By: Julienne E. Grant, Louis L. Biro Law Library, University of Illinois Chicago School of Law
IALL bursary recipient 2022
Cuba seemingly fell “off the media radar” a bit during the COVID-19 pandemic. Below is an update to the post I wrote on July 31, 2019, just after Cuba’s new constitution came into force and shortly before the global Covid-19 pandemic hit. I’ve tried to summarize the most important government, legal, and economic developments since that date, as well as Cuba’s overall experience with the Covid-19 virus.
New Government Structure:
Cuba’s current constitution has been in force since April 10, 2019. It made radical changes to Cuba’s government structure, effectively eliminating the mid-level provincial assemblies and redistributing Executive-level functions. The latter was accomplished through various enabling laws, including Ley 136/2020, on the President and Vice President, and Ley 134/2020, on the organization and function of the Council of Ministers. Miguel Díaz-Canel Bermúdez relinquished his position as President of the Council of State in October 2019, and he now serves as President of the Republic. Díaz-Canel also serves as the First Secretary of the Cuban Communist Party (PCC), the most powerful position on the island. He assumed this role on April 19, 2021, when Raúl Castro stepped down just before he turned ninety.
Manuel Marrero Cruz serves as President of the Council of Ministers and is consequently the Prime Minister of the Republic, a new position created by the 2019 Constitution. Juan Estéban Lazo Hernández is now President of the Council of State by way of his position as President of Cuba’s National Assembly of People’s Power (ANPP).
There is a helpful diagram of Cuba’s government structure available on the Cuban government’s website. Keep in mind, however, that the PCC (and thus its overarching power) is not included in this chart.
New Legislation:
The Cuban government has promulgated a slew of laws and administrative regulations since my 2019 post. Many are implementing norms for various constitutional provisions, but several further restrict antigovernment speech/activity and lay down severe penalties for those who fail to abide. The following list is not comprehensive but highlights some of the more significant rules.
Ley 127/2019 establishes three types of elections: municipal, where delegates are elected to the Municipal Assemblies; national, where deputies are elected to the ANPP; and governors, a new position established in the 2019 Constitution. Ley 127/2019 also streamlines the Council of State, reducing its membership from thirty-one to twenty-one and effectively reduces the overall size of the ANPP from the current 602 deputies to 474, beginning with the 2023 elections.
Decreto-Ley 370/2018 (published in the Gaceta Oficial on July 4, 2019) precludes Cuban citizens from hosting their writings on foreign servers, including social media platforms like Facebook, and prohibits the circulation of “information contrary to the social interest, morals, good customs, and integrity of people.” In 2020, Cuban authorities used the decree-law against independent journalists, arbitrarily arresting dozens. The crackdown also included threats against journalists’ families and pressure to delete and discontinue their critical coverage of the government.
Per the Tenth Transitory Provision of the Constitution, the ANPP passed a new law of the People’s Supreme Court (Ley 140/2021) and codes of procedure (Ley 141/2021), administrative procedure (Ley 142/2021), and criminal procedure (Ley 143/2021), The original parliamentary bills for these laws are available through the website of the People’s Supreme Court.
Decreto-Ley 35/2021, and its complementary norms, require internet service providers to interrupt, suspend, or terminate services when a user publishes information that is “fake” or affects “public morality” and “respect for public order.” Further, telecommunications users have a duty to prevent the dissemination of “fake news or reports” and are precluded from using online services in ways that affect the “collective security,” “general well-being,” “public morality,” or “respect of public order.” Erika Guevara-Rosas, director of Amnesty International in the Americas, stated that the legislation “formalises digital repression, punishing the use of social networks, under vague categories of cybersecurity incidents.” Although the ANPP approved 35/2021 in April 2021, it was not published in its entirety in the Gaceta Oficial until August, shortly after large antigovernment protests had rocked the country one month earlier (see the later section on the ‘11J’ protests).
