From hypotheticals to reality
At the start of this year, I asked my Public Law students to consider a hypothetical scenario in which a country was facing a serious public health crisis. At that time, the COVID19 pandemic was still just a disease in the news, something happening far away in China. We were looking at the topic of fundamental rights and freedoms under the European Convention on Human Rights and the Human Rights Act.
The public health crisis which was still largely confined to China seemed to be a good and relatable topic of discussion as it was in the news and I always try to get students to apply the concepts we study to current events. It was interesting to examine the methods that were being applied in Wuhan Province, which was the epicentre of the disease.
So what if this public health crisis were to happen in the United Kingdom, I asked. What steps could the state take to safeguard public health in the face of such a crisis? Would it be permissible to quarantine and isolate people? What if the steps taken to contain the spread of the disease involve restrictions of certain fundamental rights and freedoms? What rights and freedoms were likely to be affected by such restrictions? Would these restrictions be permissible and if so, on what basis? What instruments would the government use to establish and enforce these restrictions?
At the time, all these were hypothetical questions as far as Britain was concerned. After all, this was happening a long way from Britain. However, by the end of the semester, the university, like all other institutions around the country had been closed. Businesses closed. Bars, restaurants and other social spaces were closed. Everyone was being encouraged and later required to stay at home. People were required to practice social distancing and to wash their hands regularly.
Legal instruments were quickly crafted and enacted by the government with the full cooperation of the opposition. The government initially trusted people to comply without legal sanction. However, due to persistent violations, the state had to enhance police surveillance and enforcement. The lovely weather of a British Spring is tempting for many but by and large, the majority of the people have complied. Police in the UK and many other countries have been given powers to fine offenders who breach the rules.
So in a matter of weeks, what was a hypothetical scenario discussed in seminars was now a lived reality for all of us, staff and students alike. In future, when students of public law analyse these scenarios, they will be examining real-life situations, not hypotheticals. They will be discussing situations that they and many others experienced first hand.
Copy and Paste Governance
There is a lot of copying and pasting going on as countries try to deal with this new and confounding disease. However, copying and pasting should happen within the context of the countries and their specific circumstances. It is inappropriate, lazy, irresponsible and careless to just copy what other nations have done without considering the specific context. Lockdowns in developed countries have not relied merely on the use of the state's monopoly of force. They have also relied on financial incentives to businesses and employees. Wealthy states have intervened to cushion businesses and employees by paying the bulk of wages while employees stay at home. This is a major financial incentive to comply, which is not available in poor countries.
In a country like Zimbabwe, where 90% are not formally employed but ply their trade in the informal sector, similar financial incentives simply do not exist. The package that was announced for vulnerable members of society is barely enough to cover basics - the equivalent of less than US$10. The government is having to rely on enforcement by members of the security services. The trouble is their methods are brutal. Human rights watchdogs are reporting abuses by some members of the security forces. Similar abuses are also being reported in other countries where security forces are accustomed to rough methods.
Back to our discussions, there was a consensus that while fundamental rights and freedoms are important, the restriction of some of them was unavoidable to contain a public health crisis. Restriction of certain rights on grounds of a public health emergency is one of the permissible restrictions under most constitutions, as long as it is reasonable and proportionate. The view was that fighting a pandemic that poses an existential threat to society must take priority. But the students rightly sounded caution concerning potential abuses by the state, meaning there has to be more vigilance from human rights bodies.
Civil Society in a Lockdown
There is, of course, a major challenge for civil society organisations because traditional methods of organising and advocacy do not work during a lockdown. There has to be innovation around advocacy in a lockdown environment. In Zimbabwe, the Zimbabwe Lawyers for Human Rights has led advocacy through public interest litigation. Major legal victories have been won to ensure medical staff are properly equipped with PPE. The fact that the government had to be taken to court for this is embarrassing enough. While they have used social media, most civil society organisations have had to suspend or postpone their programmes and they have to figure out how they can remain active and relevant during an extended lockdown.
Opposition parties face the same challenges. It is not politically prudent to be in the usual oppositional mode of normal times as they risk being seen as petty or ignoring a major crisis. Yet at the same time, conditions of crisis are easy opportunities for crooks in and around the government. Many ugly things can happen during a crisis as people’s attention is otherwise diverted. In Zimbabwe, the government sneaked in the re-introduction of the controversial and corruption-ridden Command Agriculture programme during the lockdown. The opposition parties must, therefore, keep their eye on the ball, despite the public health crisis.
