Statement on COVID-19: Racial equity and racial equality must guide State action

Presented by: United Nations Working Group of Experts on People of African Descent ¹

The UN Working Group of Experts on People of African Descent was established in 2002, as a Special Procedure, mandated in part to propose measures to ensure full and effective access to the justice system by people of African descent.  It is composed of five independent experts: Mr. Ahmed Reid (Jamaica), current Chair-Rapporteur; Ms. Dominique Day (United States of America), Vice-Chairperson; Mr. Michal Balcerzak (Poland); Mr. Sabelo Gumedze (South Africa), and Mr. Ricardo A. Sunga III (The Philippines). The Special Procedures of the Human Rights Council are the largest body of independent experts in the UN Human Rights system and serve as the Human Rights Council's independent fact-finding and monitoring mechanisms that address thematic issues in all parts of the world.

Date: 6 April 2020

The Working Group of Experts on People of African Descent calls on member states to commit to equity in the current public health crisis and to recognize the current risk that the historical exploitation of the bodies and resources of people of African descent poses to decision-making today, including driving racial disparities in access to health care and treatment. Structural racial discrimination may further exacerbate inequality in access to health care and treatment leading to racial disparities in health outcomes and increased mortality and morbidity for people of African descent. The 2001 Durban Declaration recognizes that "social biases and discrimination prevailing in public and private institutions" continue to create barriers for people of African descent, including in the realization of human rights, a particular concern in the global coronavirus response. States must recognize the specificity of needs in particular communities, or risk deprioritizing people of African descent as a matter of law and policy.

Lack of Representation in High Level Decision-Making

Equal protection requires States to consider who is disregarded, as well as who is protected, in response to this crisis on an ongoing basis. Interventions that appear neutral on their face may license or facilitate racial bias and stereotypes, without care and attention. Thus far, no protection efforts have centered public health issues specific to people of African descent. This raises the parallel concern that even the research and knowledge production developed in response to this crisis may fail to investigate specific barriers to care, or recognize the racially discriminatory intent or impact of policy.

To this end, in many States, high-level decision making relating to this crisis lacks necessary representation, expertise, and understanding to responsibly plan on behalf of communities of African descent. Yet, navigating the direct and indirect challenges presented by this pandemic requires understanding, rather than denying, diversity. As an immediate priority, States should leverage existing civil society expertise to define key concerns and to effectively implement policy.

Specific Health Risks

Several underlying health conditions that enhance risk and vulnerability disproportionately exist among people of African descent, including hypertension, cardiovascular disease, lupus and autoimmune disorders, and documented metabolic impacts of chronic racial stress. The intersections of race with gender, disability, class, and sexual orientation and gender identity further add to these complexities.

In developed states without universal healthcare, people of African descent face significant and disproportionate barriers in accessing care. Even in States with universal health care, undocumented people of African descent reported barriers to accessing health care even before this pandemic began.

In some cases, protection policies fail to consider risks specific to living conditions. People of African descent, who tend to live in more densely populated urban spaces, also face a heightened public health risk globally. Globally, people of African descent disproportionately lack access to adequate housing and water and experience food insecurity, even in developed countries, complicating the needs to self-quarantine, shelter in place, and physically distance.

In addition, the disproportionate presence of people of African descent in refugee and IDP camps, in jails and prisons, and in areas under the care and custody of the state presents a particular risk due to poor living conditions or conditions of confinement. Lacking freedom of movement, access to resources, and decision-making power, the most at-risk populations are unable to mitigate risks. The use of incarcerated people to produce equipment for the pandemic response, to dig graves, or for other means, without adequate protection against risk or vulnerability, and at substantial cost savings to States, is exploitative of people of African descent and reflect ongoing institutional racism.

The disproportionate representation of people of African descent in the service industries is also a source of risk and vulnerability. Widespread self-quarantine, physical distancing, and health mandates are heavily underwritten by the ongoing availability of a workforce that enables millions of people to reduce transmission by staying at home. In many States, people of African descent disproportionately serve as home health aides, carers, and grocery and delivery personnel who help hospitals and health care systems focus on the most serious cases, despite no public efforts to ensure their safety and protection. They also represent important lifelines for the economy. These essential personnel mitigate the transmission vectors and the burden to the overwhelmed health care systems. Yet, there is little public effort to ensure their workplace safety, access to protective gear, or stability. 

