Justice Edwin Cameron in conversation with Damien Carrick

The HRLC was extremely fortunate to be hosting Justice Edwin Cameron of the South African Constitutional Court in early May. He delivered an inspirational keynote address at our Annual Human Rights Dinner and had a number of excellent speaking engagements in Melbourne and Sydney. For our last ‘If I were AG...’ column, we’ve decided to publish an edited version of the interview he did with Damien Carrick for ABC Radio National’s Law Report.

Justice Edwin Cameron in conversation with Damien Carrick
Radio National’s Law Report, 7 May 2013

Damien Carrick: HIV/AIDS is ravaging Africa, but there is still a great deal of shame and silence around the disease. One man who's done an enormous amount to break down the stigma is a judge of South Africa's highest court, the Constitutional Court. His name is Justice Edwin Cameron. Some time ago he decided to make a very controversial disclosure, one that broke a huge taboo. He told the world that he is living with HIV. Edward Cameron is currently in Australia and joins us on the Law Report. Welcome to Australia, Justice Cameron.

Edwin Cameron: Wonderful to be here, lovely country.

Damien Carrick: Your country faces many challenges, and perhaps the biggest of them right now is coping with the HIV/AIDS epidemic. How many people have died of HIV/AIDS in South Africa?

Edwin Cameron: Well, it's probably in the millions but we still have a very significant death rate - probably around about 200,000 people a year dying of aids. But the good news is that it's enormously down. There's a publicly provided antiretroviral treatment program and it's very successful. There is a high public awareness, and gradually stigma is coming down.

Damien Carrick: Let's talk about that stigma. Although it's incredibly widespread, very few people talk about living with the condition. Why is that?

Edwin Cameron: I think it's the enormous stigma. We understand the external dimensions of manifested stigma, which is discrimination, condemnation, rejection, ostracism. What we don't understand and what people even in the AIDS field don't talk about very much is the internal dimensions of the stigma, the way that people with HIV and at risk of it internalise the shame, the sense of fear of condemnation, the self-condemnation. I think that internalised stigma is very important in this, because we know in South Africa that there is treatment. We know that this disease is manageable. We know that people are no longer in a generalised, mature epidemic, as the epidemiologists call it. We know that there is widespread acceptance of the fact of HIV, and yet there has still been no publicly prominent politician, no cabinet minister anywhere in Africa who has come forward to say “I'm living with HIV”.

Damien Carrick: In fact you're probably the most prominent citizen of South Africa to acknowledge that you are living with HIV/AIDS…

Edwin Cameron: Can I take that further, just to intrude? I'm the only person holding public office in the entire African continent who has spoken of myself as living with HIV.

Damien Carrick: You were diagnosed with HIV back in 1985. To give a bit of background about you, you were for many, many years a prominent anti-apartheid lawyer. For many years you’ve been a prominent advocate of gay rights and also for those living with HIV/AIDS. In 1994 you became a judge of a superior court, the High Court. You felt a responsibility to come forward and speak about your health status, and I understand that was triggered by an event in December 1998. Tell me about that event.

Edwin Cameron: It was the big issue of democratic South Africa, this massively expanding epidemic. But I was living with the virus myself and it was a big secret. A tiny group of close friends, plus one or two colleagues knew.

But what precipitated my public pronouncement in the end was the death of a very poor woman, unlike myself, a relatively privileged man, a judge, protected job, living in a suburb behind a palisaded fence. Her name was Gugu Dlamini, she lived in a township of Durban called Umlazi, and she was a sex worker. She spoke out on 1 December, 1998, on public radio about the fact that she was living with HIV. And three weeks later her own community, her neighbours and former sex partners turned on her and stabbed and stoned her to death. And truly I thought that if this person with none of the protections and privileges that I have could speak out, that I had to speak out myself.

