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.
5. Looking ahead
More information is needed to accurately assess the scale of the issue and anticipate challenges. Despite the research conducted on the issue of undetermined legal statuses, many questions remain unanswered.
It is particularly concerning that the overall number of affected people is unknown to both the public, and – as it seems – to current Libyan authorities.
This has critical implications.
First, undetermined legal status has so far not been taken into account as a vulnerability factor in humanitarian assistance and development programs.
Second, the potential fallouts of tackling this issue through the constitution and future legislation cannot be reliably anticipated.
Third, the lack of reliable data and public knowledge has left the floor to social anxiety and incitement against such populations. In the spirit of clarifying matters, it is encouraging that the Civil Registration Authority recently set out to produce an inventory of families listed within the “returnee register”, as well as any registered individuals whose citizenship status is undetermined, and that this was announced publicly.
The need for a roadmap
A comprehensive roadmap would be beneficial to steer current measures and prepare the ground for a definite settlement of unresolved citizenship claims.
As of June 2019, the uncertainty surrounding the constitution and the escalation of the conflict make it difficult to envision a policy approach.
Stakeholders could, however, use this phase of uncertainty to work on a more long-term roadmap for resolving undetermined citizenship claims.
This should take into account the provisions in the constitution and also look at what further legal and administrative steps will be needed to implement them.
In fact, the authorities that deal with citizen and foreigner registration have not been sitting idle but have taken a series of steps with regards to people of undetermined legal status over the past year.
In addition to its inventory of “returnee files”, the Civil Registration Authority formed a commission to review these files in terms of their authenticity and existence of supporting documents, granting it three months starting from 6 February 2019 to complete this task.
Meanwhile, the Authority for Passports, Citizenship, and Foreigner Affairs has instructed its branches to stop dealing with “Aouzou-born individuals whose family booklets were issued in Murzuq, Qatrun, Kufra, or Ajdabiya”.
The need for these two bodies to consolidate their databases and review documentation issued is evidenced by the confusion on who was naturalised, when, and under what circumstances.
However, caution is advised with administrative authorities taking matters into their own hands in the absence of clear guidelines. People designated in these decisions are – or will be – affected, even though the constitutional provisions on addressing their cases have not yet come into effect.
A roadmap that relevant authorities commit to could provide a framework for their internal data gathering and review efforts while also preventing them from enforcing unvetted rules and adding to the bulk of executive rulings that will need to be unravelled at some point.
The need for consultations and advocacy
Populations of undetermined legal status need to be consulted more extensively to forge consensus on proposed solutions and obtain buy-in for the constitution.
Citizenship is among the core contentious issues in Libya, yet it remains somewhat of a taboo. Although aspects of it are frequently touched upon in media and social media platforms and in statements made by state officials, there has not been any meaningful public exchange or dialogue on the issue.
Nor is there a comprehensive mechanism in place for such a dialogue. The solutions put forth in the constitution are contingent on future state institutions able to implement them, but also risk exacerbating tensions and violence.
Risks could be mitigated through a comprehensive, inclusive and open dialogue, that at a minimum gives a voice to populations of underdetermined status in the debate.
Furthermore, populations of undetermined legal status would benefit from having a common platform for advocacy and discussion. Affected populations lack a common platform and have little say on the political scene.
There should be a mechanism to engage with actors who advocate for the rights of specific groups.
With the exception of some elected representatives of tribes and communities affected by undetermined legal status, such as members of the CDA 50 and HoR, these actors are mainly found in the social domain.
Prominent Tuareg figures, such as Mulay Gdidi 51 and Abubakr al Faqhi Ingidazen, as well as Tuareg rights groups, have spoken out about lack of citizenship and related grievances in their communities.
Elders and dignitaries from the Sahelian Tuareg community presented their case to national-level bodies around the time the national number was implemented but do not seem to dispose of any permanent advocacy structure.
Tebu actors, on the other hand, do not have a concerted position on the issue of Aouzou registrants, as a result of internal divisions and leadership rivalries.
Perhaps the most consensual interlocutor is the Tebu National Assembly, which is presided by Adam Arami Kerki and has a wide membership.
In terms of traditional representatives, Ahmed Haki Musa is closer to the Aouzou issue than Zellawi Mina Saleh, although the latter is more widely recognized by Libyan Tebu as their customary leader.
Similarly, the Awlad Suliman, Hasawna and Mahamid do not appear to have made concerted efforts to advocate for the cause of their populations of undetermined status.
Due to the prevalence of negative associations with returnees, interlocutors from these tribes often avoid discussing the subject and diminish its relevance to their own tribe.
A tribal gathering was held in Sebha last year to discuss the issue, but no further information could be obtained. Notwithstanding this, the three tribes mentioned have social councils that in theory represent the interests of all of their tribe’s components.
An outreach strategy could also involve social councils with mixed tribal membership that represent cities or regions, such as the Supreme Council of Fezzan Tribes and Cities, or those that specialise in conflict mediation, such as the Libyan Elders Council for Reconciliation.
