Coordinating Colombia’s Pandemic Response

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Colombia lacks procedures for ensuring coordination among different levels of government.

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The Colombian response to the COVID-19 pandemic has brought to light many discussions concerning the decentralized model of government adopted in the country’s 1991 Constitution.

The first responses to the crisis came from municipalities and departments, as local mayors and governors imposed curfews and closed borders. In Bogotá, local authorities even imposed a “mock confinement,” to see how isolation would work in practice. Following these decisions, Colombia’s central government began to address the outbreak based on a constitutional provision rarely employed in practice that expressly imposes a hierarchical relation between the central, regional, and local governments “for the preservation of public order.”

Although the current situation is not as concerning as it is in neighboring countries such as Brazil, which has the second highest number of cases of any country in the world, the situation in Colombia is particularly important due to the limited capacity of the country’s health care system. Given this vulnerability, the measures the executive branch adopted to promote social distancing and quarantine are necessary to prevent an uncontrollable outbreak of the virus with catastrophic consequences.

Twelve days after the first reported case, the President of Colombia, Iván Duque Márquez, enacted Decree 418/2020 adopting a nationwide confinement. The decree is grounded in constitutional norms that allow the President to impose mandatory measures on subnational governments for the “maintenance of public order.” Moreover, when maintaining the public order is required, the Constitution establishes that governors and mayors are agents of the President.

Following Decree 418, Decree 420/2020 established more specific instructions to subnational governments, including guidelines for curfews as well as rules preventing subnational governments from adopting some measures—for example, Decree 420 required that local governments not restrict food transportation. This decree has been changed in order to open economic sectors and to set a course of action for the de-escalation of confinement measures.

The coordinated system adopted by the central government has exposed three main issues in Colombia.

First, orders from the central executive do not address the specific characteristics of some regions of the country. Addressing the pandemic in a unitary state with a hierarchical central-regional relationship reflects the issue of central authorities not taking into consideration specific characteristics of some regions. For example, for more than a month, at least three regions in the country remained locked down even though they did not have any reported cases, which has created unnecessary economic consequences in those territories.

These harmful economic consequences could have been avoided by establishing varying degrees of confinement measures depending on the particular situation of a territory. In addition, the government could have required strict monitoring of the situation, and, in case of an outbreak, could have required that regions respond immediately with a stricter confinement.

Second, governors and mayors are making decisions different from those issued by the President. Regional and municipal authorities have been deviating from the guidelines adopted by the central government due to the fact that the central guidelines do not respond to the actual situations of specific regions. For example, although the President authorized the road infrastructure sector to start working again, some municipalities believed it was too early to begin this de-escalation and did not allow construction workers to go back to work.

Some of these municipalities are taking illegal courses of action by acting against the central government’s orders. This reflects the lack of legitimacy and the inapplicability of the decisions adopted by the national government, which again fail to take into account the local governments’ situations.

A good way to address these concerns could be involving municipalities in the decision-making process—not necessarily requiring concertation or promoting co-decision-making, but allowing the central government to understand what is actually happening in specific regions. It has been uncommon to see the President meeting with local authorities to hear from them about their situations.

Finally, Colombia lacks a procedure for harmonizing measures among the different levels of government. Local authorities have to figure out the way in which they should be coordinating their measures with the national government, as there is no procedure for doing so.

A severe setback for Colombia’s coordinated system was recently exposed when the Administrative Court of Caquetá—a region that has not been affected substantially by the coronavirus—annulled a municipality’s decision about confinement measures due to the lack of coordination with the central government’s guidelines. Although the executive Decree 418 made it mandatory for municipalities to coordinate with the national government to impose pandemic response measures, nonetheless the decree did not determine a specific procedure to achieve coordination. Even though the mayor sent an email explaining the decision, the Administrative Court concluded that this was not an adequate coordination procedure because it occurred after and not before adopting the decision.

If all administrative courts follow this theory, it is likely that many municipal confinement measures will be annulled, leaving an eroded foundation for justifying local measures adopted in the past two months.

The national government should have adopted a procedure to coordinate subnational government responses with the measures established in Decrees 418 and 420. This coordination procedure should have had two main considerations: on one side, recognizing the national government’s lead in creating policies for the pandemic response, due to its stronger capacity to develop scientifically-backed measures, and on the other side, recognizing that urgent measures should be taken and establishing a very agile procedure for facilitating coordination of those measures. These procedures could involve technology, such as coordination via email or an app.

Colombia’s response to the pandemic and to future emergencies should involve a better coordinated system. Imposing a hierarchical relationship between the different levels of government may lead to responses that do not take into account the varying realities of the territories and their authorities. Coordination measures should include consultation with local governments and specific procedures to address emergencies in a better manner.

Juan Carlos Covilla Martínez

Juan Carlos Covilla Martínez is professor of administrative law at Externado University Law School, Colombia.

This essay is part of an ongoing series, entitled Comparing Nations’ Responses to COVID-19.