A lifelong campaigner for human rights argues that children must be protected and given natural justice
The art of communication is to make the conceptual human. For a lawmaker or judge, this skill is particularly vital. To translate the words on a page into direct, sometimes catastrophic, meaning for an individual’s life should be paramount. If people are to be governed or punished, they must know why, in terms they can understand.
Justice Albie Sachs has this quality in abundance. He also has an amazing CV.
He is currently a Justice of the South African Constitutional Court, having been appointed by Nelson Mandela in 1994. A long-time veteran of the anti-apartheid struggle, he served a series of terms in prison and lost an arm and an eye when his car was bombed by South African intelligence services in Mozambique where he had sought shelter.
Most recently, Sachs has become involved in the debate over the rights of children. In the 2007 South African case of S v M, in a judgement he wrote, the Constitutional Court held that the best interests of the child should be taken into account in sentencing decisions involving primary caregivers and that this should become a “standard preoccupation of all sentencing courts”.
This precept was picked up by former Children’s Commissioner Kathleen Marshall in her 2008 report Not Seen, Not Heard, Not Guilty regarding “the rights and status of the children of prisoners in Scotland.” It’s a well-meaning report but given that very few of us will ever know the experience of giving birth while in prison – usually having been handcuffed on the way to the delivery room – how can we ever truly hope to empathise with these women?
Asked the question of whether newborn children should remain in jail with their mothers, Sachs provides a telling response, one which clearly humanises the academic debate.
“Yes, they should be with their mother.
Their mother is their universe, their whole world. And I say so with some vehemence. In the 1960s, I was in and out of prison and the person I subsequently married, she was also in prison, in a number of women’s jails.
“Being a political prisoner, she saw things a bit differently from others but the only points of light in these miserable prisons would be the mother and baby, mother and toddler contact, that completely transcended the harsh physical surroundings. There was intimacy, there was caring and she had absolutely no doubt that if the mother had to be in prison, it was far better for the baby to be in there with the mother. She wrote about it quite strongly.
“The child needs to be with the parent who bonds them as strongly and most directly.
I think it is also marvellous for the mother.
My former wife, Stephanie Kemp, said the only real point of dignity and selfesteem that many of the women had was in relation to their children and their babies,” he says.
Sachs says he views the decision by the Scottish Children’s Commissioner to pick up on the points he made in the S v M case as evidence of a wider global trend towards recognising the rights of children and young people.
“I don’t think it is an accident, I think in various parts of the world, the question of taking children’s rights seriously is on the agenda and for me, it is very pleasing to see that there has been a comprehensive study done here on the rights of children of prisoners and it is an impressive study and I am hoping to learn a bit more.
“It is an active community. It has looked around the world for important programmes and concepts to do with the rights of the child. I know from friends who work in the area that New Zealand has been a particularly important country, partly because of elements of the Maori tradition, which involve elements of the community really, really strongly and very strongly, elements of restorative justice,” he says.
For Sachs, a man who has committed his life to combating prejudice – apart from his work in fighting apartheid, he is also the author of a seminal work Sexism and the Law, has written about anti-semitism and was the author of the 2005 Constitutional Court judgement that overthrew South Africa’s statute defining marriage to be between one man and one woman – pursuing the rights of children has a particularly poignant importance in a South African context.
He argues: “Under apartheid, children suffered particularly severely through direct abuse but also with families, total dislocation. For us, the hope for the children is more than just rights that very young people around the world should have; it is part of the hope for our country.”