One problem for most CSOs is that their funding is often rigidly tied to specific programmes. There is no room for adaptation even if circumstances have changed so that funds could be put to other uses. Therefore, if funding was for malaria prevention, the fact that there is an imminent danger posed by COVID19 or by poverty on account of an extended lockdown does not permit redeployment of funds. This rigidity can sometimes leave CSOs appearing pointless to a suffering community. In this regard, funders and CSOs may have to consider flexible ways of dealing with such situations.
An interesting examination will be as to how countries reacted to the COVID-19 pandemic. Some countries, like Japan and Botswana, have declared a state of emergency, which is a more drastic response. This situation is revealing just how much power some governments have and that is not necessarily a good thing. However, supporters of such powers argue that it is good because it enables governments to take swift action in response to a crisis. Most countries have not gone so far as to declare a state of emergency but they have nevertheless imposed lockdowns in terms of using either or both primary and secondary legislation.
It might be argued that the power of the state to provide security has never been more popular or at least less questioned. I remember one student raising Hobbes, the philosopher we had studied earlier in the academic year, saying the state’s role in providing security of the citizen is the most important and it must have all the power it needs to preserve that security.
One question arose from our discussions and it is worth highlighting: if the state uses these powers and imposes restrictions and the people agree, will the state not get used to these powers and become reluctant to give them up? It is easy to assume that this situation brought about by the pandemic and the reconfiguration of power will be temporary. This could be too presumptuous. The risk of a one-off becoming a habit is real. This is why society must be vigilant.
The resilience of the Sovereign State
In another Public Law module, with a different set of students, we had the opportunity to examine the role of the state in recent decades given the predominance of free-market ideology. Was the role of the state becoming limited because of the rise of the regulatory state? What factors had led to the rise in the regulatory state? What are the technologies of global governance and how do they affect the sovereign nation-state? Was the sovereign nation-state outdated? I would urge students to imagine how the emerging pandemic from China would affect the way the state is perceived. Conditions of crises, I would say, often remind us that the notion that the sovereign nation-state is outdated are probably exaggerated.
The COVID-19 pandemic will have ramifications far beyond the health-care sector but also in the area of governance. For a start, institutions of governance have had to adapt to conditions which exclude physical and face to face meetings. Parliaments have suspended operations, which means executives are effectively ruling by decree but for how can this be sustained? But while some changes may be temporary, will the executive have the appetite to let go? There is a need for vigilance in monitoring the increase in power of the executive arm of the state.
Over the last 30 years, the notion of a globalised world has been fashionable. Indeed, talk of a borderless world was common, what with the increase in technological advances. In some ways, the pandemic is a manifestation of a globalised world. It is a global problem precisely because of the increase in movement between nation-states and continents. A disease that started in a Chinese province has quickly spread to the rest of the world thanks to the increase in interconnections and interdependencies that are part of the globalised world.
However, the pandemic has also demonstrated the resilience of the sovereign state. The first thing that nation-states did was to put up shutters on their ports of entry, closing their territorial spaces from foreigners. Others have made every effort to get their citizens back into their territories. Territorial control is one of the key features of asserting sovereignty. Protection of the citizen is one of the principal duties of the state.
Interestingly, South Africa has chosen to put up a new fence on the border crossing with Zimbabwe, from which it draws thousands of migrants each year. This seems to be a good time to put up such a wall with a difficult neighbour that has failed to handle its internal affairs for two decades now. Zimbabweans and others may find that it will become more difficult to cross to their wealthier neighbour. This risk will be higher if Zimbabwe fails to handle the pandemic in a manner that is consistent with its neighbour’s standards. Many people who do cross-border trading rely on the South African markets and a long term closure will be devastating. The issue of remittances and how they will be affected by the lockdown deserves a separate BSR.
Indeed, across the world, people will find that international travel will not be what it was before the pandemic. States may add new health tests to visa requirements and there may be more restrictions to visitors from specific countries. Everyone remembers what happened after the 9/11 attacks and how it affected international and air travel in particular. Similar and perhaps even bigger changes await the post-pandemic era. The disruption to supply chains connected to China may result in companies becoming more local or choosing other markets that offer similar incentives.
The pandemic has also demonstrated the vast gap in resources and capacity between states. Developed states are in a far better position to assert and defend their sovereignty than their poorer counterparts. For example, Britain has been offering its citizens in Zimbabwe emergency loans to help them leave the country. South Africa managed to evacuate its citizens from China. Zimbabwe, on the other hand, has done nothing to evacuate its citizens. Most poor countries are in Zimbabwe’s predicament. All people are born equal it is often said but clearly, your passport makes a vast difference.
