By Mattia Toaldo
Without an accompanying roadmap and buy-in from the population, a referendum on Libya’s draft constitution risks leaving Libya’s crisis of legitimacy unresolved.
Libya’s Constitution Drafting Assembly (CDA) approved the final draft of a new constitution on July 29. Four days earlier, French President Emmanuel Macron hosted internationally recognized Prime Minister Fayez al-Sarraj and his rival Khalifa Haftar in Paris, where they agreed to hold parliamentary and presidential elections “as soon as possible.”
By the beginning of the UN General Assembly on September 12, new UN Special Representative for Libya Ghassan Salamé is expected to put together a plan or roadmap, which could include UN support for the new constitution and subsequent elections—in which case the CDA’s draft constitution is the first step toward stabilization.
The draft constitution, an important part of this plan, falls short in many areas, but Libyans will soon have to decide whether it can address the deepening crisis of legitimacy of most Libyan institutions.
The draft constitution was approved without broad consultation or public debate, and the CDA itself was elected three and half years ago with an extremely low voter turnout—less than 50 percent of registered voters, who themselves comprised only one-sixth of the Libyan population—and since then has barely consulted with civil society and political actors.
The three most prominent minorities—Tebu, Tuareg, and Amazigh—had little representation in the CDA. For these minorities, some of whom were stripped of citizenship under Gaddafi, the draft risks deepening feelings of marginalization, especially as it places a ten-year moratorium on naturalization.
Regarding state institutions, the system of checks and balances is weak. Two directly elected legislative chambers, the Senate and the House of Representatives, will be based in Benghazi; the executive branch, based in Tripoli, will consist of the president, his appointed prime minister, and his government; and the constitutional court will be based in Sebha.
However, the president can hold a referendum to dissolve parliament (Article 109) and declare a state of emergency for parliament to ratify by simple majority (Article 187), under which he can curb “fundamental rights and liberties… to the extent necessary to maintain the public security and safety of the country” (Article 189).
Moreover, the constitution does not outline the election process for the High Judicial Council, the body which oversees the independence of this branch of the government, stipulating that parliament will draft a law (which will not require a special majority) to address these details (Article 126).
After years of institutional splits between rival coalitions—the anti-Islamist and mostly eastern Operation Dignity led by Field Marshal Khalifa Haftar versus “Libya Dawn,” a coalition of militias from mostly western towns of Libya—the new plan would approve the constitutional revision and hold elections to replace the UN-brokered Libyan Political Agreement (LPA) led by Fayez al-Sarraj.
The LPA, which had struggled to gain support and legitimacy, would (according to the prevailing reading in Cairo, Abu Dhabi, and in eastern Libya), expire two years from its signature on December 17, 2015, leaving the country without agreed ground rules.
The 2014 elections had shown that without such an institutional framework to force stakeholders toward consensus solutions, elections could trigger more violence, not stabilize the country.
Following the CDA’s vote, and according to the existing rules approved in 2014, parliament has 30 days to call a referendum on the text of the constitution. The constitution will have to be approved by two-thirds of voters, otherwise the CDA has an additional 30 days to amend it and hold another referendum.
Once in effect, as per the new constitution, parliament would then have three months to approve the laws regulating elections, which would be held within eight months of the approval of those laws. Over one year, this roadmap would give Libya a new constitution, an elected president, and two houses of parliament, potentially ending the current institutions’ crisis of legitimacy.
The man who holds the key to this process is the speaker of the House of Representatives Agila Saleh. The House needs to first approve a referendum law, which in turn would allow the Central Bank to disburse the money needed to organize the referendum on the constitution.
According to Libyan law professor Azza Maghur, the House has no legal standing to object to this law, but in reality Agila Saleh may well delay this vote for weeks if not months. Saleh opposes the CDA and has repeatedly tried to disband it, fearing that the constitutional roadmap and elections would sideline him.
An August 17 ruling by an appeals court in the eastern city of Bayda invalidated the vote by the CDA to approve the final draft; the case will next go to the Supreme Court in Tripoli, but this delay plays into his hands.
The internationally recognized Prime Minister Sarraj, however, sees the constitutional roadmap as an opportunity to stay in power for at least another year, that is, until new parliamentary elections are held. And while Khalifa Haftar may not like that the new constitution puts some limits on the powers of the president, he may support it as long as the draft allows him to run for that office (as a dual citizen he would have to give up his American citizenship).
Furthermore, a quick election would allow Khalifa Haftar to capitalize on his significant recent military and political victories: the liberation of Benghazi; the international recognition received at the Paris summit; and the support he has throughout the country, inversely related to the distrust of Sarraj.
If the elections take too long to organize, Haftar might suffer from popular disappointment with his management of these recently claimed territories, like Benghazi, which will require costly reconstruction. Meanwhile, divisions could emerge in his camp over whether to consolidate control of Cyrenaica or advance toward Tripoli.
One option is to table the constitutional process until there is less conflict and focus on a limited series of amendments to the existing LPA, which is effectively a mini-constitution that details the functioning of state institutions.
Within this proposal, the current Presidency Council would be reduced from nine to just three members (one of which Haftar’s supporters want for him).
Amending the LPA is the preferred option of many of Haftar’s supporters in Eastern Libya. It is backed by Egypt and even has some supporters among the forces supporting Sarraj. However, it would take too long to amend: while everyone could likely agree on having a three-member presidency, choosing these three members in the absence of elections could take a long time—as the UN and Egypt have learned.
Another way to overcome resistance to the roadmap is for the CDA to abolish the provision that blocks any amendments to the constitution for the next five years and leave it open to revisions—ideally based on a supermajority of two thirds to ensure consensus.
Libya would then have basic rules under which institutions function and elections could be held, but it would also have in place a system to change and improve those rules. As proposed by Lawyers for Justice in Libya, a local NGO, the referendum on the constitution should be valid only if it meets a minimum voter turnout and comes after a few months, giving the population enough time to read and discuss the new text, with elections held further down the line.
This would allow for a number of important benchmarks to be met in the interim: guaranteeing public services to the population; using the principles of fair distribution of resources present in the current draft of the constitution to address the economic and liquidity crisis; rebuilding Benghazi and guaranteeing the return of IDPs there and elsewhere in Libya; working to withdraw heavy weapons from urban centers; and starting local negotiations over security. All of this could be held under UN stewardship.
If complemented by this wider stabilization strategy addressing the concrete needs of the population, a road map based on an amendable constitution could be part of what Salamé seeks support for at the UN General Assembly in September. Without this broader strategy, a constitution born with such a flawed process risks being ticking nominal exercise that does little to stabilize Libya.
Mattia Toado is a Senior Policy Fellow at the European Council on Foreign Relations.