While COVID-19 has impacted all of Latin America, Cuba has faced it from its own particular situation. The state’s ability to control the main resources of the economy and regulate social behaviour – important for the implementation of mitigating measures at a pandemic juncture – goes hand in hand with the absence of a rule of law and the lack of mechanisms of participation to reduce the arbitrariness of power. Divergent trends – persistent official restriction on civic life and limited activation of civil society – now converge in a scenario of sharp economic crisis; the absence of electoral events or political change; and de facto application of a state of emergency. The latter is the focus of the present reflection.

Cuba is confronting – and attempting to manage – COVID-19 whilst immersed in the process of developing the institutions and norms derived from the recent approval of the 2019 Constitution. An ambitious legislative calendar aimed to harmonize legal provisions with the new constitutional order, including the Law No. 75 / 1995 on National Defense. Government decisions arising from the pandemic crisis impact individual and collective rights in a context where the government already operates without major restrictions.

This situation became more acute in the first half of 2020. During those months, a number of independent organizations, activists and journalists have documented an increase in repressive actions: Arbitrary arrests, police harassment, fines and prosecutions. The crackdown also reaches citizens seeking to acquire goods and services, with allegations regarding illegal access to food and medical supplies. Practices and figures such as hoarders, resellers, or recently, coleros (people who line up for scarce products), are criminalized as they sell their place to other citizens. Fines and penalties are applied on public health grounds by authorities without formal powers – police – and without a legal provision – health inspection rules – to support them (Viera 2020). The discourse that has accompanied the management of the pandemic from the authorities has been characterized by political voluntarism, severity and a strong punitive approach. It proceeds against offenders in full force, whilst selectively invoking calls from various international agencies to control the effects of the pandemic.

Existing legal standards and norms are used that limit freedom of expression, manifestation, association, assembly, and violate transparency and access to information. One of the most useful tools has been Decree Law No. 370 /2019 on the Computerization of Cuban Society, designed to provide tools to limit freedom of expression. It has been repeatedly denounced for its unconstitutional nature, and for being repeatedly applied to independent journalists and activists for “expressing opinions on social media”. Complaints have also been documented for the use of other legal provisions such as those associated with deportations of internal migrants (Decree 217 of 1997) and freedom of artistic creation (Decree 349 of 2019).

The legal uncertainty that characterizes the health emergency in Cuba has also been reinforced because the management of the pandemic has been mainly sustained on measures informed and reproduced widely via official media, entering into force from the time of their announcement. However, legal recognition of mandatory compliance measures, without the need for publication in the Official Gazette, is a breach of the rule of law and opens the door to legitimizing, in the future, serious actions that jeopardize citizens’ rights. Some of these important measures include the announcement of the closure of borders, the use of compulsory masks, and the forced isolation of people.

The failure to issue legal provisions and their publication in the Official Gazette also undermines the principle of publicity of rights. The mandate to publish legal rules of general interest provide legal certainty and alertness to the dangers of a logical application of measures. Another element has been, in the absence of certainty on the dates of entry into force of the measures, complaints of retroactive application of the law. This also applies to powers assumed by security forces, police, or even organized civilians, who have assumed surveillance, control and sanctioning functions over citizenship without a legal framework that supports them.

The approved set of measures is accompanied by new protocols of action for the police, the application of high level fines, and a call to strengthen police operations, to coordinate the action of state inspectors, and even to form “community-level working groups, with the participation of the FMC, the Defense Committees of the Revolution, the Association of Cuban Revolution Fighters and other actors and entities in the neighborhood to enforce the above measures”. At the same time, together with the Ministry of Interior and the inspection bodies, neighborhoods and communities also participate, reporting the sanctioned cases to the population.

During these months, the sui generis Cuban Parliament – a formally representative, non-professionalized and sparsely deliberative body – has not reported any face-to-face or virtual session. Nor have there been any complaints from Members calling for greater participation, meeting or control of the measures for the management of COVID-19 that have been taken by the Government of Cuba since March 2020. It should be remembered that the Cuban parliament, the National Assembly of Popular Power (ANPP), is not a permanent body: it barely meets for two ordinary periods a year, of a few days, upon convocation. The Ordinary Period – to be held in July – did not merit any public pronouncement of Members or the presidency of the ANPP, nor was the information reported on the institution’s website. In a context of limited production of legal norms and the recurring use of emergency regulation, no rule has emanated from or passed through parliament in all this time. Not even for approval.

Although Cuba has not made a formal declaration of state of emergency, some of the measures and organization of the state apparatus in response to the contingency involve a de facto state of emergency. In this sense, it is worth remembering that Cuba has not needed to resort, in the last 60 years, to a constitutionally recognized state of emergency legal declaration in order to manage emergencies such as frequent weather events (hurricanes, floods, droughts) affecting the country. Since the beginning of the health crisis there has been a de facto expansion of powers and functions of law enforcers (police, armed forces) and mobilized civilians; and the assignment of powers and functions to administrative bodies designed to act under a declaration of state of emergency (defense councils at their different territorial levels).

Cuban exceptionality, relative to most of the continent, is based on two main elements. First, the existence of a political regime which subordinates all forms of political and socio-economic activity to the monopoly of the Communist Party. This is an order that has developed important state capacities to confront, under a mobilizing and punitive logic, the pandemic. Second, the action of a series of social control mechanisms – internalized in the political psychology and culture of much of the population – that block any new or positive exercise of power.

While a state’s capacity is indispensable for good governance (and it is present in many ways on the island), the lack of social capital and the absence of rule of law force the management of the pandemic to rest on an autocratic model of public action. The promotion of citizen participation, the modernization of existing institutional functions and the construction of democratic legality should be axes that guide any technical-health agenda before COVID-19. Otherwise, there is no desirable solution to the Cuban multidimensional crisis that is being aggravated by the pandemic.

Biography

Johanna Cilano Pelaez is a lawyer, political scientist and historian, and Director of Government and Political Analysis AC. She specializes in research, management, and advocacy of civil society. She obtained her PhD in History and Regional Studies at the Universidad Veracruzana, holds a Master’s Degree in Political and Social Studies and graduated in Law from the University of Havana. Member Level C of the National System of Researchers of Mexico, and Specialty in environmental and energy policy and management in FLACSO Mexico. Director of Government and Political Analysis AC and research professor at the College of Veracruz. She has taught at the University of Havana, the University of Xalapa and the Ibero-American University of León, and has been a visiting scholar at FLACSO Ecuador. Email: direccion@gapacmx.com; jocipe2003@gmail.com, Twitter: @CilanoJohanna

Feature image: Amelia Peláez, Untitled (1947)