By Mary Fitzgerald and Tarek Megerisi
The question of housing, land and property rights is so difficult—and so important—because it touches on the fundamental question facing post-2011 Libya: what do Libyans want the new Libya to look like?
This paper will examine both the history and the current impact of Qaddafi’s redistribution laws. In addition, we will ask what we can learn from the failed efforts to resolve these property conflicts since 2011.
II. THE QUESTION OF PROPERTY AFTER THE 2011 UPRISING AND THE CHALLENGE OF REFORM … cont.
Several lawmakers worried that a blanket compensation scheme would make a major dent in the country’s finances: the market value of properties, particularly in urban areas, had rocketed after the revolution. According to some estimates, property and land prices increased by 50 percent yearly from 2012 before levelling out in 2014.
Several reasons are given for the rise, including the fact that armed groups and warlords flush with cash decided to plough their money into property and land. In 2012, Shaker Dakhil, one of the founders of the Rabitat, estimated that it would cost at least $15 billion to compensate Libyans whose property was confiscated. 27
The question of compensation more generally was a contentious one after 2011. Public opposition to a law allowing for compensation of former political prisoners was so strong that the legislation has not been implemented. Some observers raised concerns that full compensation for large property owners, or complete restitution of their property, would “reinstate an extremely wealthy property owning elite… and the political sustainability of such a policy is questionable”. 28
Official efforts were also complicated by ambiguities surrounding ownership. In fact, the full scale of property confiscation under Qaddafi remains unclear. The High Committee for the Compensation of Properties states that it had gathered 25,000 claims by the time it stopped accepting applications in 2010, of which 8,000 had been processed before the 2011 revolution began.
In addition to the immediate fallout from Law Number 4 of 1978, many properties had changed hands several times over the regime’s lifetime. Property seized by the regime, particularly housing, was redistributed to Libyans who, by 2011, had been residing there for decades and may also have a legal claim to the property due to use rights granted under Qaddafi’s laws and sometimes formally documented. Some current occupants are third parties who legally acquired use rights, either through buying the property or receiving it as a gift, from the secondary party.
According to one Libyan lawyer’s estimate, as much as three quarters of Tripoli’s population are living in or using confiscated property. As many as 1.5 million people could be displaced in the capital alone if seized property is simply returned to its original owners. 29
Most Libyans working on this issue, including those involved in lobby groups founded by former property owners, acknowledge that mass restitution is unrealistic.
The destruction of official property documents in the 1980s made it even harder to ascertain ownership. The number of forged deeds soared in the aftermath of the revolution as people saw opportunity in the collapse of the old order.
“There is a huge problem with forged claims… The challenge many people have faced is when they put in a claim, they discover there are three or four others also claiming ownership of the same property.”
Property owner in Tripoli, October 2014
The ministry of justice under prime minister Abdurrahim el-Keeb laid the groundwork for what later became a proposed amendment to Law Number 4. 30
It was submitted by Ali Zeidan’s justice minister, Salah Marghani, in March 2013:
“The issue was considered high priority in the early post-revolutionary stage because it was thought much of the root of the problems we were experiencing lay in grievances over what had happened under Qaddafi,” Marghani explained. 31
The draft addressed restitution and compensation issues arising from the implementation of Law Number 4 and subsequent laws which had allowed the state to seize private property. It was put before the national congress and published on the website of the ministry of justice for comment.
The draft law included a framework whereby occupiers of residential properties would be given one year in which to relocate using a loan from the government or else would be allowed to negotiate with the owner to buy the property outright, using the same loan. It allowed a timeframe of six months for the occupiers of commercial properties to negotiate with the owners after ownership had been established through a legal process. The draft law was received badly by the Rabitat and other groups, who criticised it because it did not propose to completely rescind Law Number 4.
A legal review commissioned by USAID described the law as “an important first step to the resolution of long-standing conflicts over housing, land, and other property in Libya”. 32 However, the review found that while the draft law laid out many of the difficult policy decisions required for any programme of restitution, it did not state its objectives, making it difficult to design an appropriate approach to restitution.