State and the market
If you listened to neo-liberal rhetoric in the past few decades, one would imagine that the state has no role in economic affairs. The market has been touted as the solution. The state should not interfere in the markets. Economist Ha-Joon Chang has long criticised this perspective, arguing that “there is no such thing as a free market”. Conditions of crisis often lead to an unwritten consensus between the pro-state and anti-state factions, with even the loudest capitalists calling for the state to intervene to save their businesses. The much-maligned state suddenly becomes the saviour. Just over a decade ago, the state came to the rescue of banks that were on the verge of collapsing.
During this pandemic, the state has intervened in an unprecedented fashion. In rich states, the state is paying up to 80% wages of employees of capitalist businesses that are currently closed. It’s de facto nationalisation in all but name. Many businesses, including the airline industry, are pleading for bailout packages if they are to survive.
So the state, which had withdrawn from business in most developed countries following a series of privatisations in the 1980s, has had to return via the backdoor. Is there going to be a rest button to return companies to normal settings after the pandemic is over? I do not think it will be that simple. This is Ground Zero for many businesses. I suspect many will struggle to stand on their feet in the short-term and will continue to require support from the state.
The situation in Africa is likely to be far worse. The rich states have provided generous packages to their private businesses because it is necessary and they have the resources. They have indeed turned to the printing machine, under the guise of quantitative easing - another significant demonstration of the power of the sovereign state - but developing countries have far less capacity to do so. The decline in global trade and the prices of commodities will hurt African economies further.
This is why there is a clamour for debt relief for African countries. The IMF has already announced debt relief for 25 poor countries, the majority of them African. But there are countries like Zimbabwe (which has debts with institutions like the World Bank, AfDB and the Paris Club) that already have arrears and have not been paying their debts anyway. One question that will arise is how China will respond to calls for debt relief for African countries. It is estimated that a fifth of African debt is owed to China. Debt is an important instrument of control and influence. Will China give up some or all of its African debt?
Then again there is the issue of moral hazard. There is always a fear that debt relief simply means throwing good money after bad. This is because loans have been squandered or misused by some of these governments and their leaders. If they get debt relief, it simply encourages them to misappropriate and misuse future loans. It’s a catch-22 situation but poor countries will struggle to recover if they remain saddled with debts that they are unable to pay. Indeed, it would be scandalous if poor countries cannot allocate scarce resources to fight the pandemic and its charred aftermath because they have to repay debts.
This is where African countries need to build a strong network of cooperation to advocate for a common position. The absence of a coordinated response to the pandemic is not just an African problem. Across the world, transnational networks of cooperation between nations have been slow to respond and the WHO has come under fire for its response. It has been a case of each nation for itself. There is a need for better and bolder leadership across the continent and regions. In Southern Africa, the SADC which is often vociferous in political matters has had a lukewarm presence in the face of the pandemic. Even the Organ for Security, Defence and Politics chaired by Zimbabwe’s President Mnangagwa has been weakly represented despite the pandemic posing a security threat to nation-states.
The state and public health care
The pandemic has also exposed the collective folly of underinvesting in public health care. This is a problem across the world but more acute in poor countries. International financial institutions must take a share of responsibility. Neo-liberal inspired structural adjustment programmes promoted and forced upon developing countries by the IMF in the 1980s and 1990s required a reduction in state investment in social services, including health care. Of course, the misallocation of resources and corruption exacerbated the problem. African leaders, in particular, have been notorious for flying overseas to seek healthcare. They have no incentive to invest in the public health care system.
In the case of Zimbabwe, the state has long abdicated its role as the provider of public health care despite having inherited world-class public hospitals at independence. The major referral hospitals have become a pale shadow of their former selves. Medical staff have long complained of poor working conditions, wages and a lack of basic equipment at public hospitals. Doctors and nurses spent several months on strike last year. They only returned to work after telecoms billionaire Strive Masiyiwa and his wife Tsitsi stepped in through the charitable arm of their business, Econet to pay their wages. They have also intervened to assist during the COVID-19 pandemic.
The Masiyiwa intervention demonstrates the stark differences between the situation in developed and developing countries. In Zimbabwe, the state has abandoned an important part of its role in public health care to non-state actors. Whereas in developed nations the state is stepping in to pay wages of capitalist businesses, a capitalist business in Zimbabwe is stepping in to pay wages of government employees. This is why assessments as to the role of the state cannot be the same for developed and developing states given these nuances.
