Maybe, during a year when this nation celebrates the sesquicentennial of important milestones from the Civil War and the golden anniversary of pivotal events of the Civil Rights Movement, it is fitting that, just before it ends, Nelson Mandela died. Rightly heralded as one of the world’s greatest leaders of this century and the last one, Mandela helped usher in freedom in South Africa and made real a democratic government, just as President Abraham Lincoln did 150 years ago and the Rev. Dr. Martin Luther King Jr. did 50 years ago. Mandela’s passing provides a time of reflection, not just for political leaders around the world, but for lawyers and everyone else who care about the rule of law anywhere.
After all, apartheid in South Africa was a system of laws. While a distant memory now, the era of apartheid – the word for separateness in the Afrikaans language – began in earnest in 1948 with the election of the Afrikaner National Party, which ran on this policy of state-sanctioned racial segregation. Not at all novel to South Africa, the policy of apartheid built on earlier decades of legalized racial oppression, such as South Africa’s 1913 Land Act, limiting the land rights of black South Africans within their own country. Not long after the 1948 election, the Population Registration Act of 1950 became law, requiring the classification of all South Africans by race. A series of additional Land Acts allocated the vast majority of the country’s land to whites. The South African government forcibly removed black South Africans from rural areas and sold their land at low prices to white farmers.
Other laws required non-whites to carry documents justifying their physical presence in certain areas in the country, established racially segregated public facilities for whites, banned black South Africans from attending the predominantly white Universities of Cape Town and Witwatersrand and, most importantly, denied anyone not white the right to vote and determine who governed them. Under apartheid, by law, South Africa, a country with a majority black population, was a country governed by whites only. It was by no means a country “of the people, by the people and for the people.”
Rather improbably, Mandela paved the way for democracy in South Africa by demonstrating a steadfast unwillingness to compromise. His 27 years in prison may have been shorter if he had been willing to cede on a single point: his refusal to renounce violence as a means to end apartheid in South Africa. Of course, as we all know now, but no one clearly knew then, upon his unconditional release from prison, Mandela did not exhort, support or endorse violence as a means to end the apartheid regime. In fact, he used the political assassination of Thembislie “Chris” Hani, a well-known black activist, to push for a date certain for South Africa’s first democratic election.
His refusal to compromise coupled with the tremendous personal sacrifice that came with it gave Mandela the political credibility necessary to negotiate for the end of apartheid and the white political and legal supremacy essential to its existence. As a result, he set the stage for a more politically, economically and racially viable nation than few, if any, thought possible with South Africans of all races embracing, even if warily, the new era of democratic rule. To be clear, while apartheid is no more, its vestiges remain. Millions of black South Africans remain mired in poverty, as unemployment and education rates of black South Africans significantly lag behind those of white South Africans.
Nevertheless, the passing of Nelson Mandela — and the fact that he died not as a prisoner, but as South Africa’s former president and its first democratically elected one – is a reminder of the power of the law generally and the power of the laws of racial oppression specifically. It is a reminder of King’s words about the power of laws that upheld segregation in this country that they were “unjust because segregation distorts the soul and damages the personality” because they gave “the segregator a false sense of superiority and the segregated a false sense of inferiority.” It is a reminder that a single person, although by no means acting alone, can inspire us not only to believe in the power of the law, but also to believe in its capacity to change from disenfranchising many to empowering us all. •