Although it would be positive to engage stakeholders of different tribal backgrounds collectively, local sensitivities need to be taken into account and may necessitate separate consultations.
Southern tribes are at adds on a number of grounds, and the right to citizenship is a key point of contention.
Interviews with Tuareg conveyed a feeling of betrayal, not only on the part of Arabs, who Tuareg may believe are better placed to “bend the rules in their favour”, but also by Tebu, who allegedly “seized their rights by force” and later waged war against Tuareg.
Likewise, Tebu often do not trust their southern neighbours to take an impartial stance on their citizenship grievances.
Until a durable solution has been found, efforts must be made to reduce the impact of the citizenship issue on livelihoods, peace and stability in South Libya.
As outlined in this paper, the presence of populations within Libya who see themselves as citizens but are not treated as such already has negative implications beyond their personal welfare, in terms of stability, peace and political participation.
Life in the margins and loss of livelihoods fuelled frustrations among southerners of undetermined status, while the increased militarisation in their midst exacerbated tensions with neighbouring tribes.
These tensions have contributed to inter- and intra-communal warfare, and in all likelihood contributed to the growth of a fractured security landscape that largely escapes government oversight yet forms part of the ongoing civil war.
In order to address these issues, various recommendations for the short, medium, and long term have been identified below. In the short term, the following measures can be taken to alleviate the affected populations’ immediate concerns, and promote dialogue and exchange:
For Libyan parties:
• Consider temporary legal protection for people of undetermined status to allow access to essential services and grant travel authorisation for medical reasons;
• Clarify the official position on the administrative number system and its applicability;
• Instruct the High National Election Commission (HNEC) to clarify voter registration criteria, review the eligibility of people of undetermined status, and ensure transparent dispute mechanisms for elections;
• Support administrative bodies – namely the Civil Registration Authority and the Authority for Passports, Citizenship and Foreigner Affairs – with their internal data gathering and verification processes, and follow up on these activities; and
• Make funding available for social development and reconciliation efforts in communities with a high occurrence of undetermined legal status.
For Libyan and international parties:
• Invest in further research to map the scope of undetermined legal status and disenfranchisement, the broader security and political impacts, and the extent of the social divide that resulted from past immigration and naturalization policies;
• Initiate and facilitate consultations with tribes and communities in which there are many cases of undetermined legal status, to hear their views on citizenship and on the solutions proposed in the draft constitution.
In doing so, it is imperative to make sure that these interlocutors are in touch with their communities, and not perceived as elitist or biased: to that end, include municipal officials, elders, civil society organizations, youth and women.
These consultations should aim to build local buy-in for a future process of addressing claims;
• Create and endorse a national platform for debate, to allow for people of undetermined status to express themselves and communicate with the general public.
Such a platform could consist of a website or social media page, and could entail public events. It should be moderated to discourage name-calling and hate speech;
• Ensure representation of affected communities and tribes at the UN-sponsored Libyan National Conference that is planned to take place in the near future; and
• Ensure that funding reaches vulnerable populations and does not exacerbate communal tensions.
In the medium term, the following measures should be taken for a comprehensive and inclusive approach to resolving issues of citizenship and undetermined legal status:
For Libyan parties:
• Design a comprehensive roadmap for addressing undetermined legal statuses, to coordinate relevant measures taken by administrative bodies and prepare the next stages of the process, in which legislation will be drafted, revised, and implemented; and
• Select and create a body of experts to study the legal, historical and social dimensions of Libyan citizenship. These experts should be selected by the legislature in consultation with administrative bodies and affected populations.
They should be given sufficient time to review past legislation and policies and present recommendations to the legislature. Their work should be transparent and involve public information campaigns to explain the intricacies of the issue to a wider audience and disperse misconceptions.
They should seek to demystify poorly-understood notions, such as return from exile, Libyan Arab origins, and Aouzou registration; and
• Consider the option of settling citizenship claims without recourse to further legislation, in a scenario where the constitution does not come into force.
If this course of action is agreed upon, the process of settling claims could be entrusted to a commission established under government oversight and composed of different stakeholders, including the head of the Civil Registration Authority, the head of the Authority for Passports, Citizenship and Foreigner Affairs, representatives drawn from affected populations, a judge or legal advisor, and the mayors of relevant municipalities.
For international parties:
• Support Libyan authorities in designing a roadmap by offering expertise on legal matters, social policy and conflict mediation; and
• Support the body of experts by offering expertise on legal matters, research tools and public relations.
Finally, there are a number of measures to be taken at a future stage, assuming that a constitution has come into effect and the context allows for the implementation of citizenship provisions:
For Libyan parties:
• The Libyan legislature should commit to a time-bound process to resolve citizenship claims based on constitutional and legislative provisions;
• State authorities should ensure that affected populations have been consulted, and that any research and preparations conducted in previous stages are taken into account;
• The judicial commission provided for in the draft constitution should work in a transparent manner to avoid any perceived bias in their revision of naturalisation cases; and
• The relevant authorities should implement projects to promote social cohesion and integration of naturalised populations.
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