On 20 September 2017 the UN Special Representative of the Secretary-General to Libya, Dr. Ghassan Salamé, announced an Action Plan for Libya at a High-Level Event on Libya on the sidelines of the UN General Assembly.
PART FIVE
3. Distribution of Powers and Resources
The third session in the agenda of the consultation meetings concerned governance and the distribution of powers and resources. Unanimous agreement was reached amongst participants on a number of general principles regarding issues related to this theme.
These issues include the need for effective decentralization, transparent management of sovereign economic institutions and national wealth, and equitable distribution of national resources.
The broad agreement of participants on these general principles did not extend, however, to agreement on how these aims can be achieved in practice.
From the outset of these discussions, many participants expressed their deep frustration with Libya’s governance. Many declared they had lost confidence in the state over the course of successive periods of troubled administration.
On the basis of these experiences, the participants submitted a set of bold proposals. These can be grouped as follows:
• Proposals to enhance the independence of sovereign institutions, public companies and municipal councils, isolating them from any political or factional intervention.
This independence will guarantee that these institutions continue to function for the remainder of the transitional period by keeping them isolated from conflicts and attempts to take them over;
• Proposals to ensure the continuity of basic services by providing support to municipal councils and strengthening their role as the institutions closest to citizens;
• Proposals that seek to overcome legal confusion resulting from the political division and discrepancies in laws and regulations issued by different bodies by finding new and practical formulations and solutions;
• Proposals to enhance transparency and equity in resource management, protecting the interests of the Libyan people by strengthening distribution and supervisory mechanisms.
The proposals are presented in greater detail in the following pages of this report.
3.1 Criteria for Appointment to Official and Government Positions Competence and merit
One of the key principles that gained the most consensus was the importance of basing appointments on merit. All appointments to government and senior-level positions must be based on proven competence, experience and specialization. These criteria should be applied as far as possible in all appointments.
The participants’ unanimous agreement on the need for meritocracy in appointments reflected shared frustrations with current appointments to government and other senior positions. It is widely believed that such positions are assigned to people who do not meet any competence-based criteria.
Instead, political, partisan, factional, regional, tribal and personal loyalties are all seen to play a role when important strategic responsibilities are allocated. Participants reported that jobs in certain government sectors are almost exclusively given to people from certain political or regional parties.
This includes appointments to the diplomatic corps and other parts of the administration which are reported to be discriminatory. Some participants claimed that the policy in such appointments amounted to systematic marginalization.
The following set of principles were agreed upon as a basis for ensuring merit and competence in appointments to government and administrative posts:
a. All Libyan regions and social groups should be equitably represented in government and other senior positions. However, this proportionality must be achieved without prejudicing the criteria of competence and merit and without falling into the trap of political and regional appeasement.
The participants noted that in the current system, entire regions are excluded from senior positions on the pretext of lack of merit. This pretext is false, they argue, since all communities include skilled men and women and therefore proportionality is achievable without lowering standards in appointments.
b. Some specialized skills may be lacking in some regions in view of successive decades of marginalization. In such cases all necessary material resources must be provided for training and capacity-building in order to achieve adequate representation in senior positions.
c. Respecting merit criteria whilst helping those Libyans who were deprived of appropriate training and rehabilitation opportunities will help ensure that factional quotas and personal loyalties are not relied upon for filling government positions. It will help guarantee respect for equal opportunity as an agreed-upon constitutional principle.
A number of detailed proposals were made about the criteria of competence and merit in appointments.
Of these proposals, the following included exceptions to the principles listed above:
a. Special criteria must be applied to ensure the representation of certain population groups in government and executive posts. Such criteria are needed to ensure representation of women and youth. But they will also allow for the injection of new blood into the administration and institutions, without falling into the trap of factional and regional division.
b. The government and administrative leadership must be renewed without resorting to the systematic exclusion of people with conflicting political views. This is especially important in the case of experienced people who have worked in state institutions since before 2011.
c. Integrity and financial transparency must be a basic condition for appointments to senior positions and all public functions. Accordingly, any person sentenced for a misdemeanour or felony related to public funds should not assume new responsibilities.
d. Some participants stressed the need to exclude problematic figures and people with partisan affiliations from appointments to positions of responsibility. This is necessary, they claim, in order to ensure a smooth transition to national stability.