I tell a story in my book, Witness to AIDS, about a man called Lovemore. He was my gardener two days a week, a man from Zimbabwe where the epidemic raged as fiercely and as a burningly as in South Africa. And it became clear to me about two years after I'd made a public statement and about four or five years after I'd started taking treatment myself that he was looking very, very sick. And I confronted the issue with him repeatedly.

But Lovemore said to me, “No, I've tested, I'm fine”. He hadn't tested, I'm pretty sure. I haven't seen a death certificate, I didn't do a diagnosis myself, but I think the extraordinarily high likelihood is that Lovemore had HIV, that he was wasting away from AIDS. He returned to Zimbabwe. And the measure of the internalisation of the stigma is that Lovemore knew that I would help him get treatment, even though at that stage it wasn't yet publicly accessible. He knew that I would help him, he knew that he would keep his job, he knew that I and my household would all support and love and affirm him, and yet he couldn't open himself to accept those possibilities. And that I think shows this astonishing power of the internalisation of stigma, the fear that is inside one's mind. He returned to Zimbabwe in June 2001 and never came back. He died that July.

The grief that I write about is a grief of self-reproach, and it's a grief that I think operates here in your country. It's a grief about the insufficiency of our own human response. I failed Lovemore. I spoke to him. I did what I should have done. I did a little bit more than I should have done. I confronted him, but I didn't say to him, “Lovemore, get into my car”. And of course this feeds into the whole debate about patient autonomy, which in HIV testing is very misdirected because I think when you are dealing with such levels of internal stigma you need the hand that reaches out, the respectful hand, the autonomy cautious hand that says, “I think you should test”.

That's how I failed Lovemore, I should have said, “Get into the car, Lovemore. You don't have to, I'm not going to sack you if you don't, but I want you to get into this car and I'm going to take you to my doctor. I'm going to ask my doctor to test you. I'm going to pay for the test and the doctor will give the result to you. If the result is what I think it is I want to put you on treatment and I'll pay for it.”

I failed him in not doing any of those things.

Damien Carrick: In 1999, you chose an unlikely forum in which to reveal your health status. You were appearing before the national judicial commission which was hearing from candidates for a position on South Africa's Constitutional Court, the highest court in the land. Why did you choose this forum?

Edwin Cameron: The banal answer is that the then Chief Justice, Arthur Chaskalson, who I had confided in about my HIV status, said, 'Why don't you do it when you're being interviewed?' It was a brilliant suggestion by him. The more grandiose answer is that my statement was going to be a public bomb, a huge bang, and I knew that, it would be a bang across the whole of Africa because no person holding public office had then done it.

So we chose a forum, Arthur and I, with maximum public effect, and it created a stunned silence around the table. It was on the front pages of every newspaper and the television main headline that evening, and resonated and reverberated. The idea was to create maximum public effect, and the maximum public effect was for two reasons; the first was to go against this public and external stigma, and the second was to say, “Hey, get over it, I've been on treatment since 1997 and I'm living”. And that's many years ago now and I'm still living, and being interviewed by you, which is wonderful.

Damien Carrick: A stunned silence, TV cameras rolling. What happened after that?

Edwin Cameron: An outpouring of undiluted affirmation: thank you for doing it, well done, how wonderful, we're so proud of you, this is wonderful, we know that this is a disease which shouldn't be stigmatised, we know this is a disease that shouldn't be ostracised and we're so glad you've done it. The next morning I flew back from Cape Town to my High Court chambers in Johannesburg, walked into a room full of flowers, colleagues coming around to greet me and tell me well done. I thought that they'd sneer or disapprove, and they didn't. They just said, “You've done a terrific thing, we're so proud of you.”

Damien Carrick: There is a widely held idea that judges should keep out of current political controversies, and maybe when you waded into Thabo Mbeki's policies around HIV/AIDS you were breaking that line or crossing that line. How would you respond to that?

