Edwin Cameron’s career of judicial compassion
Just as poker players have habitual gestures that tell their opponents what cards they are likely to be holding, so too do most people favour words or phrases that reveal facets of their character. In Edwin Cameron’s case, these words are “I think”. The recently retired Constitutional Court justice prefaces many statements with this phrase, not thoughtlessly, and not in the lazy way others rely on “basically” or “essentially” or “you know”, but as a deliberate caveat.
Unlike many people he actually does think deeply before speaking, and unlike almost all people he is prepared to consider the possibility that his own opinions may not be irrefutable universal truths.
This is what defines a good judge, and a judge remains a judge even after retiring. Although he has stepped down from the bench at the age of 66, Cameron may still be called into occasional service by the judiciary. Besides, he feels it would reflect badly on current judges were he suddenly to flout the moral code to which he has cleaved for so long.
“I think it’s important for former judges not to become political combatants,” he says as he thoughtfully works through a broccoli salad. “I think it’s important not to become a political partisan once you’ve stepped down from the bench.”
As an example of what not to do, he points to the frequent TV appearances of retired British judge Lord Sumption, who had much to say about how the Supreme Court should have dealt with the legal imbroglio that played out in the UK this week.
“It really was astonishing to me that he should venture into saying what the court should do. I was amazed. I don’t think you should comment or predict or say what you think your colleagues ought to do, because it’s just not your job. There’s a big benefit in judges shutting up, and there’s a big benefit to retired judges shutting up as well.”
He may not have plans to play bridge and join book clubs in his retirement — “Not,” he hastens to add, “that there’s anything wrong with bridge and book clubs” — but nor will he be canvassing for any party as a hobby.
“I think our political landscape is so fractured, and I cannot believe that it is either useful or significant for someone who has been on the bench for 25 years to comment on that or get involved in it. I think it has a sort of knock-on resonance on your still-sitting colleagues, because you are still so close to the office of a judge that it’s almost as though you speak as one, even though technically you no longer are.”
He’d be no sort of judge, however, if he didn’t take into account the counter-arguments and entertain the exceptions.
“I agreed [that judges should shut up about politics] except when a moral imperative forced me to speak about ARVs [antiretroviral drugs],” he says of his own career. “And you can obviously give a scholarly lecture, that’s different from being on a talk show.”
Cameron’s famous decision to speak out against the government’s policy on Aids helped bring about the mass provision of ARVs and saved countless lives. His moral imperative was informed by his own experience. As one of the few people who could afford ARVs, he was living proof of their efficacy, which motivated him to take a public stand that everyone should have the same right to life through access to treatment.
As for the exception to speaking out provided by scholarly debate, two weeks ago, giving the Rabinowitz Lecture to the University of Cape Town’s law faculty, Cameron laid into SA’s “fatally flawed and defective criminal justice system”. He sympathised with but decried the public call for harsher sentencing of criminals. This, he said, is a human response but an “entirely futile” one. “We do no good at all by finding and prosecuting a haphazard segment, a sliver of rapists and murderers, and sentencing them to life, jamming our prisons.”
His mapping out of potential solutions was tempered by the warning that our paralysing fear of crime prevents us from seeing clearly. This response, he said, in some ways mirrors the administrative mishandling of Aids in the mid1990s.
“It was a real threat to our democracy, not because of the viral impact … but because we mishandled it so catastrophically. The same applies to crime.”
Personal insight into social stigma
In his books, Witness to AIDS and Justice: A
Personal Account, Cameron shares fragments of his personal history: the poverty that forced his mother to send him and his sisters to a children’s home in Queenstown until she could afford to take care of them; his father’s alcoholism and imprisonment; and the devastating loss, when he was seven, of his eldest sister. Laura died after being knocked from her bicycle by a delivery van while on her way to buy golden syrup to bake cookies on middle sister Jeanie’s birthday.
He writes movingly of the emotional shock that followed this calamity. In Witness to AIDS, he recalls how excelling at school became an escape and a refuge from grief: “Intellectual achievement pointed away from the unbearable.”
He might have become a cloistered classical scholar but in “a moment of transcendent clarity”, as he calls it in Justice: A Personal Account, he realised that he “wanted to undertake a skill that would enable me to play a practical remedial part in other people’s lives”.
He and Jeanie did not speak for years about their early hardships but both eventually found healing in doing so. For Cameron, these things have also served as a way to be more connected to others encountered on his path of public service.
“I have chosen deliberately to use parts of my life history as tools of advocacy,” he says. “The big features of my life that contribute to my sense of right and wrong are being poor but white, and then getting the privileges that whiteness gave to me, despite being poor, offering me the way out of poverty. And then being gay, and feeling the terrible stigma against LGBTI people … And then, of course, becoming infected with HIV just two years after coming out as a gay man.
“I think that has given me a sense, an experience of social stigma, but also something that’s a bit importantly different, which is social shame. You’re ashamed of being gay, you’re ashamed of being HIVpositive, and the shame comes from the external stigma and discrimination, but that shame is often internalised.
