Justice Edwin Cameron’s book, Justice, explores the power of South Africa’s constitution.
“I really wanted to write a book that explained the excitement, the importance and the power of the constitution,” Justice Edwin Cameron tells me over breakfast in Franschhoek. The Constitutional Court judge is here for less than 24-hours to participate in the town’s annual literary festival. He tells me he was determined that his new book, Justice, shouldn’t be “an academic tome or a serious disquisition” on the nation’s most important document.
He wrote with a general, and particularly younger readership in mind, people might be less familiar with the history that led to the Constitution’s creation. “We’ve got to explain the history to explain the power, and when you explain the power you explain the possibility,” he says. “I’m scared that after 20 years there is a period of reflection and of sobriety amongst many people. It’s a period of gloom.” While he understands why those sentiments exist – “because there are serious worries about what we’ve achieved and what we’ve still got to achieve”, he wanted to show that “the constitution offers us a practical basis to achieve what we want to achieve” if it is effectively utilised.
“Under apartheid, the legal system was the main instrument of oppression — it was enforced specifically through the law,” Cameron tells me. Because “we tried to turn that on its head during the constitutional negotiation process”, he believes South Africans “have got a unique relationship to our legal system” – unlike the citizens of many other countries. “We’ve taken the legal system that served injustice under apartheid and we’ve taken the best from it and said that we want to create a far more aspirational and just society,” he says. “The constitution is our claim to specificity as a nation, our claim to uniqueness as a country, and our claim to a moral voice in the world.”
“It’s wrong to think the constitution was either a miracle or an accident,” Cameron says. Instead, it “was a product of very carefully, toughly negotiated process” and “extremely hard work”. The result? “Truthfully the world’s most all-embracing, all-inclusive, most aspirational and most progressive constitution”. I ask him how South Africa, with its all its complexities and a history of violent oppression, was able to achieve this.
It was “a combination of very particular historical factors”, he replies. “The Berlin Wall had just fallen and the ANC, which had had a very close association with the Communist Party, became committed to constitutionalism and a bill of rights in the years of transition and negotiation.” More broadly, “there was also a sense that we had to put behind us all forms of discrimination, not just racial discrimination.”
It was in this hopeful atmosphere that Cameron, who became the first openly gay judge in South Africa when he was appointed to the high court in 1994, successfully campaigned alongside other LGBT activists for the constitution to explicitly ban discrimination on the basis of sexual orientation – “a world first”. “It was the first constitution anywhere in the world actually to mention those two words,” he says.
More than many other countries, particularly in Africa, Cameron argues “we have a widely disseminated popular sense of constitutional agency. That sounds very abstract but it basically means that a service delivery protestor says, ‘I know that I’m entitled to better and I’m entitled to better because I’ve got the right to water and to healthcare and sanitation and to education.’”
This is partly due to a feisty tradition of public interest litigation – in Justice’s first chapter, Cameron eloquently explores how lawyers such as Arthur Chaskalson and George Bizos used “the legal system to try to slow down and outwit apartheid”. But he also believes the legalisation of black trade unions in 1979 led to these movements utilising their legalised status to not merely promote workers’ rights but also to drive internal dissent against apartheid, resulting in “a widely disseminated popular sense of the law as a potential instrument for justice” which has continued to this day.
While protestors in 2011 Arab Spring uprisings were effectively saying, “We reject the system; we reject this government”, Cameron argues that the sentiments behind the majority of post-apartheid South African protests are: “We know this government which we claim as ours can do better” – “a claim of loyal dissent”. He adds: “They’re not wrong. We’re a middle-income country – we shouldn’t have as much destitution and squalor as we have. We know that our government agencies are capable of delivering more,” he says, blaming corruption and a lack of efficiency.
Cameron says there are parallels between Gauteng motorists refusing to pay e-tolls and service delivery protestors who burn down libraries. “Both are enraged with a system that they think should be dealing better with them and rendering better unto them. And in both cases, there is unlawful behaviour.”
While he believes that constitutional education is important, “you really create popular legitimacy and understanding of the constitution through changes in people’s lives brought through constitutionalism”. Justice powerfully illustrates the profound and meaningful ways that both the constitution and the constitutional court have had on the lives of South Africans over the past two decades. While there have been several landmark cases – rulings that have scrapped the death penalty, allowed gays to marry, and forced government to comprehensively overhaul its housing policy – Cameron believes the most powerful was the court’s judgement, in 2002, that forced the government to provide antiretroviral medication to pregnant mothers.
The Constitutional Court has sometimes been criticised for not being radical enough in its rulings on socioeconomic rights (such as the right to housing, sanitation and water) which the constitution requires to be progressively realised for all South Africans. Cameron sees the constitution as a “serviceable, practical structural means” of helping the country’s citizens attain these rights; he doesn’t regard the document as the panacea that will automatically deliver them.
When I ask him what the greatest threat to the constitution is, it isn’t crime or political pressures or corruption – though he mentions all of these as challenges. Rather it is inequality – and the reality that 20 years after democracy was established in South Africa, it remains “a deeply divided and dispossessed society”. “We are a highly unequal society,” he says. “Inequality is bad for everyone… we all suffer its ill-effects. A more equal society is a more just society; it’s a society in which people lead more integrated and contented lives – and there are empirical studies showing this.”
Cameron believes that the constitution’s promise of equality “is the one we’ve delivered worst on”. Will this change? He is hopeful that “with enough imaginative self-belief that we can do it”, it will. But while, as a constitutionalist, Cameron is enthusiastic about the constitution’s power, as a judge he takes “quite a cautious and conservative view of what the courts and constitution can mean. They are an important fallback mechanism but the most important agency of constitutionalism is actually the people – through popular activism, popular dissent, popular engagement with the constitution, and through public interest litigation. I don’t think that judges and lawyers can do everything.”
Justice is published by Tafelberg.
This article first appeared in the July 2014 edition of Wanted magazine.