Edwin Cameron: I agree with it. I think that judges should generally shut up on controversial issues of public policy. Judges speak through their judgements. It's a strong tradition in Anglophone jurisprudence, which Australia and South Africa are both part of, and it's a good tradition. We have enormous public power. We exercise it distinctively, we exercise it on jurisprudential grounds, not on policy grounds, on reasons of principle rather than policy. And for that reason it is best for us to shut up. I didn't shut up and I didn't shut up because I thought I was morally compelled by my own survival, on a continent in which millions of people were dying of AIDS because of lack of medication, because of stigma, which President Mbeki's policies were fuelling his denial of the patent causation of AIDS, and I thought I could not keep quiet. So I breached my own rule, I breached a good rule of the judicial decorum and judicial restraint and I spoke out.

Damien Carrick: Was it partially informed by the fact that you were for many years a prominent anti-apartheid lawyer, and you were speaking out about that terrible institutional injustice at a time when most lawyers and most judges didn't speak out at all?

Edwin Cameron: That's a generous inference, thank you, and it's not one that has been suggested to me in an interview before but I think it's right. In the 1980s I was vehemently outspoken about apartheid and about judges on our courts who were applying apartheid laws without criticising them. And it is a tradition in my own life of untrammelled outspokenness, I think you're quite right, and I appreciate your making that connection.

Damien Carrick: Thabo Mbeki left office in 2008, and in 2009 after being turned down three times for a position on the Constitutional Court, you were appointed to South Africa's highest court. Now, because of your years of activism to gain treatment for all people with HIV/AIDS, you say that you won't sit on treatment access cases, is that right?

Edwin Cameron: Yes. I said at the time of my interview that because I have committed myself to antiretroviral treatment provision to people with AIDS that I would be biased. The litigants, the drug company or the public entity wouldn't have the necessary confidence that I would bring an impartial mind to the case, so I would recuse myself from that narrow category of cases.

Damien Carrick: But you wouldn't recuse yourself if the court was hearing, say, a discrimination case involving someone living with HIV/AIDS.

Edwin Cameron: Precisely.

Damien Carrick: Why is that?

Edwin Cameron: Well, I'm living with HIV, I'm a white person, I'm a proudly gay man, I'm a human being, someone has got to decide cases. A person living without HIV might be more prejudiced than I am, so we've got to do our best. I don't think that my HIV status or my whiteness or my maleness…I can sit on a gender discrimination case even though I am a man, and I can sit on a race discrimination case even though I'm white. So I don't think the fact that I'm living with HIV would disqualify me from deciding any HIV discrimination case.

Damien Carrick: Of course South Africa's Constitutional Court has been extremely important in terms of the lives of people living with HIV/AIDS. Before you got to the court there were two very important cases. One was Hoffmann v South African Airways. What was that case about and why is it so important?

Edwin Cameron: It was an applicant for a cabin steward position on the national airline, and they said, “We can't take you because you've got HIV”. They raised a lot of bogus medical reasons, taking treatment, what if there is a crash and he's going to bleed into a passenger. Rubbish. And the Constitutional Court in a word said, “Rubbish”. I wasn't on the court at the time but it was a wonderful judgement that expounded the science of AIDS and expounded the science of employment discrimination and said “Rubbish”.

Damien Carrick: There was also then the very important decision in 2002. It involved Thabo Mbeki's denial of AIDS and the policies which were brought in as a result, and a drug called Nevirapine.

Edwin Cameron: Exactly. It was the first case that tested President Mbeki's scepticism because he said, “We're not sure, I don't know anyone who's got AIDS, I'm not sure that you need to test for AIDS, I'm not sure that a virus can cause a syndrome”. He was saying all these dreadful things in public and he was holding back treatment. So the Treatment Action Campaign, probably the most important and successful civil society grouping in the African continent, took him on, and they could take him on because we have a court system, because we have strong minded judges of integrity, and because we've got a constitution.

