8 IN CONVERSATION Vol. 104 No. 2

MyA CONVERSATION Own WITHLiberator

uring a lunch-hour event people, and experiences that have influ- David F. Levi: You’ve written a wonder- with students at Duke enced his life in public service. ful book called My Own Liberator. I read School in February, David Moseneke, the recipient of the 2020 it with such tremendous enjoyment. Can DF. Levi, director of the Bolch Judicial Bolch Prize for the Rule of Law, spent you tell us how you came up with the Institute, interviewed former Deputy the early part of the spring 2020 title? Chief Justice Dikgang Moseneke of the semester teaching and writing at Duke Constitutional Court of South as the University’s Rubenstein Fellow. Dikgang Moseneke: I decided to wait about his memoir, My Own Liberator. Though his visit was cut short by the and choose a title at the very end of The book traces Moseneke’s remark- pandemic, Justice Moseneke left an my writing process. Throughout my able life and career, from imprisonment indelible mark on the students and fac- process, I scratched and scratched my on at the age of 15 to ulty he engaged with while at Duke. head, wondering, “What am I going becoming a justice on the Constitutional The following is a lightly edited tran- to call all this?” In the end, I thought Court of , and the values, script of his conversation with Levi. my book was really about how I liber- Judicature 9

ated myself, in multiple ways and on 10 pages, pass them on, and we read in many levels, the most obvious level The prison a merry-go-round of sorts. When the being the duty to liberate myself from book was done, we had a literary club colonialism and . Obviously, actually turned discussion about the work. We picked individual agency and collective up books that we thought would speak agency intersect when you organize into a space to our circumstances and, indeed, to with others to resist a bad regime, but prepare for university. you individually are your own libera- in which we I, and others, qualified for college tor, and I’ve always understood that to admission while studying on Robben be true for myself. were preparing Island. I was young and had nothing so it was quite easy to focus on the job at Levi: How did you come to be arrested revolutionaries hand of getting a degree. I finished my and convicted at age 15? degree in political science and English with the tools literature after three years and went Moseneke: As a young person, my on to a law degree and, ultimately, sense of injustice was heightened. to overthrow an LLB, the equivalent of a JD. So the Even from the age of 10, I understood prison actually turned into a space in very clearly the injustice of an unequal the apartheid which we were preparing revolution- and segregated society. I was appalled aries with the tools to overthrow the by the fact that my school precincts regime. apartheid regime. were so much poorer than the school precinct on the other end of the town. Levi: You mention in your book that you I was just totally unhappy that the two were hungry all the time during your towns were unequal and separate, that ing their position. We regrouped, and time at Robben Island. You were a young, my people were kept out of any polit- we started reassuring each other that growing person, and they did not give ical activity. So it wasn’t too much for apartheid is bankrupt and mindless you adequate food. What was that like? me to decide that my duty in life was to and that we have to reorder our soci- destroy apartheid, and I got swept up ety to make it more just. Moseneke: The food was very little. If in the political activities. I was arrested My mother and father were teach- you’re a very young boy or girl and you as a high school student and ended up ers, so I also knew that I had to study. get into the refrigerator, you can eas- serving 10 years on Robben Island from When I was arrested in high school, I ily clean it out. I used to do that before the age of 15 to 25. was picked out of a class. So my natu- I was arrested. Then, I got arrested ral instinct at the time was to want to and suddenly received three meals Levi: Robben Island was such a big part study. We went on an 18-day hunger a day, bang. No dessert, no cookies. of your history and was a horrible place strike to make sure that we had a right All meals were measured based on for a young person. While your experi- to study. We set up, as we often called the district surgeon’s recommended ence there was terrible in many ways, it, a university on Robben Island and amount of sugar, coffee, and oatmeal. you also talk about the joy you experi- started a reading club. In no time, read- In prison, they fed us on a diet scale. enced there and that you made the most ing became par for the course. In those Apartheid is a horrific system that was of it. What did you mean? days, you were compelled to work for meant to divide people from birth to no pay as part of your prison sentence. death. Even the grave sites were dif- Moseneke: Yes. I don’t know why, You had a full day of hard labor pushing ferent. Everything else in between how, or where the insight came from, around and breaking up stones. At the was also separated. So, in prison, “A but my primary focus was on sur- end of a day, you’d have a nice three or diet” was for white women, or women vival. Robben Island is a political four hours of reading. We would read of European extraction. “B diet” was prisoner facility, so if you take 4,000 as a relay. For example, we would take for males of European extraction. “C or 5,000 political prisoners and put Grapes of Wrath, remove the binding, diet” was for women who were clas- them together, you end up validat- and pass around every 10 pages. I’d read sified as mixed race, Indian, or Asiatic. u 10 IN CONVERSATION Vol. 104 No. 2