Casting off a burden
“The two big, deeply personal decisions I made were to come out as a gay man and later to speak about my infection with HIV and the fact that I’d survived Aids. The much more difficult one was coming out with HIV/Aids, but both of them were I think probably the most important personal decisions I’ve made.”
In 1999, at a public hearing of the commission dealing with the appointment of judges, Cameron “came out” as a person living with Aids. In Witness to AIDS he writes: “Before, it had felt like the hardest, most self-exposing thing I had ever done. After, I knew that I had freed myself of a vast burden — that of unnecessary secrecy.”
As liberating as it may be to surrender control of our responsibility for other people’s reactions, Cameron admits that it is never easy. “We all have a yearning for affirmation and approval, and to detach yourself from that is difficult.”
He remains amazed and gratified at the response he received, which while not universally positive was “almost overwhelmingly” so. “I got responses from the whole world, literally. They didn’t stop coming for several years. They sometimes still come. So, paradoxically, there was enormous affirmation for something that I feared would trigger condemnation and ostracism.”
Having been through that, and having played a significant role in SA’s transition to a constitutional democracy, Cameron is facing another, more personal transition as he ends his career as a full-time judge and throws his powerful energies into other things.
On Wednesday, while we were lunching, his appointment as chancellor of Stellenbosch University was announced. Cameron studied there on an Anglo American scholarship in the 1970s, achieving top honours in his undergraduate law degree and honours in Latin. He lectured in Latin and classical studies for a year before taking up a Rhodes Scholarship at Oxford University.
Cameron is no stranger to academia; he has chaired the Wits University council for a decade and had a long involvement with the Centre for Applied Legal Studies. The post of chancellor is a ceremonial one but there may be a second, more hands-on job in the works, one that chimes with his zeal for prison reform and its importance in reducing crime — the topic of his recent lecture at UCT.
Nothing is cast in stone but since the suggestion was made in public, Cameron will say this: “On the bench, much to my surprise, the chief justice told the minister [of justice] that he should appoint me as inspector of prisons. I’ve said I would be available were it to become available, so we’ll see what happens.”
Even if he were a devotee of bridge and book clubs, there probably won’t be time for such pursuits. Far from feeling ambivalent about retiring — which is to be expected when one is required to refocus and readjust one’s sense of purpose — Cameron is vividly upbeat.
“My overwhelming feeling is gratitude,” he says. “It sounds corny, but in a few weeks it will be 22 years since I started ARVs and it does still feel marvellous to me, in an entirely uncorny way, to be alive and to have experienced the past 22 years. I also feel a quiet sense of excitement because it’s a change in my life and I think it’s going to bring interesting opportunities.”
Making SA’s democracy work
He is also quietly upbeat about SA despite all that has cast gloom over us in recent years.
“I think that, rightfully, as South Africans we are dismayed, we are angry, we are fitful, we are restless, there is so much cause for dissatisfaction, but I think we really do have a chance to do better.
“I think it’s exciting to be a South African in a functioning constitutional democracy, one with holes and tatters and torn fabrics and fractured pillars in it, but one that we can make work.
“I think the cynicism and destructiveness which seemed to be rampant in the previous presidency inflicted enormous damage, structural, institutional damage, and also damage in belief and trust and promise … I think the ambit of the assault on our constitutional institutions was in play, but the remarkable fact is that they have survived, and they have survived for us to make better use of.
“We need a stronger civil society, we need a stronger media, we need stronger-voiced opposition for us to be a better-functioning democracy.
“I think that the question for the constitution is: can you really ensure, through the constitution — through government measures primarily, overseen by judicial surveillance — that there really will be a substantial expansion of social benefits to the dispossessed, to the marginalised, to the urban and rural poor?
“I think that’s an exciting project. It’s an exciting project not just nationally but internationally … you know, for Brazil, for India, for China, many of the same questions arise, but I think we are better equipped to answer those.”
A more just society is within reach
In the conclusion to his 2014 book, Justice: A Personal Account, Cameron writes that SA’s internationally unparalleled constitution “offers us a framework within which to repair our country, to restore, redress, and reconcile”.
Five years later, he still believes that. Our grievances may be greater and more burdensome, but, he says: “It’s a question of acknowledging and respecting the reasons for the grievance while also trying to garner our constructive efforts in moving forward.
“While recognising the way that society prevents most people in our country still from having real choices about where they live, how they live, the quality of life that they would choose … those choices are constricted but not obliterated, and I really do think that a more equal and a more just society is within our reach.”
Fortified by salad (“broccoli is good for the soul and the political temperament,” he says), Cameron is heading home to the apartment he shares with his partner, aquatic scientist Nhlanhla Mnisi. First, however, he must attend to a matter of “great strategic and political importance”, which is to buy cat food for the two feline members of their family.
I think it likely that the contents of the bowls will be distributed most fairly.
The question for the constitution is: can you really ensure … that there really will be a substantial expansion of social benefits to the marginalised?