Although early drafts of the Constitution permitted same-sex marriage, this provision was not included in the final version that Cubans approved in February 2019. Same-sex marriage, however, is now legal in Cuba per the new Family Code (Ley 156/22), which provides greater protection for women, children, the elderly, and the LGBTQ community. Unusual for Cuba, citizens were involved in the drafting of the Code through various local meetings and interventions (Granma claims that over six million citizens participated), and the final draft was approved by referendum on September 25 of this year, although the voter turnout was only about 74%–an unusually low rate for Cuba.
On December 1, Cuba will have a new Penal Code (Ley 151/2022) in force, which introduces penalties for gender violence and crimes against minors and the disabled. Despite these improvements, however, many outside commentators and NGOs have expressed concern about some of the Code’s other provisions. For example, the Washington Office on Latin America (WOLA) lists five major concerns, including the punishment for individuals or organizations that receive foreign funding; the further prohibition of rhetoric challenging government authorities; and the codification of the criminalization of social media use. The International Institute on Race, Equality and Human Rights stated that the new Code “violates the exercise of fundamental rights such as freedom of expression, assembly, and peaceful association.” Ana Cristina Núñez, senior researcher at the Committee to Protect Journalists stated (as quoted in The Guardian), “‘With the new penal code, Cuban authorities continue to build an intricate and perverse legal regime of censorship and deal a devastating blow to independent journalists and outlets.’”
Ley 149/2022 and its associated regulation, Resolución 58/22, on personal data protection will enter into force on February 21, 2023. According to a Baker McKenzie summary, “The law aims to (i) guarantee the right to the protection of personal data; (ii) ensure due respect for personal and family privacy, and ensure protection of an individual’s image and voice, honor and personal identity; (iii) regulate the effective processing of personal data and the use of public information; and (iv) promote and foster a culture of data protection.”
COVID 19 in Cuba:
The Cuban government’s initial response to Covid-19, which emphasized door-to-door contact tracing and forced isolation, seemingly kept infections down. However, when tourists returned and the Delta variant hit the island in 2021, Cuba struggled to contain the virus, bringing its much-lauded health system to the brink of collapse.
Early on, the Cuban government recognized that the island nation’s geographic location and the U.S. trade embargo would make it extremely difficult to procure foreign vaccine doses and that it would need to develop its own. The Cuban government declined to join COVAX, a WHO initiative for the equal distribution of vaccines, and the country developed several internally: Abdala (named after a dramatic work that Cuban patriot José Martí authored); Soberana 02 (‘Soberana’ translates as ‘Sovereign’); and Soberana Plus (used as a booster for Soberana 02), all of which had successful clinical trials in Cuba and were given emergency approval there and in several other countries, including Mexico, Iran, Belarus, and Venezuela. Cuba was also the first country in the world to vaccinate children as young as two years old. It should be noted, however, that neither the WHO nor the U.S. Food and Drug Administration has approved any of the Cuban vaccines.
The WHO has a real-time COVID-19 dashboard reflecting positive case and fatality numbers in Cuba since January 3, 2020. The dashboard also reflects the number of administrated vaccinations. Vaccination rates in Cuba vary depending on the media source cited but are seemingly quite high.
Access to Government Information:
Some visible improvements have been made to Cuban government websites over the past three years. In general, these sites have been overhauled and are easier to navigate. The Cuban government’s site includes a directory of government institutions with links to the names and associated email addresses and/or Twitter accounts of the various ministers and institute chiefs. A pull-down menu indicates that there is an English-language version of the site, although the only English translations appear to be first-level, and the deeper levels of the site remain in Spanish. Granma, the official organ of the PCC, remains a useful source of Cuban government information in English, despite its obvious bias.
The Gaceta Oficial is available in PDF format starting in 2006, although older editions (1990–2005) are still in the clumsy .rar file format. The Ministry of Justice’s website includes a collection of judicial norms and historical compilations. The Supreme People’s Court website includes the names and photographs of the judges sitting in the six different chambers, although case opinions are still unavailable electronically.