Interestingly, despite leaving Masiyiwa to intervene to end the long-standing strike in the health sector last year, other businessmen who are more proximate to the regime were quick to intervene following the COVID-19 pandemic. This was a panic reaction after the first death of an individual who worked with the government. These business elites decided to take over derelict facilities to prepare for the pandemic. What caused the toad to jump in broad daylight, to use an Achebe metaphor. The toad jumped because it realised that something was after its life.
They had realised the non-discriminatory nature of the pandemic and the decrepit nature of the public health system which they would have to use if they fell ill. Soon vast amounts of time and money were being deployed towards sprucing up private health care facilities. Whereas they had watched with no interest when Masiyiwa intervened to end the strike at public hospitals because it did not affect them, now they realised they had to act. True to form, there was a quid pro quo (something for something in common parlance). In no time, the government was announcing the return of the infamous Command Agriculture - the corruption-ridden scheme which has previously involved the same company, Sakunda which is involved in upgrading the private health care facility which will largely benefit the elites. The intervention was motivated by self-interest and profit.
Meanwhile, the government was slow to upgrade the dilapidated public health facilities. Up to now, the main facility in Bulawayo, Thorngrove Hospital did not have a single ventilator and yet the country’s second city has become the country’s epicentre of the pandemic. China stepped in to upgrade the public hospital in Harare, Wilkins, which is helpful but it comes at a price: the government becomes even more beholden to the Chinese.
The Zimbabwean government has been the example of a “do as I say not as I do” approach. After banning gatherings, President Mnangagwa held a political rally. After announcing a lockdown he and his wife have been gallivanting around the country. As his government encourages social distancing, they are meeting for party politburo meetings, having press conferences in small cramped rooms, wearing masks inappropriately. They have been defying everything that they are asking citizens to do, which sends a wrong message. If the leaders are showing a lackadaisical approach, the people will take after them.
Public health care cannot be left to market forces. When a pandemic hits, the public health care system must be strong enough to withstand the pressure. Of course, even the developed countries were caught under-prepared, but at least they have functional health systems and resources to swiftly build new facilities. The US has had to use drastic legislation such as the Defence Production Act to require companies to make specific equipment to fight the pandemic. In smaller countries like Zimbabwe, public institutions have stepped up to fill the gap, with the universities producing sanitisers, repairing and making ventilators. But the major lesson is that whether in developed or developing states, the government must take a more interventionist role in the public health-care.
Indicators as technologies of governance
One of the technologies of governance that we examine in public law is the use of indicators. Indicators simplify complex data and provide, as the name suggests, an indication of the phenomenon being described. In short, they are labels. For example, the GDP of a country is an economic indicator that provides an instant picture of the country’s wealth. A high rating on the Rule of law Index suggests that the country has high respect for the rule of law. Similarly to rank highly on the corruption index indicates that the country is very corrupt. Indicators are therefore a technology of governance in that they show where resources should be allocated or where to invest.
A lot of indicators are in use concerning the COVID-19 pandemic. The chief indicator is the testing for infection. Tests show the number and rates of infections, their geographic location and various other demographic factors including occupation and ethnicity. Each day the rolling news channels have presented indicators of the pandemic showing global, national and local trends.
However, there have been conflicts over indicators with concerns that some countries may have withheld data, thereby giving misleading pictures. In other cases, indicators have been misleading simply because countries do not have testing equipment or the equipment used was inaccurate. In either case, the data which informs these indicators lack credibility which makes them unreliable.
Indicators matter because they influence decisions over the allocation of resources. A country, province or city that has higher infection rates would need more resources than others with less. It also affects whether lockdowns remain in place or should be lifted. False indicators can lead to dangerous outcomes as they cause complacency. Controversies over indicators raise old questions such as the identity of generators of indicators and their agenda. Had devolution been implemented successfully in Zimbabwe - there would probably be better and more localised approaches. But alas, having everything centralized in Harare is proving to be a nightmare.
Transnational networks in global governance
Transnational networks are important actors in global governance. The major transnational network in this pandemic, which is an intergovernmental network, is the World Health Organisation (WHO). There have been serious conflicts over the role of this body, with US President Trump surprisingly suspending US funding to the world body in the middle of the pandemic. The US is the biggest funder of the WHO. President Trump has clashed with the head of the WHO, Dr Tedros Adhanom Ghebreyesus accusing him of failing to do his job and pandering to China.
Part of the conflict tellingly is over the handling of indicators, which I have just discussed above. Trump accuses the WHO of accepting “China’s assurances at face value” and that the world body wrongly relied on “China’s disclosures” which “likely caused a 20-fold increase in cases worldwide”. There are concerns that China withheld crucial data and the WHO was complicit.
