Edwin Cameron
JUSTICE
A Personal Account
TAFELBERG
Even the most benevolent of governments are made up of people with all the propensities for human failings. The rule of law as we understand it consists in the set of conventions and arrangements that ensure that it is not left to the whims of individual rulers to decide on what is good for the populace. The administrative conduct of government and authorities are subject to the scrutiny of independent organs. This is an essential element of good governance that we have sought to have built into our new constitutional order . . .
It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my Government and my Office and judged against.
FORMER PRESIDENT
NELSON ROLIHLAHLA MANDELA
Introduction
About this Book
This is a book about our country’s most inspiring and hopeful feature – its big-spirited, visionary Constitution. And it tells the story of my journey from a poverty-stricken childhood to becoming a lawyer and eventually a justice in the country’s highest court, which has the duty to interpret and guard that Constitution.
In telling that story, I blend my own life experiences, growing up as a white child from a poor home, who later worked against apartheid as a human rights lawyer, with what I hope are enthralling and inspiring stories of how citizens, lawyers and judges can make the law work to secure justice. I explain some features of the pre-democracy legal system, and how our country made the extraordinary transformation from apartheid to democracy, under the world’s most generous-spirited Constitution.
Chapter one starts at my very first encounter with the law. I was seven years old. My sister Jeanie and I were in a children’s home. It was a time of trauma, for we had just lost our elder sister Laura. It was then that a riveting confrontation with the law occurred. It left a profound impression on me, marking my consciousness for life.
Growing up under apartheid, I had the law all round me. For the distinctive feature of apartheid is that it was enforced by law – minute, exhaustive, detailed, and often cruelly enforced legal prescriptions. But what fascinated me was that the law, apartheid’s oppressive instrument, could also be employed against apartheid. It could be used occasionally to mitigate its effects. Properly employed, it could be used to repair, not to break down or damage.
I saw this when, just out of school, I witnessed a famous trial, whose dramatic outcome I describe in chapter one. This chapter explains how, amidst oppression, resolute activists and human rights lawyers could also secure a limited measure of justice and fairness in the courts. It was their work that laid the foundation for our Constitution, in which our founders resolved that the law would embody our country’s best and highest hopes for itself. The law would continue to be the centre point of the country’s development. But henceforth it would be used as an instrument not of injustice, but of justice.
After recalling law under apartheid (chapter one), I describe my own encounter with one of our young democracy’s most momentous challenges – AIDS. I explain how heavily this fearsome disease burdened our transition from apartheid to constitutional democracy (chapter two). I then recount the judiciary’s transition from being an enforcer of apartheid law to becoming one of our new democracy’s three arms of government (chapter three).
In chapter four I recount the drama of the biggest test the new Constitution has so far faced – President Mbeki’s questioning of AIDS science, which tragically caused untold thousands of unnecessary deaths. But fortunately our Constitution is supreme. And the activists turned to the courts to enforce it. The courts responded justly. They ordered President Mbeki’s government to start making anti-retroviral (ARV) treatment available, and to the President’s credit, he eventually accepted the ruling. Today South Africa has the biggest publicly provided ARV treatment programme anywhere in the world. This massive achievement shows the immense power of law and of reasoned constitutionalism.
In chapter five, I explain the unspoken value that powerfully underlies all the ambitious promises of our Constitution – the value of diversity. I explain it from my perspective as a proudly gay man, one who grew up fearful and ashamed of my own sexuality, and who now serves my country without disqualification because of who I am. The Constitution affirms us in all our differentness. But we have a very long way to go before we can say we as a country have fully accepted its invitation to rejoice in our differences.
Chapter six celebrates the Constitution’s promise of social justice. My whiteness bought me the privileges apartheid was designed to secure for whites. It secured for me access to a first-rate high school and an excellent university. These opened the way for me to get a Rhodes Scholarship to Oxford, and to start my legal career. I was a beneficiary of apartheid’s affirmative action for whites but, growing up poor, my life also benefited lavishly from private gestures of generosity and support. Our Constitution seeks to offer this generosity and support justly to all. It gives us a framework for a society in which mutual support and generosity are the key. And it obliges government, on behalf of all of us, to create a society in which all of us can live in dignity.
In the concluding chapter, chapter seven, I reflect on where we are after nearly two decades of constitutionalism. There is much reason to feel disquiet and dismay. But there is also some basis for the sober belief that we, as an engaged, purposeful citizenry, can create a prosperous future. We need honest leadership and vigorous commitment from ourselves. What we already have are the constitutional fundamentals. The Constitution’s values and structure are sound – twenty years of rowdy contestation have proved this.
The law offered me a chance to remedy and repair my life. The Constitution offers us a chance to repair and remedy our country. It is an opportunity we should seize with eager determination.
So I invite you to turn over the page, to start with me on the path that took me to the law, and that took our country to democratic constitutionalism. It is an engrossing and wonderful journey, full of ups and downs, but at its end there lie the practical possibilities of hope.
Chapter One
Law Under Apartheid
I: A first encounter with the law
My first encounter with the law was at the funeral of my elder sister Laura, just before I turned eight. In the back row of the Avbob chapel in Rebecca Street, Pretoria, my father sat stiffly between two uniformed prison guards. They had slipped in discreetly late, after family and friends were already settled. My sister Jeanie and I, uncertain whether he would be allowed to come, squirmed round from our front-row seats alongside our mother to snatch a glimpse. He gave no signal in return. Despite the desperate reaches to which his alcoholism often took him, he carried himself with a natural dignity, and sat silently, motionless, between his captors.
Why he was in prison was not clear to us. There was so much else to deal with. Laura – the brilliant eldest child, about to enter high school, felled on a bicycle trip to the corner shop by a delivery van. It was Jeanie’s eleventh birthday, the twelfth of January, and Laura had set out to buy golden syrup to bake cookies for a treat. A hot January afternoon in Pretoria cracked, life-swervingly, by the news, breathlessly brought by a neighbour’s son, that she lay lifeless at the stop street below my aunt Lydia’s house. There followed a harrowing succession of callers at the house, some kindly leaving envelopes with small sums of money. The next week, Jeanie and I were due to return to the children’s home in Queenstown, where she and Laura and I had spent the last bleak year.
The events were enough to split off an internal part of my engagement with the world. In the days after Laura’s death, unlike my mother and Jeanie, who lay in the darkened back bedroom of my aunt’s house, sick from shock and grief, I felt no pain. Only numb denial. Over the next years, instead of mourning, I withdrew into what seemed like the safety of a crabbed inner space. I reinvented myself in the guise of a clever schoolboy who, despite family tragedy, managed to excel at school.