Libya Tribune

By Alexander A. Decina, Darine El Hage and Nathaniel L. Wilson

Libyans need new elections to produce a competent and electorally legitimate government that the international community can support in navigating the myriad challenges the country faces….That said, elections themselves present a major risk.

.PART (IV)

Opportunities

Opportunities that can and should be fostered to mitigate violence and resolve disputes in advance of elections include the UN Support Mission in Libya’s National Conference, ongoing subnational and security-sector reform (SSR) talks, and the lack of a capable strongman or entity that can take the entire country by force.

The National Conference

Moving away from the shuttle diplomacy at the core of UNSMIL’s efforts to produce the Libya Political Agreement, the new UN special representative to Libya, Ghassan Salamé, has attempted to bring disparate parties together in a more dialogue-oriented approach.

In September 2017, Salamé announced an “Action Plan” to implement the LPA, which included a National Conference—a multipurpose forum to bring together Libyans from all factions, especially those who felt excluded from previous peace talks—to engage in discussion, strengthen the LPA, and give input to the Constitutional Drafting Assembly.

Ideally, the National Conference can renew national dialogue efforts, which will be necessary to bridge the gaps between Libyans for whom—thanks to the long-standing fragmentation of the country—the defining factor of their relationships with one another has been competition and contention.

Establishing a meaningful dialogue ahead of Libya’s next elections would be an important step to mitigating contestations and violence and preventing rivalries from becoming crystalized in electoral disputes. Although the conference has the potential to serve as a resiliency, it remains unclear that it will.

On July 17, 2018, the “consultative phase” of the conference was reported to have been completed, but it is still unclear what the next phase will be, how representatives will be or have been selected, and what input and impact the conference will have on UNSMIL’s action plan and other state-building efforts.

Whether the National Conference does make progress—before or after the elections—and discourages spoilers from disrupting the electoral processremains to be seen.

Subnational Talks and SSR Negotiations

Amid the conflict, Libyans have held a handful of subnational negotiations and reached local agreements that could serve as a basis for further reconciliation.

In late March 2018, officials, notables, and military figures from Misrata and Zintan—two localities long at odds that have engaged in violent clashes—concluded reconciliation talks in Tunis with an agreement to avoid further bloodshed, ensure a civil state, work toward national reconciliation, promote rule of law and a peaceful transfer of power, push for security-sector reform and a unified army under civilian control, and fight terrorism.

Earlier, in the December 2017 South Reconciliation Forum (also held in Tunis), local representatives from the Fezzan region came to a similar agreement, calling for unity and an end to violence.

Meanwhile, LNA representatives and military figures from Misrata have engaged in multiple rounds of talks in Cairo since June 2017 to discuss SSR.

In mid-February 2018, LNA spokesman Ahmed al-Mismari claimed that negotiators were close to reaching a deal, though it remains unclear what, if any, progress has been made to bridge key divides among the camps.

These subnational negotiations and talks over SSR are important first steps toward reconciliation and should be encouraged, but considerable progress is still needed.

Agreements on paper and the fact that competing parties are engaging directly are indeed positive developments, but conferences in Tunis and Cairo will not necessarily produce results on the ground without substantial support and pressure from the international community.

Limited Capacities

The inability of major actors such as Haftar’s LNA, Misratan militias, and other competing factions to use military force to take control of the country, its resources, and its institutions could serve as a resiliency.

These limited capacities have already prompted otherwise intractable actors to negotiate oil- and revenue-sharing agreements vis-à-vis the Tripoli National Oil Company.

To benefit from the sale of oil, western factions have had to negotiate with eastern factions that control Libya’s most lucrative oil resources and infrastructure.

Likewise, eastern factions have had to negotiate with the Tripoli National Oil Company to legally sell the oil resources they control to international buyers.

Whether factions’ limited capacities can be used to produce compromises on political and other state-building initiatives remains to be seen, but such opportunities will not come to fruition if competing actors continue receiving support that is not conditioned on their cooperation with one another.

Such support, if it continues, may result in some form of de facto partition rather than compromise.

Pre-Election Challenges

The UN Support Mission in Libya’s Action Plan calls for Libyan factions to agree on amendments to fully implement the LPA and legitimate the GNA, ratify a constitution, and pass election laws prior to general elections—all of which are contentious endeavors.

In the absence of international consolidation, these factions have not felt enough pressure to make progress on the LPA and are now likely to abandon this step. The GNA is therefore not, and likely will not be, officially enacted.

International actors pushing for elections hope the new government they produce can replace Libya’s competing governments, rendering efforts to legitimate the GNA a lower priority.

Now the question is whether Libyans can agree on a constitution and election laws.

If Libyans attempt to hold elections on an accelerated schedule—such as that outlined in the May 2018 Paris agreement—factions may well attempt to hold elections without a properly enacted constitution and rush election laws without reaching meaningful compromises.

These dynamics stand to make elections more contentious and more violent.

Drafting a Constitution

Libya’s lack of a durable constitution is a major challenge to holding elections. Its interim constitution—the 2011 Constitutional Declaration, agreed upon by the unelected National Transitional Council—and the amendments to it were the basis for the country’s 2012 and 2014 parliamentary elections.

These documents, however, do not provide guidance for presidential or new parliamentary elections nor do they clearly enumerate term limits and mandates for these bodies.

Because Libya’s governments are divided, it is unclear what the mechanisms to further amend the Constitutional Declaration would be.

Libyans have been trying to come to a permanent constitution, in which they can define mandates, powers, and term limits, since the February 2014 elections for the sixty-member Constitutional Drafting Assembly.

