March 18, 2021

Though COVID-19 hit all of Latin America, Cuba is dealing with it from its own unique situation. The government's ability to control its main economic resources and regulate social behavior - important assets for putting measures in place to control the pandemic - goes hand in hand with the absence of the rule of law and the lack of democratic mechanisms. Different tendencies - such as persistent official restrictions of civic life and the weakness of civil society - converge now in a scenario that encompasses a severe economic crisis, no political changes and a de facto state of emergency.

AUTHORITARIAN MANAGEMENT OF THE PANDEMIC

Cuba is confronted with - and attempting to manage - COVID-19 while being deep into the process of reforming the institutions and the norms that resulted from the approval of the 2019 Constitution. An ambitious legislative calendar is trying to harmonize the previous legal dispositions with the new constitutional order, especially law n° 75 / 1995 on national defense.

But the governmental decisions stemming from the pandemic crisis are going against the opening planned in 2019 and have a strong impact on individual and collective rights in a context where the government is already almost completely functioning without opposition. So, during the past year, a certain number of independent organizations, activists and journalists have documented an increase in repression, that combines the typical response of the government to various emerging activist activities - feminists, afro, opposition, cultural - with increased vigilance and repression against ordinary citizens because of measures put in place to fight against the pandemic. Arbitrary arrests, police harassment, fines and legal proceedings have surged.

The economic crisis situation and shortages means that the repression is also impacting citizens trying to get goods and services that have become scarce, and are sometimes accused of dealing in the black market with respect to food and medical supplies. Some practices and different types of people, such as the accumulators, resellers and, recently, the coléros (those that wait in line to get rare products) have been criminalized when they sold their place to other citizens. Fines and sanctions are given for public heath reasons by a kind of neighborhood committee created during the pandemic, that has neither formal policing authority, nor legal rights (such as health inspection regulations for example) to justify their actions.

The discourse from the authorities that went with the handling of the pandemic was characterized by political willingness, but also rigor and by a strongly punitive approach. The transgressors are relentlessly pursued and these actions are justified by instrumentalizing requests by international agencies to control the impacts of the pandemic. 

LEGAL UNCERTAINTY

So the existing legal norms and standards are being used to limit freedom of speech, protests, associations and gatherings, and to break transparency standards as well as access to information. One of the tools used for this has been the law decree n° 370 /2019, officially used to "protect national sovereignty" and "control illegal social and economic activities" but which, in reality, is being used to limit freedom of expression. It has been criticized several times for its anti-constitutional nature and to being repeatedly used against journalists and independent activists for having "expressed opinions on social media". Complaints were also filed for use of other legal dispositions such as those linked to the expulsion of internal migrants (1997 decree 217) and to the freedom of artistic expression (2019 decree 349).

The legal uncertainty characterizing Cuba's state of emergency has furthermore been reinforced by measures taken by the authorities, only announced in official media outlets without having been decreed or been formalized legally. Indeed, measures taken to deal with the pandemic, often immediately implemented, are published in these media outlets and not in the official news. This removes part of their legal value and constitutes a violation of the rule of law. Furthermore, it opens the door to legitimize, in the future, other restrictions on citizens' rights. Among these important measures is the announcement on the border closings, the imposition of masks and the forced isolation of people.

The absence of legal measures and their publication in the official news compromises the principle of publishing the rights and violates legal safety since publication of laws encourages citizens to abide by the measures. Also, the issue of not knowing when the measures were starting led to complaints on retroactive implementation. This is true for the increased authority given to security forces, to the police, if not to organized civilians who have taken on surveillance duties, control and sanctions of citizens without a clear legal framework. So we saw the creation of "community level work groups, with participation from neighborhood organizations, subjected to the government, to apply above mentioned measures".

EFFECTIVELY A STATE OF EMERGENCY

Though Cuba has not officially declared a state of emergency, some measures and the organization of the country's governmental machine in response to the situation implies a de facto state of emergency. This is not the first time. We can remember that Cuba has never resorted to the legal declaration of the state of emergency in the past 60 years (though a state recognized in the constitution) to manage the frequent weather events (hurricanes, floods, droughts) that the country experiences. Since the start of the public health crisis, we have seen an increase in the authorities' (police, armed forces) power and duties and those of mobilized citizens, with additional powers and duties given to administrative bodies initially created to take action when there is a state of emergency (defense advice at their various territorial level).

Cuba's uniqueness with respect to most of the continent's countries is due to two key elements. First, the existence of a political regime that subjects all types of political and social-economic activity to the sole communist party. It has mobilized significant governmental capabilities to deal with, in a mobilizing and punitive logic, the pandemic. Secondly, the action of a set of social control mechanisms - internalized in a large proportion of the population's psyche and political culture - that block all hope for a new and positive[1] exercise of power.

Though a country needs a good organization for good governance (and it is definitely in place in many ways on the island), the lack of social capital and the absence of the rule of law requires that the pandemic be handled with an autocratic model of public intervention. Yet, on the contrary, encouraging citizen participation, modernizing existing institutional duties and building a democratic legal framework should be the motivating axes of a technical-public health program to deal with COVID-19. Without these elements, there cannot be a sustainable solution to the Cuban multidimensional crisis that has been exacerbated by the pandemic. Even if it manages to limit the damage caused by the coronavirus, the island will still be in a bind...

[1] For a deeper analysis of this, see Contester à Cuba, Marie Laure Geoffray (2012), Paris, Dalloz

Johanna Cilano is a political specialist and historian, Director of Gobierno & Análisis Político AC. She specializes in the research, management and defense of civil societies. She got her master's in political and social studies, her PhD in history and regional studies from the Universidad Veracruzana, and her law degree from the Universidad de La Habana. She taught at the Universidad de La Habana, Universidad de Xalapa, Universidad Iberoamericana León and El Colegio de Veracruz. She was a Visiting Scholar at FLACSO Ecuador. Her email and her Twitter account.

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