3 myths about the past and a new constitution
By Carmen Gehaa & Frédéric Volpib
Libya’s 2011 revolution enabled ordinary citizens and an emerging civil society to voice their demands on a variety of key issues including Libya’s new constitution.
New citizens and new politics: public engagement with the constitutional process
– A new public sphere
A new public sphere Citizens’ engagement with the political process gained a new prominence in Libya in the late 2000s with the reformist efforts of Qaddafi’s son Saif in the perspective of a possible succession to his father.
The facilitation of a new civil society and public sphere was part of a ‘liberalising’ drive designed to promote the reintegration of Libya in the international and regional order.
The new Libyan strategy to engage with the international community prompted the regime to allow for some freedom of assembly and association.
It is precisely this emergent civil society that contributed to the success of the mobilisation that would kick-start the Libyan revolution in February 2011.
On 28 June 1996 following a prison riot, 1,270 inmates had been killed in the Abu Slim prison. The truth about the massacre would only be acknowledged by the regime much later in 2009.
Emboldened by Saif’s reformist project, the victims’ families demanded that the regime give them information about how their loved ones had died.
Symbolically, the mothers of the deceased prisoners started organised sit-ins in front of Benghazi central courthouse on a weekly basis. The arrest of Fathi Terbil, the lawyer representing the Abu Slim families, on 15 February 2011 would set in motion a series of events that marked the beginning of the Libyan uprising.
Under the Jamahiriya, there were only about 30 registered NGOs which were service-driven and government funded. In post-revolutionary Libya, civil society organisations (CSOs) activities suddenly heavily outnumbered governmental initiatives.
In 2013, there were at least 2,700 formally registered CSOs working on a variety of issues, with a wide range of sizes, degree of specialisation and levels of membership.
The NGOs working in Tripoli and Benghazi can be categorised broadly between service-delivery and advocacy organisations.
Hundreds of groups registered to monitor the elections of June 2012.
Many CSOs were also working on the constitutional process, such as H2O, a youth-led organisation which mobilised thousands of citizens on issues of voter registration and participated in dialogues on the constitution.
Most of this new advocacy-driven work centred on dialogue, awareness, participation and broadly related to the ‘educational’ aspects of democracy.
Outside of any governmental initiative, hundreds of dialogues were thus organised throughout the country to encourage citizens to participate in the constitutional process.
The period 2012–13 constituted in Libya a new but short-lived ‘golden age’ of constitutional awareness raising, somewhat similar to what had happened before the writing up of the 1951 constitution, but with a wider engagement of different sections of civil society and less direction given by state actors.
The NTC Constitutional Declaration of 3 August 2011 had set a timetable for the transition that included the appointment of an interim government, the promulgation of an election law, the establishment of a Higher National Election Commission (HNEC), preparations for national Constituent Assembly elections and the appointment of a Committee of 60 to draft the constitution.
The elections to the national assembly that took place on 7 July 2012 were considered by many as a milestone for Libya’s democratic transition.
However violent incidents in the East during the elections changed the original timetable and led the chairman of the NTC Mustafa Abdul Jalil to announce that the constitutional drafting committee would be elected directly by the people in order to ease tensions with the pro-federalists.
These incidents stressed the importance of a national and regional dialogue in the process of drafting a new constitution.
Constitutional dialogues are generally an instrument to allow citizens to forge a meaning for the constitution. Ideally, this dialogue should incorporate both society-wide and institutional aspects.
Constitutional dialogues require a minimum engagement of the state institutions and particularly the judiciary in fostering society-wide constitutional discussion.
The institutional progress made in 2012–13 in Libya was however limited to setting up an election commission and announcing an electoral law for the election of the 60 members committee responsible for drafting the constitution.
No serious effort was made by the government or the parliament to discuss the constitutional process with the wider public. As a result, citizens’ definitions of priorities and views of political order solidified mainly as a result of civil society activism in the constitutional process.
NGOs and international organisations de facto took the lead in a nation-wide effort to revisit the constitution and by involving different categories of citizens (including women, youth, minorities, tribal leaders and armed rebels).
The role of citizens and informal dialogue is commonly highlighted in the literature as an important prerequisite to the design of a constitution.
The engagement of citizens can lead to a wider legitimacy of the constitution when this engagement is made to appear meaningful. Practitioners also note the importance of an engagement of stakeholders in constitutional debates particularly after conflict and regime change.
In 2012–13 in Libya, public opinion was highly mobilised in support of these dialogues. Many activists and intellectuals were wary of the case of Iraq where they claim that the constitution was ‘imposed’ and not locally driven.
At the time in the Libyan media, there were a wealth of debates on the constitutional process and what the new constitution should include. Newly empowered Libyan citizens wanted to have an influence on the writing of the new constitution and were trying to make their voices count.
In addition, beyond the constitution itself, this mobilisation around constitutional debates highlighted a range of issues that Libyans deemed crucial in the post-revolutionary context.
