Undetermined legal status and implications for Libya’s peace process
By Valerie Stocker
This policy paper aims to provide an overview of citizenship-related grievances in Libya and approaches to address these.
4. The constitution: a solution or source of further troubles?
The issue of citizenship and undetermined legal status is a major challenge for the Libyan state but has been overshadowed by the ongoing political struggles.
At present, the most viable avenue for its resolution is through the Libyan draft constitution, which remains the only post-2011 attempt to address the legal aspects underpinning the citizenship issue.
But the process has not been without its discontents, and has been boycotted by various affected groups.
A solution to undermined legal status in the draft constitution
The draft constitution, which was presented in July 2017 and is set to be put to referendum this year, proposes the following framework for addressing citizenship claims and grants:
Article (186) on citizenship 30
1) Naturalisation procedures shall be suspended for ten years from the date the Constitution comes into force.
2) The state shall be committed to settling citizenship claims submitted prior to 17 February 2011 in accordance with the law applicable prior to this Constitution.
The state shall also be committed to classifying the status of [Libyan] Arab Citizenship holders in terms of original or acquired citizenship.
3) Upon entry of this constitution into force, the use of registration lists for people of Libyan origins, applied at Libyan embassies, shall be suspended.
4) The High Judicial Council shall form a judicial commission chaired by a counsellor of the Court of Appeals, guaranteeing its independence and impartiality.
This committee shall review all cases of citizenship granted since 15 February 2011. The decisions of the committee shall be subject to challenge before the competent judicial authorities.
These provisions raise a number of questions that will be examined in more detail below. The starting point for this is the notion of “applicable law”.
In practice, there was no clear hierarchy of legislative and executive texts during the Gadhafi era, with policies often based on internal circulars or memos.
The primary piece of legislation applicable is Law 24 of 2010 on citizenship, but there are tens of government decrees on naturalisation, issued over a span of four decades, the applicability of which is uncertain.
The constitution does not clarify whether the settlement of claims predating 17 February 2011 shall take into account past decrees, some of which granted citizenship to entire population groups but were not implemented.
The notion of citizenship claims or, as it is worded in Arabic, “application for proof of citizenship”, also requires further elaboration.
The question is whether claims are meant to be assessed case-by-case or addressed collectively, based on existing lists such as the returnee registers and the Tuareg register.
Among communities of undetermined legal status there is a preference for the latter option, as people are not eager to “start from square one”. However, unravelling the bureaucratic intricacies of the past will be a challenge.
Recent statements by the Civil Registration Authority suggest that there is no comprehensive database of applicants and parallel registrants.
Under Gadhafi, naturalisation procedures not only changed frequently, but also applied in different ways to different groups.
Tuareg and Arab returnees from exile, for instance, were registered in “parallel” lists and at different locations, required to submit a different set of documents to prove Libyan origins.
All of these points are not necessarily shortcomings but mean that crucial – and contentious – details are yet to be worked out and put in future legislation.
According to article 10 the draft constitution, “ a law shall regulate the provisions of Libyan nationality and how it is conferred and withdrawn, taking into consideration national interest, preservation of the demographic composition, and ease of integration into Libyan society .”
Nevertheless, section 2 of article 186 suggests that Tuareg and Arab returnees from exile who have been registered in the past will obtain citizenship, as will people who used to hold Libyan Arab Citizenship based on their Libyan origins.
As per section 3 of article 186 of the draft constitution, no further citizenship claims based on Libyan origins (returnees from exile) will be accepted.
This, together with section 1, which suspends naturalisation for a period of ten years, means that people of foreign nationality or undetermined status who have not already submitted a claim will not be able to obtain Libyan citizenship in the foreseeable future.
These sections are perhaps the least controversial ones, as many Libyans – including people of undetermined legal status awaiting the settlement of their claim – think that past applicants must be given priority and integrated before the “gates of citizenship” can reopen.
Nevertheless, this course of action may cause complications.
First, little is known about long-term Libya residents (with or without Libyan origins) who remained unregistered and without formal status.
Second, the “right to return” is a principle that Libyan cross-border tribes and communities hold on to; they want Libyan society and legislators to acknowledge the existence of “diasporas” and allow people in these diasporas to apply when the “time is right”.
It is section 4 of article 186, which stipulates the review of all post-2011 grants of citizenship, that poses the greatest challenge at present.
This measure is ostensibly aimed at foreign mercenaries who were naturalised during the uprising to back up regime forces, and people who obtained documentation fraudulently, profiting from administrative corruption and loopholes in the aftermath.