“D diet” was for mixed race, Indian, or reasons that are totally invalid. I’m the Asiatic males. “E diet” was for African Practicing good guy. So you see, judge, you and women. And “F diet” was what I got. your government are the bad guys.” I You can see how low I was on the hier- [law] in South put forward the argument that there archy. You can see how meticulous our was no act of insincerity on my part. If oppressors were about notions of race Africa was a anything, I was asserting my human- and immutable differences that human ity and my rights to be governed beings are supposed to have. And this complicated properly. This wasn’t an original argu- was the law. Apartheid was oppres- ment since there was precedent when sion by law. So by the time you got to F, affair. Every became an attor- the food was so little, I thought I would ney. The three-judge panel bought the die, you know, just out of hunger. After element of argument, and I was admitted as an every meal, I felt so hungry. Every time attorney. after eating, my stomach was immedi- apartheid Then came the point of practicing. ately empty again and purring. Practicing in South Africa was a compli- So what I remember about my 10 existed through cated affair. Every element of apartheid years on Robben Island is that teen- existed through the law as oppression age hunger. But the human body can the law as by law. This is not to be confused with take quite a lot of deprivation. We eat the rule of law. Parliament was sover- more than our body actually needs. But oppression by eign, so parliament could make I think if I had received enough food, I’d to any effect, like the example I gave probably be twice as tall as I am now. law. This is not you about the scale of food in prison or another law that proscribed the Levi: You left Robben Island at 25. You to be confused employment of married women on the could have left the country and done reasoning that they will soon become other things. Instead, you chose to stay with the rule pregnant and require replacing. There in South Africa with the determination is a whole range of intersectional to be a lawyer in an oppressive regime. of law. oppressions that came out of apart- Why? heid. It was a heathen system. So, how did I practice law under it? Moseneke: The trend at the time was There were a number of progressive for the people who came out of Robben I chose to remain in South Africa and lawyers who practiced law within Island to go into exile and join libera- to actually push the system to admit me the same setting. The strategy was tion forces. I remember at a certain as a practicing attorney. So I reached uncomplicated, frankly. For every sin- point there was a decision to stage out for apprenticeship, and I took the gle attack, you seek to find a procedural both an internal insurrection and an exams. Even given all the impediments foible, a technical weakness, or what external military assault against apart- I had, I was first in my class nationally. I call the soft belly of the beast. I can heid. The anti-apartheid movement I was better than everybody else who give you several fascinating examples was quite strong, even in the United took the exams, even the 99 percent of this, particularly in the realm of spa- States. Certainly not in the mind of that were white. When I applied for tial apartheid. There was a law that Ronald Reagan or Maggie Thatcher, admission as an attorney, the law soci- permitted the government to forci- who both supported the apartheid ety objected on the grounds that I was bly remove African people from their government. But among the people an ex-convict and questioned whether homes without compensation. I would of the U.S. and across Europe, we had there was any moral turpitude on my go and follow the legal trail: Where the strong support of anti-apartheid part. My argument was uncomplicated: was [the order] issued? By whom? movements across the world. A com- “No, I’m at the height of my sincerity. I Which procedural process had been bination of all of those forces would seek to disestablish an unjust minority followed? Was it gazetted? If so, if it bring apartheid down. regime that oppresses the majority for were published or proclaimed, was it Judicature 11

done in time? Was it published in [both] Moseneke: Yes. indeed. which was quite a sad moment. She official languages simultaneously? hung around for 27 years and, in the You’d be surprised how much drops Levi: So you went on to greatness as a end, she lost out. between the cup and the lip. Because lawyer and as a justice. Nelson Mandela the authorities were such a techni- and his spouse were clients and men- Levi: In your book, you discuss a time cal, rule-based lot, picking up on these tors. In fact, you’re still an executor of when Winnie Mandela was a minister, procedural mistakes was sufficient to the estate. Please tell us about that. and she broke a rule that Mandela had in set aside the particular order, such as place. Despite still being married at the the one that sought to remove a whole Moseneke: Nelson Mandela was my time, he wanted to fire her and you actu- community and hand over their land to father’s age. He was on Robben Island, ally got caught up in this conflict. white farmers or residents. in a different section from mine. I was Another fascinating example that in the general section, or the nonleader Moseneke: Yes, indeed. Immediately I mention in my book involved an section. Over time, I think he came to after the transition, Nelson Mandela arrested activist named Richard hear of me. By the time I became an appointed Winnie to be a deputy or Ramodipa. Richard