– Unanswered demands
To address some of the issues behind the debates about the constitution, we consider the results of a series of dialogues that took place between February and March of 2013 under the auspices of the FDL with the support of the United Nations Development Program (UNDP).
Selected participants in the dialogues and the survey were identified through a sampling of local stakeholders and aimed at ensuring that respondents represented the important social and political groups of each of the regions (including members of the military, former revolutionary, local councils, media, civil society, political parties and tribal leaders).
The dialogue topics were based on an initial mapping that took place the preceding year between February and May 2012, which brought together more than 550 activists, youth, women, revolutionaries, lawyers, intellectuals, civil society and political groups in Benghazi, Derna, Beyda, Misurata and Tripoli among others (“Libya’s New Constitution” 2012).
In line with what local think tanks, media and observers were reporting at the time, participants in these initial meetings considered to be priorities for the constitution: (i) the role of sharia and Islamic jurisprudence, (ii) the place of freedom and equality, (iii) the organisation of the political and administrative system, (iv) the place of minorities and (v) women’s rights.
Participants expressed divergent views regarding the role of religion, particularly regarding whether the sharia ought to be the main or the only source of legislation.
They were also divided on the question of equality between men and women, particularly in relation to a religious understanding of equality.
The issue of minorities was also a divisive issue, with some demanding the official recognition of the Tamazight language and others requiring that Arabic remained the only official language.
On the basis of these preliminary results FDL selected three sets of issues for focus groups to address: (1) the system of governance, (2) civil liberties and (3) regional priorities. Locations for these focus groups included post-conflict towns, locations with recurrent tensions and violence, towns with Gadhafi loyalists.
The following section presents the top-ranking propositions chosen in 15 dialogue sessions that brought together just over 900 participants in the Eastern Region (Benghazi, Derna, Tobruk and Ajdabia), the Southern Region (Sebha, Murzuq and Ubari) and the Western Region (Tripoli, Jadu, Bani Walid, Sirte, Misrata, Zawaya, Zleiten and Khoms).
The system of governance (nitham al hokm) was widely debated as the inequalities in the economy and political sphere had made government a sensitive issue.
Between 2012 and 2013 calls for a federal system emanating from, but not restricted to, social and political actors in the eastern region were on the rise.
When debating the constitution, participants in the dialogues saw the relevance of a new governance system for the relations between citizens and state, especially in terms of guaranteeing political freedom and minority rights, and improving economic fairness.
At the outset the most popular view was that constitution should give some form of autonomy to local councils. From the frequency of the answers provided, FDL noted that a majority of participants in the eastern areas supported a full-fledged federal system, while this was not the case in the west and south (“Libyan’s Recommendations for a New Constitution” 2013).
The other most popular view was that the constitution should account for decentralisation within a unified state. While the terms ‘federalism’ or ‘decentralisation’ were politically loaded, citizens who participated in the discussions across the regions had similar objectives regarding a redistribution of goods and services.
The only regional disparities were that these views were expressed via pro-federalist discourse in the East, while they were voiced as concerns about marginalisation in western areas (especially in those towns that were deemed not to have taken part in the revolution), and constructed as demands for better representation in the southern areas.
Concerning civil liberties (al horriyat al aama) FDL again estimated via the frequency of answers given that the most common view was that freedom is about political participation and accountability rather than private liberties.
The second most supported opinion was that freedom was about every aspect of life including religion, public expression and right of assembly.
Libyans had lived for 42 years of almost complete de-politicisation of public life with a regime that forbade political parties, independent media outlets, religious militancy and civil society activism, and it was unsurprising that a mutually agreed perspective on civil liberties was hard to come by.
Participants defined the issue of freedom as relevant to the constitution mainly because it facilitated accountability and prevented a monopoly of political power.
They linked the protection of civil liberties to the need to enhance political stability. In particular they stressed that these freedoms should guarantee the right of expression and association, as participants often wanted to form organisations, media outlets and political parties themselves.
In addition, they considered civil liberties to be useful for the development of new economic activities, again often with a personal agenda in mind.
Finally, although civil liberties were strongly endorsed by all participants, there was a clear willingness to mention their conformity to sharia law, as no one wanted to appear to be directly challenging this Islamic principle.
Finally regarding the issue of regional priorities, focus groups from different regions of Libya showed some significant differences regarding the prioritisations of the abovementioned generic themes.
In the Eastern region, the main priority of governance was the state control of oil and natural resources.
Participants identified this issue almost unanimously in connection to a need to reform the welfare state and to redistribute oil revenues more fairly.
They saw the management of oil and natural resources as indicative of whether the political system deserved the trust of its citizens. Hence, they wanted the constitution to include a mechanism for direct investment outside of Tripoli, as well to enshrine principles of transparency that would avoid mismanagement.
Carmen Gehaa – Department of Political Studies and Public Administration, American University of Beirut, Beirut, Lebanon.
Frédéric Volpib – School of International Relations, University of St. Andrews, St Andrews, United Kingdom.