Although a variety of people – with and without Libyan origins, old and new claims – appear to have obtained citizenship and national numbers since 2011, the Tebu are the only community to have seen what could be called “collective re-categorisation” within this time frame.
In implementation of Letter 743 of 23 May 2011, the civil registry office in Murzuq revalidated Aouzou registrants’ long suspended files, which later allowed national numbers to be issued to them. Whether this qualifies as grants of citizenship is a matter of debate.
Tebu representatives and activists argue that Letter 743 merely reconfirmed existing citizenship statuses that had been cancelled in 1996; in other words, lifted a ban on Aouzou registrants.
They object to the idea of setting 15 February 2011 as a marker to distinguish between “legitimate” naturalisations before, and “illegitimate” naturalisations after this date, arguing that if the intention is to reverse extra-legal and arbitrary naturalisations, then the review should start from Gadhafi’s takeover in 1969.
From the perspective of these activists, section 4 really is an ill-concealed attempt to strip Aouzou registrants of citizenship for the second time.
Disagreements over citizenship provisions had resulted in the amendment of an earlier version of the article, which said: “ all post-2011 naturalisations contrary to the  citizenship law shall be repealed ”.
Although the wording is more nuanced in the final draft, Tebu have reservations on entrusting a future commission with reviewing naturalisation and re-categorisation cases, given their community’s past experiences of tribal considerations weighing in on official decisions.
Article 186 is among the reasons why Tebu members of the Constitution Drafting Assembly (CDA) rejected the final draft of the constitution.
The Tuareg and Arab position is less clearcut. A Tuareg lawmaker and dignitary both thought that section 2 is a step in the right direction, and will force future state authorities to settle pre-2011 claims.
Yet, their optimism is not necessarily shared by their constituencies. Others worry that the constitution will – on the contrary – provide an excuse for state authorities to continue eschewing the issue.
From their point of view, settling pre-2011 citizenship claims requires no further legislation but should be done by current authorities on the basis of existing laws and regulations.
Challenges to the constitution and referendum
The drafting of a new constitution for Libya posits a dilemma. On the one hand, it is a declaration of principles desperately needed to reinvigorate the political process and help forge a sense of national unity.
It is also a long overdue step to lift some of the confusion surrounding Libyan citizenship and set basic guidelines for determining who is eligible.
On the other hand, the current draft lacks buy-in from Libya’s Amazigh, Tuareg and Tebu, many of whom feel that it does not do justice to the country’s ethnic diversity; nor guarantee their rights as non-Arab social and cultural components.
The drafting process was marred from the outset by the vacancy of the two seats reserved for Amazigh and intermittently boycotting on the part of the four Tebu and Tuareg members.
The latter accused their colleagues of not respecting the consensus clause for decision-making, which made internal voting on articles relating to national identity, language and minority rights contingent on the approval of at least one member from each of the non-Arab social components.
Finally, only one Tuareg member voted in favour of the final draft, while the other Tuareg and the two Tebu abstained from the July 2017 vote.
Given these and other procedural irregularities that the CDA is accused of, the validity of the draft constitution has been called into doubt. Further issues arose with the referendum law,
which was only passed in November 2018 and has been challenged in court. The renewed escalation of the civil war in April 2019 has once again disrupted the electoral timeline that was set earlier this year.
There is no visibility on when sufficiently conducive political and security climate can be attained.
Assuming that the referendum does take place on the basis of the existing draft, it will likely trigger unrest in South Libya.
Beyond citizenship, the broader controversy over minority rights is expected to curtail participation among Libya’s Amazigh, Tebu and Tuareg.
In joint declarations with the Amazigh Supreme Council, Tebu CDA members rejected the draft and called for a boycott of the referendum.
The Tebu’s (self-declared) Sultan, Ahmed Haki Musa, has condemned the constitution and called on Tebu political and military actors to join ranks against the “racist referendum”.
Members of the Tebu National Assembly have told the author that they expect their communities to largely abstain from voting, and that the passing of the constitution could fuel anti-state action and secessionist sentiments.
Tuareg activists in the South have also demonstrated against the constitution on several occasions since 2018, stating that the Tuareg CDA members did not represent them.
If boycott calls prevail, this will likely entail the forced closure of polling stations in a repetition of the 2014 events.
to be continued
Valerie Stocker is a researcher focusing on Libyan affairs since 2008. Covering a range of subjects including conflict dynamics, reconciliation processes, and migration, she has conducted fieldwork around the country and developed a particular interest in the southern region. She lived in Tripoli for most of the period 2008-2013 and returns regularly
European Institute of Peace