was detained in attorney and a counselor, I was one in a associate minister in his cabinet. There a prison despite his warrant for his panel of five or so trusted lawyers that was a rule stating that no cabinet min- detention stating that he must be he often asked to do things for him. ister shall travel abroad without the detained in a police lockup. I asked his [a noted president’s permission. Mandela was wife where he was, and she said, “No, attorney] and , who now the big chief, but part of the com- he’s in a prison facility. A correctional would become our chief justice, were promise during the interim included facility.” So I looked at the warrant included in this group. that Mandela could not rearrange his again. The legal principle at the time My first task was to defend his wife, cabinet without consulting F.W. de said that the warrant is something Winnie Mandela. She was a freedom Klerk and Mangosuthu Buthelezi, who that limits the liberty of a citizen and fighter of real note and was quite were acting as deputy presidents. it ought to be construed in favor of lib- a fiery human being. She was near When Nelson Mandela heard that erty. This was not my principle, but a totally fearless and quite extreme in Winnie had gone to Ghana, he fired her principle under the apartheid govern- her views on many fronts. She would point blank upon her return. Obviously ment. You must execute a warrant and defy her banning orders quite often. the relationship had really soured write it out properly. As you imple- In South Africa, some call it a banning between them at this point. I was ment it, you must implement it in strict order when you are restricted to your called up to seek an urgent interdict compliance with its terms. However, home. Winnie would get out there against the new democratic president Richard was not being kept in a police with her fist up in the air and the police of South Africa, for whom I’ve done a lockup as specified by his warrant. So would have her arrested in front of the lot of work. However, Winnie insisted the detention was plainly unlawful. TV cameras and so on. It was my job to that I was never his lawyer. I did set- As a result, Richard was released. He intervene and to appear in court. “May tle the papers and showed that Nelson immediately skipped the border and it please the court, my Lord, I appear Mandela had not acted constitution- disappeared from South Africa. on behalf of the defendant and apply ally. This was not difficult since the So, that’s another example of how for bail.” She would repeat this over constitution quite plainly stated that I would meander my way through a and over again, and I would defend her the president may not alter the cabi- blatantly unjust system and yet bring over and over again. So that got me net without consulting the two deputy relief to my clients and to the people quite close to the family. presidents, and I had an affidavit from who needed the relief. Quite often, Sadly, when our President had Mangosuthu Buthelezi stating that he court cases are a platform for exposing decided to divorce Winnie Mandela, had not been consulted. It was the end the inhumanity of a system. we had a big fight about who I repre- of the story. When Mandela received sented. Am I Nelson Mandela’s lawyer, the papers, he threw in the towel, ten- Levi: You use the rule of law, against the or am I, as Winnie insisted, her lawyer? dered to pay all the costs, and took rule by law. I became Winnie Mandela’s lawyer, and her back onto the cabinet. We insisted I had to be on her side in the divorce, that he publicly announce that he u 12 IN CONVERSATION Vol. 104 No. 2

was going to reemploy Winnie. Since totally disassemble apartheid. So she was fired publicly, she was to be In drafting our in many ways, it was an incredible reemployed publicly. Within 48 hours achievement, which used principles of of rehiring Winnie, the President fol- constitution, law to re-create an otherwise unjust lowed the procedure that was required society. by the constitution and fired her again. there weren’t Levi: Writing a late 20th-century con- Levi: In your memoir, you highlight many examples stitution is quite a privilege. Did you the responsibilities you had during the of modern have any models that you worked with? transition. The first major task was your role as a drafter of the new constitution. constitutions. Moseneke: Indeed, it is quite a priv- What was this like? ilege. I can’t resist repeating Justice We looked Ruth Bader Ginsburg’s words. When Moseneke: When Nelson Mandela was asked where one should look for a new released from prison, I became one quite closely constitution, she said, “Certainly not of his key troubleshooters. That is, the U.S., but certainly South Africa or in part, why I was roped into writing at the U.S. Canada.” We framed that and put it up the new constitution. I was invited by on every wall. Mandela personally and went out to Constitution In drafting our constitution, there write our interim constitution. It was a weren’t many examples of modern huge privilege. So, as fate would have but, I’m sad constitutions. We looked quite closely it, one moment you’re a slave, say- at the U.S. Constitution but, I’m sad to ing, “I’m my own liberator.” The next to say, your say, your constitution is very sparse. It moment, you are a founding father. has been one of the oldest and the most Our task was to write down the deals constitution venerable constitutions, but it is cer- that were struck in the negotiations tainly not a modern constitution and it and to write them in constitutional is very sparse. says very little in relation to what we language that would encapsulate the intended to say. Modern