Unlike you in Australia, we also have in our constitution a Bill of Rights, and in our Bill of Rights we have an obligation on government to take reasonable measures to afford access to healthcare. The court ruled that President Mbeki, in his refusal to start making antiretroviral drugs available, in this particular case to pregnant mothers to stop it being transmitted to their children, was not reasonable. That was the start. It was a momentous decision, momentous for lawyers, momentous for judges, momentous for the politicians, momentous for the rule of law in South Africa. To President Mbeki's credit he accepted the decision. Within two years thereafter we had a nationally provided treatment program.

Damien Carrick: And thousands perhaps, maybe millions of lives have been saved as a result.

Edwin Cameron: Precisely. And the court lighted the way. I'm now one of more than two million South Africans living on antiretroviral treatment.

Damien Carrick: And can I ask, when you were first diagnosed and you were first on these retrovirus, presumably they were only affordable for rich white people…

Edwin Cameron: Correct. That's a consequence of public campaigning, morally enraged citizen campaigning, and a lesson for us as South Africans and for our brothers and sisters in Australia.

Damien Carrick: You mentioned a moment ago that the South African Constitution has a Bill of Rights. We don't have a Bill of Rights. We're pretty proud of that here in Australia…

Edwin Cameron: Look, it's a wonderful debate and I've been following it with great respect, it's an informative debate. And of course there are strong arguments one way or another, but all I can speak about with truthfulness is about our experience which is that the Bill of Rights has enhanced people's lives, it's enhanced their sense of citizenship, it has enhanced their own sense of moral agency. It means that people feel a greater sense of responsibility as people and as citizens because of the rights afforded them in the Bill of Rights.

Damien Carrick: You do have socio-economic rights in your constitution, a right to healthcare, there's a right to running water, there is a right to housing, education.

Edwin Cameron: Social security.

Damien Carrick: Social security. Lovely ideas, but are they just motherhood statements? I remember that there was a case, I think a Grootboom case, a squatter, a member of a community whose shacks were being demolished. She went to the court to enforce her right to housing. She won. Many years later I think in 2008 she still died in a shack waiting for the government to meet its constitutional rights. Lovely ideas, these socio-economic rights, lovely court decision. Did it mean anything?

Edwin Cameron: It did. It's a good question and it's a justified reproach. Mrs Grootboom didn't get a teeth-biting order from the court in 1999-2000 when it ruled on her case, but what the court did do is it gave an order striking down the whole of national government's housing policy because it didn't make provision for people like Mrs Grootboom. So while she didn't get a remedy, the government had to start off its housing policy again, and the court said to it; it is unreasonable for you to exclude from all your wonderful plans the poorest of the poor, the people whose shacks are being demolished, you've got to cater for them. And that has led to a revolution in our national housing policy. And while the fact that Mrs Grootboom died without a bricks-and-mortar house eight or nine years after the decision is something that I think we as judges and lawyers in South Africa should reflect on with humility and modesty because it shows the limitations of a constitutional system. Nevertheless, the housing policy has in fact been one of the successes of government in South Africa, and it has been one of the successes of the court's ruling.

Damien Carrick: So it translated into results, not necessarily for Mrs Grootboom, but more generally.

Edwin Cameron: Seven million houses built since the democratic transition. There has been…I'm not boastful because there's a lot wrong with our country, but the public housing provision to the poorest people in our country is one of the success stories of our government.

Damien Carrick: Okay, your constitution has these socio-economic rights. It is also a modern constitution and a modern Bill of Rights and it acknowledges things like race, gender and sexual orientation. In fact South Africa was one of the first countries to legalise gay marriage as a result of a case brought along to uphold the rights in that constitution. Is that right?

Edwin Cameron: That's correct. The Fourie case in the Constitutional Court said to government you've got to create a system of marriage equality for same-sex people. And of course it was controversial.

What the court did was it didn't say to government “change the legislation immediately”, it said to government “we're giving you one year to change the legislation yourself”, and in that year there were public hearings across the country. It was an extraordinary process.

And at the end of the year the government minister who was shepherding the process said that she'd learnt an enormous amount. She said, 'I didn't want to do this but I'm looking forward now to attending my first same-sex marriage.' So while public sentiment was still very divided, I think there had come an enormous shift in public sentiment.

