Mandela, Human Rights and the Making of South Africa’s Transformative Constitution

Since 1994, numerous books have been written about South Africa’s leadership of the human rights revolution. Such narratives lie at the heart of Nelson Mandela’s Long Walk to Freedom and George Bizos’ Odyssey to Freedom: A Memoir by the World-Renowned Human Rights Advocate, Friend and Lawyer to Nelson Mandela. More recently, historians have taken a clearer-eyed view of the African National Congress’s (ANC) late conversion to the language of rights. They have mainly looked at how the ANC, an organisation rhetorically committed to revolution and suspicious of ‘bourgeois rights’, made an abrupt about-turn and adopted human rights discourses in the late 1980s. This article takes a different course, opening up debates about the different meanings that rival groups of anti-apartheid lawyers attributed to the notion of human rights. At the start of the 1980s, there was little common ground between the mainly liberal, mainly white, Lawyers for Human Rights, the Black Lawyers Association’s demands for ‘rights and recognition’ and ANC exiles’ search for ‘a liberated law’ and ‘popular justice’. I trace how these three broad strands of legal thinking converged during the 1980s around a common set of ideas: speaking of ‘positive freedoms’ that would undo the inequalities of the apartheid regime. By shepherding together these different groupings, the ANC leadership entered the constitutional negotiations that would usher in South Africa’s democratic transition as the champion of human rights and ‘transformative constitutionalism’. None the less, sharp disagreements remained between rival groupings. This is one reason, I suggest, why ‘Mandela’s constitution’ has recently become a lightning rod for bitter debates about race and inequality and, more broadly, the meaning of human rights and transformation.