While acknowledging the WHO’s shortcomings at the start of the global crisis, Trump’s critics accuse him of deflecting attention from his failings in handling the pandemic in the US. Others are concerned that Trump is simply playing into the hands of his adversary and abdicating US leadership in global affairs and that the Chinese will happily fill the gap. The impact of this decision will be felt during the current pandemic, but it is fair to say there will also be long term impact in respect of global governance as the two giants continue with their turf wars.
The apparent battle over the WHO is therefore merely a microcosm of the bigger on-going battle between the world powers. The world is likely to be less safe and more unstable in an era of unilateralism than multilateralism and cooperation between nation-states. For developing countries, the withdrawal of US funding is ominous because they rely on the WHO for public health needs. A weaker WHO is a blow on public health in poor countries and ultimately the world.
Nevertheless, this issue aside, the pandemic and the WHO’s role in it raises questions over the accountability of institutions of global governance. Unlike national leaders, who are elected politicians the international bureaucrats at organisations like the WHO are unelected. Elected politicians are accountable to their electorate, who have the power to reward them with new terms or to fire them by voting new leaders. The question of accountability of global agencies like the WHO and international bureaucrats who run them has always been an important issue in governance.
The conflict over the handling of affairs at and by the WHO is also in some ways a question of accountability and it should not be obfuscated by the geopolitical conflict between the US and China. Questions such as whether the WHO handled this matter properly; whether it is captured and whether it could have intervened and acted earlier require sober and dispassionate examination.
The role of experts in governance
The final governance issue concerns the role of experts. A financial crisis attracts attention to experts in the financial services community. Economists, finance, business and regulatory experts provide commentary - diagnosing the problem, analysing the trends, allocating blame and providing solutions. The Global Financial Crisis a decade ago is still attracting commentary, and occasionally the Great Depression of 1929 gets a mention. This global pandemic has brought forth a new set of experts - epidemiologists, scientists, virologists, vaccinologists, medical doctors, financial biologists, etc. It’s not often that these men and women who spent much of their time in laboratories and hospitals doing extraordinary work hog the limelight.
Indeed, at the start of the pandemic, there was concern that political journalists were unnecessarily overshadowing health and medical correspondents who were better informed about the science behind the pandemic. This criticism was informed by the view that the non-exp[erts should step aside and let the experts ask the proper science-based questions, not the political sensationalism that political journalists are wont to pursue. Indeed, it was common to see world leaders who often take centre stage appearing with their scientific advisers and deferring to them on matters that were obviously beyond their remit. In a financial crisis, even politicians think they know what to say.
The pandemic has brought into public view the role of experts in governance and not all of it has been smooth sailing. The British government for a time went on the path of pursuing what they called “herd immunity”, which drew criticism. It soon changed strategy and went for a lockdown following more information also produced by scientific experts. It cannot be an easy decision for non-expert politicians who rely on expert advice on a subject they know nothing about. Between two groups of experts, the politician has to choose one. The difference is the politician is accountable to the electorate but experts do not face these direct accountability questions.
The role of experts in governance has always attracted controversy for this reason - the lack of democratic accountability even though their expert advice has a profound impact on how the nation is governed. Questions of legitimacy and accountability of experts for their role in governance is a question that continues to attract research and analysis. The current pandemic will be fertile ground for examining the role of experts and questions of legitimacy and accountability.
The purpose of this BSR has been to sketch out the multiple issues arising in the context of the current COVID19 pandemic. The pandemic has profound implications upon society, not only in terms of public health but also concerning governance. We have seen permissible derogations from fundamental rights and freedoms, but we have also seen violations where security forces use violence to enforce the lockdown. We have seen the rise of scientific experts taking centre stage, but this also raises questions of accountability. Our political systems are designed to hold elected persons accountable but we see that experts wield a lot of power and their decisions or advice has profound implications.
We have also seen technologies of global governance in play - the role of indicators and the role of transnational bodies such as the WHO, which also raise similar concerns around legitimacy and accountability. These are concepts that people often study using historical examples but here we are in a moment of history, living the reality of rights derogations, witnessing the power of the state and the pulverisation of ideas about the state and the economy that may have seemed natural and obvious. If anything, the pandemic has reaffirmed the power of the sovereign nation-state and that the idea that it is outdated may have been grossly exaggerated.
Still, as we have observed, there are differences in how the pandemic affects nation-states, depending on their wealth status. All states will go through serious challenges but developing countries will have a torrid time. It is now a cliche, but the world will never be the same in the post-corona era. Where will Africa be and how does it respond to the challenges posed by the crisis? This is a question that demands the attention of the continent’s intellectuals.