‘Rightful Misgivings’: Justice Edwin Cameron talks about the power of rights, and the danger of them falling into the wrong hands
‘…Rights exist only in words. They cannot be eaten, and they afford no shield against hatred and ignorance.’
With the stern faces of ancient monarchs staring down from their gilded frames in the opulent surroundings of the Elizabethan Middle Temple Hall, Justice Edwin Cameron delivered this year’s annual Leslie Scarman lecture, hosted by the Law Commission. Open, honest and modern, Justice Cameron’s talk focused on rights in relation to South Africa’s poor, homeless, AIDS sufferers and gay community. It seemed somewhat incongruous in these majestic and antique surroundings. As another, very different Cameron warms up his ‘keep your tanks off our lawn’ rhetoric in relation to the European court of human rights, and as the recent fury ignited by the court over its opposition to the UK’s decision to deport the radical Muslim cleric Abu Qatada demonstrates, rights can sometimes seem precariously fragile. Justice Edwin Cameron’s lecture entitled ‘what you can do with rights’ was a unique blend of personal testimony and legal insight and resulted in a speech that trod a careful line between toxic scepticism and the over-enthusiastic complacency that comes with proclaiming that rights can solve all the grievances in the world.
A Justice of South Africa’s highest court, the Constitutional Court since 2009, Justice Cameron is perhaps most famed for asserting a powerfully critical voice against President Mbeki’s AIDS-denialist policies. The disaster produced by Mbeki and the triumph of the courts in helping defeat it, formed a crucial part of Cameron’s analysis of the good that the provision of rights can generate, yet he began with a sympathetic nod to those more sceptical. Sitting in front of an audience who seemed to be largely made up of lawyers, including some high-ranking legal minds, Justice Cameron boldly lent support to a reoccurring theme that rights-sceptics voice, stating; ‘it is a bad business to put too much trust in lawyers, judges and the law.’ The law, he was keen to emphasise, does not initiate social change, but resolves conflicts and protects against mistakes or abuses of power. Yet despite their weaknesses and limitations, it is clear that rights still have much to offer the citizens of a democratic society, as the example of post-apartheid South Africa powerfully demonstrates.
Cameron first looked at ‘bricks and mortar’ rights; those that protect people’s material conditions of life. South Africa’s Constitution, drawn up in 1994, enshrined rights to social and economic goods, such as adequate housing, health care services, sufficient food and water and social security. Initial cases proved controversial, such as that of Mrs Irene Grootboom who, along with many other acutely impoverished people, had moved on to private land to erect shacks in which to live. She was evicted and given temporary emergency accommodation, yet the Constitutional Court gave her no specific relief, only passing the blame to a government housing initiative for failing to provide for people in Mrs Grootboom’s position. Despite the fact that she still lived in a shack at the time of her death, eight years after the judgment, the case did achieve some discernible good. Although the immediate outcome was a modest, unsatisfactory one, its long-term consequences were to push the government into enacting Chapter 12 of the National Housing Code, an obligatory guide requiring government to act and plan for its most vulnerable citizens.
Cameron’s second area of analysis, ‘law as a corrective of public irrationality’ entered into more personal, emotional territory. In 1999 Thabo Mbeki’s presidency and his impervious and irrational denial of AIDS resulted in the deaths of thousands of South Africans. Cameron talked candidly of his own diagnosis of HIV and his resulting battle with AIDS in 1997, which left him severely ill. Yet his judge’s salary meant that he could begin anti-retroviral therapy, which transformed his life, and with his health restored, he immediately began a campaign to have the treatment made available to all.
In an arena where the majority of government officials, diplomats and South Africa’s establishment were cowed into silence by an intimidating President, it was the courts who delivered salvation to the suffering country. The Treatment Action Campaign, ‘TAC’, took the government to court, where South Africa’s High Court granted an order for the government to give pregnant women the drug Nevirapine, which halved the likelihood of their babies getting infected. On appeal to the Constitutional Court, the judges upheld the High Court’s decision, and as a result, today, 1.5 million South Africans are on ARV treatment, the largest publicly-provided AIDS treatment programme in the world.
Cameron’s final area of his speech was the idea that rights in public discourse can confer the ‘dignity of moral citizenship’; the sense of being a ‘fully entitled member of society, undisqualified from enjoyment of its privileges and opportunities by any feature of his or her humanhood’. Again Justice Cameron enriched his argument by recounting his own personal experience of being a participant in one of Africa’s first gay pride marches, held in Johannesburg in 1990, and made possible due to the police cordoning off a busy junction which ground traffic to a halt in order for the march to proceed. He described it as a ‘moment of exhilarated insight’ after having grown up in a society that was a hotbed of prejudice, recollecting that he ‘felt deep shame at my feelings and desires…I deplored not being heterosexual , with the comfortable conformity, acceptance and career and family benefits I thought this entailed.’ Since then, the Court has made progressive steps to giving gays and lesbians ‘the dignity of moral citizenship’ that Cameron experienced so powerfully during the 1990 march. This in turn is reflected to a certain degree by the uproar caused when a few years ago, the then president aspirant Jacob Zuma was forced to make a public apology by the ANC Youth League, Fikile Mbalula, for making homophobic comments.
Yet as the running theme of Cameron’s lecture was at pains to elucidate, endowing a group within society with a set of constitutional rights does not mean that all difficulties and prejudice simply disappear. He declared; ‘…Rights exist only in words. They cannot be eaten, and they afford no shield against hatred and ignorance.’ Indeed, the law is capable of great evil, as the reign of apartheid in South Africa demonstrates, and the more current abuses that go on in countries such as Iran and China with legal sanction.
Justice Edwin Cameron delivered an open and personal testament to the good that rights can confer on society. He painted a picture of the courts producing small, modest changes not without their flaws and controversies, such as in the Grootboom case. He contrasted this with mammoth victories of David and Goliath proportions as in the TAC case that defied a President and rescued a country’s citizens, and he also talked of rights as precious just because they are present in public discourse, by giving people an intangible sense of equality and citizenship. And yet his lecture was also a measured one, stating that the law could be capable of great error and evil too. A question from the audience asking what lawyers in this country can do to export rights to countries such as Zimbabwe, produced a telling reply from the speaker. ‘Lawyers should start with humility’ he said, urging them to work through people acquainted with social conditions in those societies. It was this careful approach to the good that can be done by lawyers and the law in relation to people’s rights that showed Cameron’s understanding of the topic, and that ultimately produced a sincere, knowledgeable and cautious approach to a topic often wildly distorted by the press.