Guarantees of fidelity and loyalty to the Homeland A significant proportion of the participants in the National Conference Process stated that government officials should hold only Libyan nationality, since assuming political, governmental, and security functions is incompatible with dual citizenship.
Some considered this requirement non-debatable and non-negotiable as it affects Libya’s national security and is applied in countries with long-standing democratic traditions.
From the discussions held on the Libyan nationality requirement, the following points emerged as contentious or in need of further examination:
a. Some participants called for this nationality requirement to be applied to all functions, in accordance with existing Libyan laws on nationality and functional positions. In particular, they argue, the prohibition on holding dual citizenships would be applicable as it was in line with judicial rulings issued after 2011.
b. Some participants proposed that the national ID number should be used as a precondition for assuming public functions. This proposal is aimed at preventing the duplication of jobs and accumulation of multiple salaries at the expense of the state budget. However, this criterion also reflects concerns felt by many Libyans about immigration and their national identity.
c. Other participants warned of the negative consequences of extending the nationality requirement to all functions. These objections relate to the following considerations:
– The need to wait for a consensual constitution that defines the rights and duties of Libyan citizens.
– Most public functions are neither sovereign nor political. Therefore it would be counter-productive to ban those who have not fulfilled the citizenship condition or who have not yet obtained a national ID number from performing some tasks and jobs, especially those who have gained local confidence and knowledge.
Generalizing this standard may also cause some exclusion of Libyans who have acquired other nationalities and marginalize some experts needed in some sectors.
d. Some participants argued that flexibility may be needed handle this issue. Individuals without a national ID number should be considered for some local and non-leadership positions, for example, in cases where human resources are scarce or in regions where there are few candidates.
Advocates of this approach cite legislation in other states allowing residents to hold public functions without bearing the nationality of their country of residence.
Objective mechanisms to oversee government and administrative appointments Some participants stressed the importance of having effective selection, monitoring and follow-up mechanisms in place to ensure that the criteria outlined above were applied in practice.
Suggested mechanisms include the following:
a. National competitions should be held for appointments to government functions in order to prevent favouritism and nepotism.
b. Job descriptions should be regulated to avoid any confusion or corruption.
c. Administrative posts should be advertised in a way that makes information accessible to all candidates, observers, civil society institutions, and members of the public.
d. Any term of office in any government or senior position should be limited to a maximum of four years.
e. Candidates should submit financial liability reports before assuming government responsibilities and senior positions.
f. An Institute of Public Administration should be established to prepare officials to lead government institutions.
g. The legislative institution should play an effective supervisory role in appointments to government and senior positions.
3.2 Distribution of Powers between National and Local Authorities
The participants of the consultative process agreed on the following definitions for the powers of the central government or executive authority:
a. Sovereign powers: These relate to issues of defence, national security, foreign relations, diplomatic representation, port management, customs, nationality, immigration, and asylum.
b. Strategic powers: These relate to the development of national plans in all areas. Such planning includes, most importantly, the management of institutions related to national and economic security and the development of the communications system and transport network.
c. Organizational powers: These relate to how government regulates state departments and the relationship between actors and institutions in various sectors. This regulation is implemented by proposing laws, setting standards, issuing regulations, and ensuring they are respected.
d. Distributive powers: These relate to the management of public, national and natural resources and their distribution to regions and citizens.
e. Arbitration powers: These relate to the protection of rights and settlement of constitutional disputes. In the view of most participants, the central government is the chief arbitrator. As such it has a duty to ensure respect for the constitution, to oversee the proper functioning of state institutions and to defend human rights against any violation.