In this respect, the treatment of people of African descent serving in this crisis as disposable recalls historical exploitation and implies a social mindset that may fail to critically analyze the assumptions it makes about the needs and the risks to people of African descent in this crisis. Even where policies may appear race-neutral, the tolerance of risk without an explicit analysis based on race may facilitate discrimination and injustice. Decisions to limit testing to the desperately ill, the explicit or implicit failure to include undocumented people in financial rescue packages, and the failure to recognize the added risks to public safety in carceral practices of arrest and imprisonment without absolute necessity allowing has disproportionate impact on people of African descent in many states.

Racial Discrimination and Implicit Bias May Pervade Pandemic Policy

Some policy relating to this pandemic may license racial discrimination on the pretext of compliance. One important site of this is in the lack of controls sufficient to ensure the use of discretion does not result in racism, sexism, classism, homophobia, or other discrimination, even unconsciously. Research has shown that doctors under-diagnose and infer lesser pain and suffering reported by people of African descent. Today, in many countries, triage protocols leave impermissibly broad discretion to healthcare workers, pharmaceutical companies, and insurers to prioritize patients "with more value to society," to enforce age limits for care that all but acknowledge de facto forbearance based on socioeconomic status, or to broadly restrict necessary non-pandemic related health care and access to pharmaceuticals. Instructions to doctors that time, data, or consultation is a "luxury" in critical triage decision-making fails to appreciate how social conditioning perpetuates institutional racism and how the lack of protocols or even instructions to be aware of assumptions based on race – particularly at its intersections with disability, chronic illness, gender, sexual orientation and gender identity, and poverty – may impair racial equity in COVID-19 response. Instead, recognizing that unfettered discretion drives institutional racism, even among highly trained and educated personnel, racial justice experts consistently call for decision-makers to slow down.  One effective countermeasure to unconscious bias is to think more reflectively, giving less license to the primitive and reactive parts of the brain. The time involved here is not substantial, but instead reflects a mindset of reflection, rather than reaction.

In addition, policy initiatives at the community level may compromise care for people of African descent. Medical doctors have also raised the concern at a lack of testing occurring in communities of people of African descent. In some countries, protective measures for some communities to facilitate elections and mass attendance at events were permitted to directly endanger vulnerable populations of elderly people of African descent. In addition, the failure to disaggregate testing data by race obscures the ways this crisis impacts people of African descent specifically, situates the particular manifestations of this crisis in communities of African descent within the existing tolerance for racial injustice, and normalizes the aspects of this crisis that are particular to people of African descent. Already, where disaggregated data does exist, stark racial disparities are evident.

Politicization of the Pandemic

Nor may States politicize this public health emergency to evade their human rights obligations.  Disregard for the very people who must be protected in this crisis are evidenced in troubling public statements of the intent to suspend civil rights and human rights, including by instituting indefinite detention, denying access to asylum, suspending affirmative action laws and environmental regulations, and by curtailing reproductive rights and abortion access. These invite severe violations of human rights that will disproportionately impact people of African descent. States must navigate this crisis while recognizing that the public health emergency may create additional and escalating crises for marginalized populations that already enjoy lesser access to resources and to protection.

The Urgency of Guaranteeing Human Rights, Even After this Crisis

Working Group heralds States for recognizing the urgency of this moment, and for seeking to ensure the basic needs of citizens, but also calls on Member States to recognize the equal urgency in ordinary times.  It is the obligation of the state, as duty bearers, to ensure access to education, housing, internet, educational and health tools, and basic necessities required to guarantee human rights at all times, and for all citizens. This pandemic offers a stark counterpoint to claims that no resources exist to guarantee equal access to education or health, and key resources like internet and computers in many states.  In this regard, the pandemic does not present merely a new crisis, but complicates ongoing crises in communities of African descent globally.  No pandemic need justify the guarantee of basic human rights. 

[1] This statement by the Working Group of experts on people of African descent is provided on a voluntary basis without prejudice to, and should not be considered as a waiver, express or implied, of the privileges and immunities of the United Nations, its officials and experts on missions, pursuant to the 1946 Convention on the Privileges and Immunities of the United Nations. Authorization for the positions and views expressed by the Working Group, in full accordance with their independence, was neither sought nor given by the United Nations, the Human Rights Council, the Office of the High Commissioner for Human Rights, or any of the officials associated with those bodies.