "I arrested her, I
tortured her, I raped her "and killed her." Those activists disappeared
and we did this and that, we did, they needed, they wanted amnesty and the condition was
that you tell the truth, fully and frankly, if you
would like to get amnesty and we created panels
of judges to hear out the evidence and whether
it is full and frank. If it is, then you're entitled to amnesty and that also is justiciable. If you thought they would
have amnesty unfairly, you could go to the court,
right up to our court, to review the decision. So, we had a system
where people would come and we had churches for instance, who had killed nobody, but who would come and make submissions, about how complicit
they were with a system that basically annihilated
the humanity of other people. But above all, that exploited
them and rendered them significantly poorer, less educated, less healthy and everything
that apartheid brought to us. There's submissions around the capital punishment, for instance. Apartheid system executed people impulsively and almost
compulsively, as a habit. Execute black males, kill them. And almost unconsciously. They would sentence them to death, every single time and
that's part of the work we had to do, the inside, I mean to basically ward
off people to be hung. In our system you're hanged
by your neck until you died. That's how the warrant read. 'Cause the judge has to
specify the method of killing and I see they do it in this country too. So, we had to confront that. When we took over, we still
had 380, no 480 people in the death row. So we smashed the death penalty. Some Americans have to go and find I think, the martyr of sorts, those wounds that still show. And that contort your society, for this is quite remarkable that as a country of this prominence, you have no charter of
fundamental rights and freedoms. They have to be inferred from a very thin platform. All the world round, I mean, that have inducted and adopted charters of fundamental rights and freedoms. Which we adopted after
the Second World War, right across the world. The old hat, I mean that's where they are. But as you get here, so you have to, Americans
have to go and find, what are the things that might ameliorate, there are many wonderful
and great things here, but there are things that
ameliorate a horrific past. Maybe reparations. I don't know. Maybe a better, fairer
talking about slavery. Acknowledging what it really
was and what it meant. America's relationship with women. Patriarchy. Sexual orientation. We dealt with each of these things and wrote them down in our constitution. So it's not just about race. And took your position as a nation where we are on capital punishment, where are we, so you won't find Roe
v. Wade in my country, because we by one decision, we made sure that women bear the holders of reproductive rights and they make the decision. So each of all those things
that are still jarring you may want to revisit them. It's a long answer but, I don't know what the actual answer is. (laughing) - Thank you, we have to stop. We could go forever. It's such an honor to have you here. Thank you very much. (clapping)
