Setting the Best Course
A talk delivered by Justice Cameron to the students attending AfroCuration at Constitution Hill, October 5th 2019.
Can I tell you an interesting story?
Now, I want to start by telling you it’s an important story. It’s a story that starts on 21 November 2017. Almost two years ago. The second part of the story is in Pretoria, on 14 February 2018, fourteen months later. On both those days, important things happened to us as Africans. Two powerful men — and most of the people in Africa who are powerful are men — is that really true? Well, maybe it is true today, but it shouldn’t be that way. Anyway, two powerful men resigned. Who were they? 21 November 2017. Who resigned on that day?
In Harare on 21st November 2017, Robert Gabriel Mugabe resigned. And why did he resign? He was a controversial man. Some people say he should be honoured for challenging white power and white land ownership. Other people say he ruined his country and terrorised people and killed many. He was a controversial, powerful man. He resigned on 21st November because there were tanks on his front lawn and soldiers along the streets of Harare.
14 months later, Jacob Zuma resigned in Pretoria. There were no tanks and no soldiers: it’s a constitutional transition negotiated by his successor, then Deputy President, Cyril Ramaphosa. What is the difference? The difference is your legacy and your history, and I want to explain to you why. In South Africa, we’ve got a Constitution which people say is the most powerful and open-ended and all-embracing constitution in the world. It belongs to you. It defines your future. Let me explain where it comes from. Don’t ever listen to anyone who says that the Constitution came from Europe or America. Read the books by Bongani Ngqulunga ‘on Pixley ka Isaka Seme’, one of the founders of the ANC, and by Tembeka Ngcukaitobi: he wrote a book called The Land is Ours, and he shows that our Constitution goes back to before the ANC was founded in 1912. It goes back 120 years to when black lawyers got together and said, “The white powers want to start a Union of South Africa, excluding black people.” So the idea of a Constitution of a bill of rights didn’t come from outside, it came from our own people. And our own people fought for it. But let me first tell you, it’s very interesting, I want to explain what the difference is between Harare, November 2017, and Pretoria, February 2018. When President Zuma resigned, there were four decisions of the Constitutional Court, of which I was still a member at the time. I will tell you about three of these decisions relating to his power as President, and end with what the Constitution means to me. One concerned what people could say about him after Advocate Thuli Madonsela’s report on him came out. That was released in March 2014. Three days later, the opposition DA party sent out an SMS saying, “The report shows how President Zuma stole your money,” and the ANC says, “You can’t say he stole, the report doesn’t use the word ‘stole’.”
They get an order from the electoral court, the order is confirmed in Braamfontein, and it comes to us on appeal and we overturned that order. We say that Advocate Thuli Madonsela said that President Zuma ‘misappropriated’ money. And if the report says ‘misappropriation’ it’s plain political speech to say that he stole it. Because in our country you can say those things, that’s one of the wonderful things about our country. In Harare today, 1,500 km from where we are sitting now, there are people in jail for saying things. In Harare you cannot say those things. We have got free speech in our country which our comrades fought for, and some of them are here today in this room. And we have got a robust political debate which the Constitutional Court — just across the road about 200 metres away from here — has guarded.
The second decision concerned whether Advocate Thuli Madonsela’s report on Nkandla could be enforced. She said, “President Zuma’s misappropriated the money, he must pay it back.” And we said, “that order is serious.” Second decision. The third decision concerned secret ballots in Parliament. The Speaker said, “I can’t order a secret ballot.” We said, “Yes, you can.”
He ordered a secret ballot. President Zuma survived the secret ballot, but when they did the calculations, they found that 39 members of his own party either abstained or voted against him. So, the cracks in power were starting to show.
What the Constitution means to me is the chance for every South African to create the sort of society that we should have, rather than the society we now have. It creates empowerment, it creates values, but it also creates the mechanisms for us to create the society that we should have. It’s a people-empowering document of values, aspirations, principles, rights and mechanisms. The remarkable thing about the Constitution’s history and provenance is that it is a Constitution of all the South African people: its roots lie deep in resistance to apartheid.
Our Constitution and the Bill of Rights were based on a spirit of scepticismand resistance, and I think young people have the same spirit of questioning, of scepticism, of almost subversive querying of power. It’s a strength of our history as South Africans, and it’s a strength of our young people. I see it when I talk to young people and I think that the power of that questioning is that eventually it reflects back to the person. You are questioning the institutions of power — from that question arises: what are you going to do about it? And that’s the power of our national mood of scepticism, where we don’t bow down, we don’t subordinate, we don’t say “yah boss,” we don’t say yes to the powers that be. We question, we challenge, and then we DO.
I believe these educational events held at Constitution Hill will produce a sense of excitement in the young people gathered here. A sense of involvement, of ownership and potential. If you’re a young person with no belief in either the institutions of state or the organs or mechanisms of governance, that is a very dismal and hopeless place to be. I think these gatherings install hope, they install power, they install agency, they install the potential for us all to become better involved in making the Constitution real.
Creativity, Knowledge and Language
There are links between creativity, knowledge and language, and they lie in our human-ness, in the complexity of our human-ness and how we unlock that complexity. We do so by speaking, by communicating, by learning, by listening, by taking in, by offering. We learn it through knowledge and then we mould those two through our own creative powers into making a better society for ourselves and for other people.
We, the People can…
We, the People can make a society that is better, that is more just, that is more dignified, that is more equal, that is more transparent, in which governance is more accessible. We, the People have the power to do that through and under the Constitution.
Justice Edwin Cameron was born in Pretoria in 1953. When he was very young, his father was imprisoned for car theft and his mother did not have the means to support him and his two sisters. He therefore spent much of his childhood in an orphanage in Queenstown.
Despite living in poverty as a child, he completed his schooling at Pretoria Boys’ High School with financial assistance, and attended Stellenbosch University on a scholarship, from which he graduated cum laude. He went on to study with a Rhodes scholarship at Oxford University.
Cameron graduated with a law degree from the University of South Africa (Unisa) in 1978. In 1986 he became a human rights lawyer. His law practice included defence of members of the ANC charged with treason. He drafted the Charter of Rights on Aids and HIV. He also oversaw the gay and lesbian movement’s submissions to theKempton Park constitution-negotiating process. On 31 December 2008, Cameron was appointed to the Constitutional Court. He was considered a crucial member of the Court and has been described as a “jurist of the highest order.”
This article was originally published in March 2020 in Folios n.2 “We, The People”, the Moleskine Foundation cultural publication.