constitutions agreement and reconstruct a demo- Modern tend to be explicit about what you seek cratic state. to provide for. So, instead, we looked a What we did was quite fascinating constitutions lot to newer constitutions in Europe, in and explains why the South African Latin America, and in Canada. transition was so special. We agreed tend to be Modern constitutions also tend to that the transition would be within the be in accessible language. We wanted purview of the law, and that we would explicit about people to be able to pick up our consti- draft the constitution in the form of what you seek tution and read it. It’s bedtime reading. legislation. An alternative way would You don’t need legal training to follow have been simply to dissolve parliament to provide for. what it says, and we included very few in an anarchist way without any transi- arcane constructions of language. tion. But most of the institutions would We also made a number of decisions have been in a state of stress, and we’d that were quite difficult at the time of have had to start all over again. Instead, Because Mandela and his clerks drafting. The courts, for instance. Will we made sure that we had an orderly were all lawyers, this whole transi- we have a Supreme Court? Yes, we will. transition. The minority would dises- tion, which otherwise would have been Will it have judicial review powers? tablish the apartheid parliament by law, bloody and dangerous, was encased in Yes, it will. That’s inevitable in the light stating that from Day X South Africa legal processes. We adopted a charter of a supreme constitution. What size of had a new constitution, which shall be of fundamental rights and freedoms court will we have as a Supreme Court? interim until we had a final constitution. peacefully within a setting that would Seven, nine, eleven? The German Judicature 13

Supreme Court has 16 justices sitting in electoral commission, the commission past behind and engage with people on two panels of eight. Canada had seven that ran our first democratic elections. current terms, as opposed to feeling the at the time. Other countries in Europe It was a huge task and a huge privilege. weight of history on your shoulders? had nine. And others had eleven. We Of course, the elections meant so chose eleven. much. Think about it. In almost 400 Moseneke: Yes. I grieved for 10 years We went backwards and forwards years, it was the first time that we had on Robben Island. My captors weren’t on the question of whether the jus- a common voters roll. It was the first kind, but I drew courage from the fact tices would have tenure for life. We time South Africa had a bill of rights. It that Nelson Mandela had stayed at had the benefit of hindsight and were was the first time that we introduced Robben Island for 27 years, nearly three able to look at what the U.S. and oth- a whole range of mechanisms that we times my term. When he came out, he ers had done. We decided that we can talk about in a law class anytime. said to us, “We have to spare our energy will have a fixed term, maximum of We introduced a whole range of tools and refocus on the reconstruction.” which will be 15 years. So I had to fall and we spent the time to carefully In other words, migrating our soci- on my own sword and retire recently. write up the constitution in order to ety from a horrible past to a more just My 15 years ran out very quickly. make sure that everyone can pick it up society required that we focus on the I had to leave the court and so did and just read it out. The legitimacy of quality and mechanics of the transition. Justices and Richard the elections was quite, quite critical. Our end goal — to banish colonialism Goldstone. All of us had to come off Up to then, only three million white and to introduce a more just society — the bench despite feeling energized South Africans were entitled to vote. required that we be different from the and fiery and at the height of our We were a country of about 40 million, perpetrators of apartheid, rather than intellectual ability. But we opted for with 22 million adult Africans. Under re-enact our unequal past. Spending renewal, and we recognize that judi- the new constitution, they were enti- all our time being our own liberators cial power is a vast power. tled to vote. So suddenly we had to roll and then immediately seeking to do We also restricted the presiden- out voting machinery to accommo- what apartheid did would have been tial term to two terms, like the United date all 22 million new people. It was bankrupt in many, many ways. Nelson States. We copied the two terms from quite an operation. We had to get, for Mandela could have said, “let’s murder you but made it two terms of five years instance, ballot papers printed outside them.” If he had given that order, we instead of four. There was quite an of South Africa. I think we went to the would’ve had a blood bath. Obviously, anxiety to limit terms in order to not United Kingdom and Canada. We didn’t state power would’ve still been in the confer security of tenure and invite come to the United States because hands of the white minority. They had abuse. In fact, Nelson Mandela said, your government at that time was not a lot of big guns, so they would’ve shot “thank you very much” after the first overly friendly towards us, calling us many people. In the end, we would’ve term and he left. He didn’t run for the terrorist forces. won but with a lot of people dead. second term. So he was all the time try- In any event, there we were, all set to I want to add a quick note about F.W. ing to set good examples for all of us. run the elections. They were not per- de Klerk because it would be unfair He could have asked for a