The CDA was tasked with drafting a new constitution within 120 days that, upon approval by parliament, would be put to public referendum, in which it would need to secure a two-thirds majority approval.

The CDA began working in April 2014 and continued its work as Libya devolved into violent conflict, producing multiple drafts between late 2014 and 2017, but, amid the violence and political contestation, these drafts did not make it to parliamentary approval or referendum.

The most recent draft was passed July 29, 2017 (despite eastern protestors storming the CDA headquarters to stop the vote), and, per Article 23 of the LPA, was then sent to the HoR for approval. The HoR has yet to approve the draft or make necessary preparations for a public referendum.

Key issues that remain in dispute include the lack of constraints on presidential power, the inability to amend the constitution once it is ratified (the current version contains a provision that prevents it from being amended for five years), and, perhaps most important, targeted

measures that restrict who can run for president.

The latter dispute is of particular concern for eastern factions because the current draft would prevent Haftar and any other dual citizen from running for president unless they formally renounce their non-Libyan nationalities at least one year before their candidacy.

In August 2017, constitutional battles took to the judiciary. The Beida appeals court ruled that the CDA’s July 2017 vote was invalid because it was held on a Saturday, attempting to exculpate the HoR from its responsibility to continue the constitutional process.

On January 9, 2018, the Primary Court of South Benghazi challenged the Beida court’s ruling, deciding that the CDA was outside the jurisdiction of the judiciary; on February 14, the Supreme Court based in Tripoli also ruled that the Beida court’s objections to the CDA’s draft were invalid, allowing it to move forward to the HoR.

In June 2018, the HoR began internal debates on the articles of the draft constitution, but it remains unclear whether the document will move forward. In mid-July 2018, the HoR announced it would vote on holding a referendum on July 30 and 31, but it failed to do so.

Members cited disputes over the parameters of the referendum and obstruction by demonstrators. Because eastern factions have struggled and will likely continue to struggle to consolidate around a presidential candidate, they may well be inclined to continue blocking forward progress on a constitution and elections until they have better standing.

If eastern factions see Haftar as the only figure who can coalesce support in Cyrenaica, they might attempt to hold elections without a durable constitution in place so they can prevent his candidacy from being blocked.

These factions could receive international support to this end as well. The May 2018 Paris plan—organized by France and tentatively endorsed by the United Nations—calls for elections to be held on a “constitutional basis,” but it remains unclear what this basis could be.

The plan does not call for the passage of the July 2017 draft, nor does it call for the CDA to make changes to the draft to make it more amenable to eastern factions.

If Libyans attempt to draw on a previous constitution or formulate a new document without the participation of the CDA, it would be a major breach in the path established by the 2011 Constitutional Declaration and the LPA, and, in turn, those who wish to disrupt the proceedings will capitalize on the misconduct.

If elections are held with no document in place to set restrictions on the president and parliament, or with a hastily constructed document that bypasses most factions and is widely disputed, contestation and violent conflict will be more likely.

In such a scenario, observers should expect to see heightened tensions and increased violence during the electoral process because the lack of constraints on presidential power, poorly defined term limits, and a severe dearth of clarity on the structure of governance will raise the stakes and prompt fiercer clashes over control of the ill-defined state.

Drafting Election Laws

With or without a constitution, Libyans will need new election laws to both structure and legitimize the High National Election Commission’s operations for presidential and parliamentary elections.

Previous election laws from 2012 and 2014 were complex, using a combination of first-past-the-post systems, single nontransferable vote systems, and closed-list proportional representation systems within contentious boundary lines to elect a combination of party list and independent candidates.

The convoluted and contentious nature of these election laws contributed to Libyans having a poor sense of who their candidates were and how the national system was relevant to them, resulting in staggeringly low voter turnout and contestations.

Unfortunately, the next election laws, should they come to fruition, may be convoluted as well.

According to Article 23 of the LPA, a joint committee of the HoR and the High Council of State is to agree upon draft laws for a general election that the HoR will then be responsible for passing.

The competing HoR and HCS factions will each attempt to draft the election laws in ways that are favorable to their own standing, and thus the compromises these laws will necessarily entail may create complexities similar to those of previous iterations.

Should Libyans follow the timeline set forth by the May 2018 Paris agreement, they will need to agree on election laws by September 16 to prepare for December 10 elections.

Success in drafting election laws is tied to the constitutional basis for the elections. If the parameters set forth by whatever is used as a constitutional basis are unfavorable to eastern factions, the HoR will likely block the passage of the election laws.

Likewise, if the parameters are unfavorable to western factions, the HCS will block passage. If members of the HoR-HCS joint committee do draft election laws but the laws they pass are unfavorable to their respective wider bodies and associated militias, then elections may come to fruition, but they will be more controversial and more likely to provoke violence.

Given the numerous openings for obstruction, coming to election laws that satisfy all the necessary parties will be no easy feat, and thus the possibility that no such law will pass and that elections will not be held is very real.

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Alexander A. Decina is an Amman-based analyst and Boren Fellow focused on conflicts throughout the Middle East and North Africa with particular attention to factional dynamics, security and political developments, and diplomatic efforts in Libya and Syria. A Middle East and North Africa consultant, he conducts predictive and diagnostic analysis on conflicts across the region for private-sector clientele.

Darine El Hage is a regional program manager for North Africa at USIP’s Center for Middle East and Africa based in Tunis, Tunisia.

Nathaniel L. Wilson is a program officer covering Libya for USIP, leading its programming in rule of law and local reconciliation peacebuilding initiatives.

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