Damien Carrick: And do you think because the nation had collectively subscribed to that constitution when apartheid was dismantled, and equality for all South Africans regardless of sexual orientation was included, that made the step easier?

Edwin Cameron: Of course it did, it made the court's step easier because we were the first country in the world in 1994 that actually included the words 'sexual orientation' in our constitution. But still I think there has been an acceptance by people, not necessarily individually of gays and lesbians, but of the fact that gays and lesbians are part of the whole project of constitutionalism. So people accept that for so long as we have constitutional rights and as long as we have the promise of equality that we can't carve out an exception to discriminate against gays and lesbians. I think I can confidently say that that is a position that most South Africans accept.

Damien Carrick: France and New Zealand have recently allowed gay marriage through their parliaments. In Australia it's not really on the table right now. As a judge, do you think it's better for representatives of the voters to vote on these things, or do you think it’s a better way forward to have judges like yourself make a decision?

Edwin Cameron: It's a good question because some things are best left to popular decisions. Should we spend more money on schools or more money on roads? But some things to do with rights with human dignity we take out of popular mandate precisely to protect minorities, to protect majorities even. So I think the question of gay and lesbian equality is a rights issue, and while our judiciary is aware of public sentimentand on issues, I nevertheless think that the judiciary has a role in sometimes saying this is the right thing to do according to the law and the constitution and we cannot do anything else.

Damien Carrick: People jump to certain conclusions about each of those attributes, and one of them might be, Edwin Cameron, white South African, you must have had a pretty privileged upbringing. That's not actually the case, is it?

Edwin Cameron: Let's put it this way, I came from a fractured and very poor family and I spent five years of my primary school years in a children's home because my family couldn't look after me and my sisters.

But the pivotal thing for me, and this is what has shaped my life since then, was that as a white kid, as a clever, hard-working, anxious to get out of the rut white kid, I had a privileged access to education. I got into a secondary school in the second year of high school when I was 14 years old, Pretoria Boys High, which changed my life, a superb school, it still is, and that gave me the last four years of high school education, access to university, access to a Rhodes scholarship eventually. But it was because of privileged access to public education. I know there's a debate in Australia as well about private education versus public education. I'm a very proud product of public education and that makes me feel passionate about our duty as private individuals, as private corporations and as government and judiciary to nurture public access to educational opportunity.

Damien Carrick: Is South Africa today a place which gives all its children these basic opportunities?

Edwin Cameron: Certainly not, no. We have failed ourselves as South Africans on many fronts; race discrimination, gender discrimination, levels of gender based violence are completely unacceptably high. Public education…there are some educations who say that we've actually gone backwards since 1994, which would be a matter of shame for all South Africans if that were the case.

We've got a long way to go yet, we've got a long way to go on all the things that we've promised ourselves under the Bill of Rights. And that's part of what we as judges, we as public officials in South Africa are still struggling to achieve and committed to achieving.

Damien Carrick: But can the Bill of Rights and the Constitutional Court make meaningful differences in that regard? You're saying it's a useful mechanism across a range of these problems that you've spoken about.

Edwin Cameron: Yes, I certainly think so. I think there's a conversation between judges and the courts. Our constitution says that judges are allowed to make determinations of whether public decisions by government about education, healthcare, food security, water, are reasonable. Then government has got to decide within the band of reasonableness what to do, and I think the courts do have a role. I think that citizens can bring cases to the courts. We've seen in housing, we've seen in water, there have been decisions in favour of government and there have been decisions in favour of citizen litigants. We've seen that the courts have got a good role to play, a constructive role to play, and a role that has capacitated government to do better.

Damien Carrick: Edwin Cameron, it's been a great pleasure talking to you, thank you so much for speaking to the Law Report.

Edwin Cameron: A great delight, thank you Damien.

The full transcript and podcast of this interview can be found on Radio National’s website here.