The majority of participants agreed on the following definitions for the executive powers for local institutions and municipalities:
a. Service powers: These relate to the provision of public services such as road maintenance, water supply, electricity, sewage, sanitation, public health, and urban planning.
b. Public service management for citizens: These relate to the supervision of municipal branches and the conduct of civil registry operations.
c. Social mediation tasks: These relate to the role of municipalities in social reconciliation. Some participants emphasised the role of local government as a channel through which to represent the concerns of the local population to central institutions.
d. Distributive powers: These relate to the role of municipalities in distributing resources. The allocation of budgets to municipalities from the central government is one way in which national resources are distributed.
Municipalities also raise and distribute local revenues, and participants generally agreed on the need to empower local governments to collect and develop these revenues through investment and partnerships with other institutions.
e. Security powers: These relate to the role of municipalities in coordinating and managing security affairs at the local level. Such powers may include municipal guards, security directorates and regional armed forces cooperating and integrated with the national military and security institutions.
Participants agreed that the administration of the country involves an integral relationship between central government and local institutions, each concerned with public affairs and citizens’ needs.
However, different views were expressed concerning the nature of this relationship and the type of balance desired between their respective powers. Some of these differences arise from the exigencies of the current transitional period and the current constitutional and institutional instability.
The positions of the participants on central and local government powers is thus partly influenced by political considerations, leading to extensive debate.
These differences in stance are reflected in the terminology used to describe the desired relationship between central and local government.
Participants referred, for example, to a ‘decentralized administrative system’, ‘extended decentralization’, a ‘federal system’, local government, or a ‘parliamentary system’, etc.
There was no clear consensus, meanwhile, on what exactly participants wanted from the central government. Instead, the participants focused rather on what powers they did not want the central government to have.
Agreement was reached, accordingly, on the need to avoid the following negative consequences of centralization:
a. Centralization leads to the consolidation and resettlement of most national political, economic and service institutions in the capital.
b. Centralization causes significant inconveniences for citizens who reside far from the capital, since these citizens need to travel to the capital to complete administrative procedures.
c. Centralization has the effect of bringing prosperity and stability to some regions while marginalizing other regions encouraging migration.
d. Centralization undermines equal opportunities among citizens.
e. Centralization becomes an administrative pattern for public institutions, with officials refusing to delegate sufficient powers to the regions to conduct administrative operations.
f. Centralization bypasses collective administration and governing councils for the benefit of director generals and the chairs of boards of directors.
g. Centralization leads to an unfair distribution of resources and budgets within the country and is used as a way to direct resources to some regions and not others.
h. Centralization limits decision-making powers to an administrative and economic elite in isolation from representative and supervisory institutions.
i. Centralization means that political and government decision-making is limited to a narrow group who are not familiar with the needs and problems of people at local level. The members of this elite are typically from privileged backgrounds and many have lived abroad for long periods, disconnecting them from local concerns.
j. Centralization is perceived by many participants as merely a synonym for the administrative corruption of central officials.
k. Centralization leads to negligence by officials who do not visit remote areas.
l. Centralization in Tripoli is perceived by some as an example of betrayal and neglect of the city of Benghazi, the capital of the 2011 Revolution. Many participants objected to the transfer of all Libyan institutions and officials and international institutions to Tripoli after liberation.
Participants also stressed the need to improve local government. Many called for the technical and financial capabilities of municipalities to be strengthened so that they can perform their desired role, and avoid the problems that afflict centralized government.
Others emphasized that reforming local governance in Libya is not only a matter of administrative and institutional reform to increase the effectiveness of the administration. A more general and fundamental aim of local government reforms is to construct a new social contract that spares the country from conflict.
This can be achieved, it was proposed, by involving the broadest range of Libyan classes and regions in the management of public affairs at different levels.
…
to be continued
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