lifetime term fect. We had some procedural issues not to. He bit the bullet. He announced and, frankly, he would have got it. But as we went along with the elections. that he was going to release Nelson he stuck with one term and stepped But substantively, the elections were Mandela, which was a huge chance and down. free and fair without a doubt. Nelson a huge risk. He was going to lift the Mandela emerged as president. In ban on all the political organizations Levi: A second responsibility that came a sense, I was his vehicle, or part of and was going to implore these organi- to you from Mandela was the enormous his vehicle, for becoming president, zations to enter into negotiations with task of overseeing the first democratic as well as a vehicle for our people in him. Everything was coming to an end elections. Please tell us about that. establishing a democratic country. shortly after the Berlin Wall had come down and the Cold War was tottering, Moseneke: After writing the constitu- Levi: Is it a fair statement that, when so he wanted to take full advantage of tion, I was invited by Nelson Mandela South Africa moved to a constitutional that. But at the same time, had he not to be the deputy chairperson of the democracy, you were able to leave the done what he did, we would’ve gone u 14 IN CONVERSATION Vol. 104 No. 2

through a very bloody revolution. So pulsively as a habit. The old regime I don’t want to finish without giving South Africans executed and killed black males con- credit to him. He has had a few mis- sciously. Judges would sentence them steps, and he talks out of turn. I think chose to look to death in every single case. In our he’s getting a little old. The other day, system, you were hung by your neck he said he thought apartheid was not into the mirror. until you died. That’s how the warrant that bad after all. That invited a lot of read. When we took over, we still had wrath from many, many people. But We chose to 480 people in the death row. So, we had he’s the man who decided to release confront the to confront that, and we smashed the Nelson Mandela, and he saved us a death penalty. lot of bloodshed. So F.W. de Klerk was inhumanity of And the issues weren’t limited to quite an important factor in helping race. You won’t findRoe v. Wade in my facilitate a peaceful transition. our system. country, because we made sure that women are the holders of reproduc- Levi: Do you feel that South Africa has a tive rights, and they make the decision. stable democracy today? We dealt with each of these issues and are not that sharp.” I have to be care- wrote them down in our constitution. Moseneke: I’d say yes. We’ve had five ful here. In America, there are wounds that elections in a row. We have established South Africans chose to look into the still show and contort your society. institutions of state, notably, the judi- mirror. We chose to confront the inhu- One of the candidates I see on televi- ciary where I worked for 15 years. The manity of our system. During the truth sion, Bernie Sanders, calls up the edgy jurisprudence is available for all to read and reconciliation commission, the things that might be seen as symptoms and see. We’ve continued to receive jus- perpetrators of apartheid admitted the of social injustice and that still pervade tices from around the world to join us, wrongful acts they had done, saying, your great country. It is quite remark- to support us, and to validate us. “I arrested her, I tortured her, I raped able that a country of this prominence The biggest trouble is not the democ- her, and I killed her.” If they wanted has no charter of fundamental rights racy. It’s working fine. The biggest amnesty, they had to tell the truth, and freedoms. Instead, they have to trouble is eliminating poverty. There fully and frankly. We created panels be inferred from a very thin plat- is an inevitable intersection between of judges to hear the evidence and to form. Countries all the world round class and race and sometimes gender. decide whether the admissions were have inducted and adopted charters We still struggle with the full extent of full and frank. If it was, you were enti- of fundamental rights and freedoms. social justice, equality, and the histori- tled to amnesty. If someone thought Americans have to go and find the cal axis of apartheid. The impact of this the perpetrator had unfairly received things that might ameliorate a horrific still haunts our system. amnesty, you could go right up to our past. For example, maybe reparations. court to review the decision. Maybe acknowledging slavery, what it A question from the audience: As a suc- We had churches, for instance, who really was, and what it meant. Maybe cessful constitutional draftsman and hadn’t killed anybody, but who would talking about America’s relationship a founding father, what sort of advice nevertheless come forward and make with women and the patriarchy. Or would you give the citizens of our submissions about how they were . All of those things country? complicit in a system that basically that are still jarring, you may want to annihilated the humanity of other peo- revisit them. Moseneke: There’s an African adage ple, that exploited and rendered them that says, “When you are a visitor, your significantly poorer, less educated, Levi: It’s such an honor to have you here. horns should be short.” You know, ani- less healthy, and everything else that Thank you very much. mals with sharp horns normally go and apartheid brought to us. fight other animals. So the saying says There were submissions about cap- that, “When you’re a visitor, please ital punishment under the apartheid make sure your horns or your elbows system, which executed people com-