The Economy and the ‘11J’ Protests:
On January 1, 2021, known as “Day Zero,” Cuba’s national peso (CUP) was officially unified with the convertible peso (CUC), thus consolidating a dual monetary system that had been operating for nearly three decades. However, this measure, designed to help the Cuban economy, could not overcome the deleterious financial impact that Covid-19 had on the island, which resulted in massive shortages of energy, food, and medicines. Cubans’ frustration with the government overflowed into the streets on July 11, 2021, as thousands of protestors demonstrated across the country—certainly a rare, if not unprecedented, event. Many of the protestors on that day (referred to as ‘11J’) were detained by Cuban government forces and have been put on trial. According to a report published in July 2022 (by Cubalex and Justicia 11J), the Cuban government had detained a total of 1,484 people in relation to these protests. Human Rights Watch also produced a report of the aftermath of the demonstrations, interviewing participants and examining case files, accusing the Cuban government of serious human rights abuses, “including harassment, arbitrary detention, abuse-ridden prosecutions, beatings, and other cases of ill-treatment that in some cases constitute torture.” As of this writing, the website of Justicia 11J, a female-led NGO that focuses on political detentions and prisoners in Cuba, indicates that 1,767 individuals have been detained for their purported roles in 11J, and 757 of those individuals remain in prison.
Concluding Thoughts:
Even with Fidel Castro’s death in 2016 and his brother’s recent ‘retirement,’ the Cuban government continues to suppress basic human rights, including the freedoms of expression and assembly. Miguel Díaz-Canel, speaking at the 22nd International Meeting of Communist and Workers’ Parties on October 29, confirmed the guiding force of socialism and the power of the Cuban state: “Our horizon continues to be socialist, even after the tragic disappearance of the socialist bloc in Europe and the disintegration of the Soviet Union, and despite the ferocious anti-communist campaigns that the powers of transnational capitalism have turned into a single thought dogma through powerful global media.” This glistening praise of the former Soviet Union was followed by a visit to Russia where the Cuban President met with Vladimir Putin and inaugurated a monument to Fidel Castro on November 22. One has to wonder how many more generations of Cubans will have to live under the strong-arm tactics of an oppressive one-party state that has a “solid foundation of friendship” with Russia.
Noteworthy New Resources:
Along with the links to resources provided above, the following materials offer more detailed information on some of the events and information discussed in this post.
- Scott Morgenstern, Jorge Perez-Lopez, and Jerome Branche, eds., Paths for Cuba: Reforming Communism in Comparative Perspective, Pitt Latin American Series, Pittsburgh: University of Pittsburgh Press, 2019.
- Carlos Justo Bruzón Viltres, “La Jurisprudencia como Fuente Formal del Derecho en Cuba,” 28(1) Díkaion (2019), 146–172. DOI: https://doi.org/10.5294/dika.2019.28.1.6. Spanish.
- Rafael Rojas, “The New Cuban Executive Branch: Constitutional Changes in the Power Structure,” Briefings on Cuba (November 2020).
- Bert Hoffman, ed., Social Policies and Institutional Reform in Post-Covid Cuba, Opladen, Germany: Verlag Barbara Budrich, 2021.
- Emily J. Kirk, Isabel Story, and Anna Clayfield, eds., Disaster Preparedness and Climate Change in Cuba: Management and Adaptation, Lexington Studies on Cuba, Lanham, Maryland: Lexington Books, 2021.
- Alejandro Aguayo et al., “How to Understand July 11 and November 15 in Light of International Human Rights Standards: An Intersectional Focus,” International Institute on Race, Equality and Human Rights (March 2022).
- Jason I. Poblete, “The Road to Freedom, Grounded in the Rule of Law,” Václav Havel Program for Human Rights & Integrity, Steven J. Green School of International & Public Affairs, Florida International University (May 20, 2022).
- Human Rights Watch, “World Report 2022: Cuba, Events of 2021.”
- Amanda Laura Prieto Valdés, “Novedad en Cuba: Proceso Especial para la Defensa de los Derechos Consitucionales,” 2(2) Revista Cubana de Derecho (2022), 82–102. Spanish.
- Ailynn Torres Santana and Julio César Guanche, “Cuba’s New Family Code Is a Window into the Political EcoSystem,” NACLA (November 11, 2022).
- Mark P. Sullivan, “Cuba: U.S. Policy Overview,” Congressional Research Service, In Focus (updated November 17, 2022).
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