Matteo Nicolini
Professor of Public Comparative Law, Verona University (Italy); Visiting Lecturer, Newcastle University Law School (the UK); External Partner, Centre for the Study of Law in Theory and Practice, Liverpool John Moores University (the UK); Senior Researcher, Institute for Comparative Federalism, Eurac Research, Bolzano (Italy)



Governing the Pandemic: Business as Usual?

Legal scholars tend to tackle the novel coronavirus (Covid-19) outbreak as ‘global business as usual.’ This attitude is also applied when considering its impact on Sub-Saharan Africa. Like the rest of the globalised world, the continent is experiencing its slow, but constant, acceleration,[1] which suggests we tackle it by adopting a transnational strategy.


The Coronavirus Government Response Tracker holds this assumption.[2] Its Stringency Index confirms that the measures adopted in Sub-Saharan Africa do not differ from those taken, say, in the Global North. These range from marginal responses (Tanzania, Eritrea, and Burundi) to the implementation of the WHO guidelines (Burkina Faso and Kenya). The latter are complemented with the declaration of a state of disaster (South Africa and Malawi), of emergency (Angola, Gabon, and Botswana), or of alarm (Equatorial Guinea). Sub-Saharan African countries have therefore joined the WHO global scheme, and adopted restrictions to fundamental rights by way of legally binding or soft-law measures.


The consequences are threefold. Firstly, the business-as-usual strategy is triggered by the convergence of constitutional law Africa has traditionally experienced under the influence of Western and global financial actors and conditionalities. Secondly, the compliance with the WHO guidelines[3] has stimulated a process of generalisation in how to tackle the public health emergency. Its governance has paved the way to a ‘pandemic democracy’.[4] Not only do the restrictions of fundamental right reflect the WHO’s ‘Health Order’,[5] but they are also replicable everywhere irrespective of societies and territories. Finally, such governance will have long-lasting consequences on African constitutionalism.


Fractal v Pyramid Patterns: Sub-Saharan African Context in a Time

of Pandemic

Although statistical models make the ‘rules of contagion’ predictable,[6] we should confront the pandemic by considering the legal ‘biodiversity’ of the world: Our response for Africa, therefore, should adopt a Sub-Saharan ‘African Perspective.’[7] Instead of disregarding its legal biodiversity, we should inflect our global response to the pandemic after its legal and environmental contexts.


An article recently published in ‘The Elephant’ platform[8] juxtaposes two patterns whereby the pandemic might be addressed. The first pattern is ‘fractaclic’, and echoes the features of African politico-legal traditions: ‘Every individual member of a fractal pattern is harmonious with the pattern as a whole’ This is reflected, for instance, in the Health Directives relating to Covid-19 (Government Notice 107 of 2020) of Namibia: in a time of pandemic, leaders in the community must ‘mobilise resources to provide basic necessities’ for those in need of them. This posture evidently complies with the WHO guidelines: when delivering food to ‘persons in dire need of it,’ ‘Hygiene and social distancing … be practiced at all times.’


This ‘informed cooperation of citizens’ contrasts with the ‘pyramids’, i.e. ‘artificial shapes made of three straight lines and rarely occur in nature without human intervention.’ Instead of favouring public engagement, pyramids concentrate ‘decision making power in a few hands’ thus excluding ‘the voluntary participation of the affected population at the bottom of the pyramid.’


The ‘Real’ Sub-Saharan African Perspective in a Time of Pandemic.

Concluding Remarks

African national governments have made resort to this pyramidal decision-making when joining the global response to the pandemic. The continent is therefore tackling the outbreak by adopting global standards, i.e. the derivatives of Western transnational modules. This have some bearing on African fractalic communities, which scarcely fit in the global pyramid.


As African law reflects community standards and rules, how the pandemic is being managed does not grasp the needs of African societies. ‘Conserving water’ is essential when fighting ‘against SARS-CoV-2 virus’[9]– but Sub-Saharan Africa suffers from endemic poor sanitation. It also has an ‘immunocompromised population’, which imposes narrowly tailored policies when fighting against the virus.[10] Its social, religious, ad cultural practices hardly square with mainstream WHO guidelines.[11]


In a recent judgment, the High Court of Malawi[12] suggested a ‘fractalic’ response, which requires us to ‘respond to the public health emergency … in a manner that will build resilience but also innovate for delivery of justice to those who need it at this time.’


This means arranging the response by adopting inclusive policies, which reflect not an abstract commitment to human rights and development, but the desired futures of the fractalic African societies. And this entails adopting a real Sub-Saharan Perspective when tackling its societal concerns in a time of pandemic.

* The article pertains to the research activities of the PRIN 2017 “From Legal Pluralism to the Intercultural State. Personal Law, Exceptions to General Rules and Imperative Limits in the European Legal Space” (PI – prof. Lucio Pegoraro – CUP J34I19004200001).

[1] WHO, COVID-19. Situation Update for the WHO African Region. External Situation Report 15. Date of issue: 10 June 2020 available at (accessed 15 June 2020).

[2] University of Oxford, Coronavirus GOVERNMENT RESPONSE TRACKER, (accessed 15 June 2020).

[3] OMS, Country & Technical Guidance – Coronavirus disease (COVID-19), reperibili al publication hub (accesso 9 giugno 2020). Cfr. N. Plohl, B. Musil, Modeling compliance with COVID-19 prevention guidelines: the critical role of trust in science, in Psychology, Health & Medicine, 2020, DOI: 10.1080/13548506.2020.1772988.

[4] T. Landman, L. Di Gennaro Splendore, Pandemic democracy: elections and COVID-19, in Journal of Risk Research, 2020, DOI: 10.1080/13669877.2020.1765003.

[5] B. Mason Meier, F. Kastler, Development of Human Rights through WHO, in B. Mason Meier, L. O. Gostin, Human Rights in Global Health: Rights-Based Governance for a Globalizing World, OUP, Oxford, 2018, 111.

[6] Cf. A. Kucharski, The Rules of Contagion. Why Things Spread – and Why They Stop, Profile Books, Londra, 2020.

[7] Cf. S. Ahmad Lone, A. Ahmad, COVID-19 pandemic – An African perspective, in Emerging Microbes & Infections, 2020, DOI: 10.1080/22221751.2020.1775132.

[8] Chief Nyamweya, The Shape of Our Post-COVID Future, in The Elephant, 23 May 2020,

[9] S. Haddout et al., Water Scarcity: A Big Challenge to Slums in Africa to Fight against COVID-19, in Science & Technology Libraries, 2020,


[10] S. Ahmad Lone, A. Ahmad, COVID-19 pandemic, cit.

[11] I. Festus Jaja et al., Social distancing: how religion, culture and burial ceremony undermine the effort to curb COVID-19 in South Africa, in Emerging Microbes & Infections, 9:1, 2020, 1077–1079.

[12] State v The President of Malawi et al ex parte Mponda, Soko et al (Judicial Review Number 13 of 2020) [2020] MWHC 6 (07 April 2020).