“The draft law is broad with insufficient detail to accomplish restitution, to create certainty and land tenure security for Libyans, and to protect, as much as possible, all innocent parties,” it noted. 33
Another draft bill was submitted by the legislative committee of the national congress. It addressed both Law Number 4 and Law Number 120 of 1971, under which tribal lands had been seized and redistributed to regime supporters. 34
But the legislative committee experienced difficulties with the latter element, particularly in relation to tribal land in western Libya. “We found it difficult to find a solution which satisfied the parties that seized the land and the original owners,” said one committee member. 35
Constituents in those regions pressed their representatives in the congress to oppose the entire bill on those grounds. In fact, several congress members reported that the question of property was one of the most common issues raised by constituents. The legislative committee concluded any future draft would have to decouple Law Number 4 from Law Number 120.
Efforts within the congress to address the property issue were stymied for a number of reasons, not least the inexperience of its neophyte lawmakers and the increasingly difficult environment in which they were working. Apart from the lack of political experience shared by all congress members, a number were returned diaspora Libyans who admitted their knowledge of the country was limited. “Many of us felt overwhelmed by the challenges we faced,” said one. 36
Political infighting prompted some members to boycott sessions for extended periods, slowing down decision-making. The congress itself was stormed by armed groups on several occasions.
In addition to deteriorating security, congress members were faced with perhaps their most serious challenge in July 2013, when armed protesters shut down oil ports in eastern Libya, slashing the country’s main source of revenue for almost a year. “The reason the law did not go anywhere had little to do with the law,” said one congress member. “Internal strife together with the continuous attacks on congress plus the financial impact of the oil blockade all ensured it fell through the cracks and way down the priority list.” 37
Some congress members baulked at the anticipated cost of any national compensation or restitution programme. In June 2013, the government’s commitment to the construction of housing and the infrastructure was estimated at $100 billion. 38
Many others believed the timing was not right, given that Libya was still in a transitional period. “They felt it is best to leave the matter to the permanent legislative authority after the constitution is instated,” said Ahmed Langhi, a member of the legislative committee involved in drafting the bill. 39
In a congress riven by factionalism, it was noteworthy that the bill failed to gain support across the political spectrum, from Islamist to more liberal-leaning currents. The Rabitat and some congress members whose families had lost property as a result of Qaddafi’s policies believed much of the political opposition came from members of the congress who had themselves benefited from those policies—some were living in confiscated properties—and would lose out if such a law was passed.
“We have a black list of those members and we’re planning to prosecute them in the future once they lose their immunity as parliamentarians,” said Traina of the Rabitat. “I think that was the main reason congress couldn’t pass the law.”
The organisation also claimed that documents they had submitted to the land and property registry office in Tripoli were destroyed just before congress began debating the issue. This fed a perception within the Rabitat that vested interests were determined to block any effort to resolve the issue.
Relations between the Rabitat and congress became increasingly strained. On 16 June 2013 the congress issued a statement urging patience from claimants and pledging to draft legislation to rescind unjust laws and solve the problems that sprang from these laws. However, it did not mention anything specific about the draft property law already submitted to congress.
Three days later, the Rabitat issued a blunt statement in response. They said they had already given congress the time it was requesting, only to see more abuse of former owners’ properties. After expressing concern over the state’s weakness in both legislative and executive roles, the Rabitat ended their statement on an ominous note, saying they would hold congress and the council of ministers “responsible for any drop of blood that may be shed as a result of their complacency”.
As their frustration with conventional political and legal avenues grew, the Rabitat and other civil society organisations approached Libya’s highest religious authority, the grand mufti Sheikh Sadiq al-Gheriani.
They believed that framing their cause in terms of religious precepts—sharia law offers almost inviolable protection to private property—would help expedite their campaign. Furthermore, Article 1 of the 2011 constitutional declaration provides that sharia is the principle source of legislation.
Gheriani, an ultra-conservative whose frequent interventions in political matters often prompted controversy, wielded significant influence within the Islamist-dominated national congress. Gheriani took up the matter of property rights, discussing it on his television show and calling on the congress to swiftly address long-standing grievances through legislation. He also warned against attempts to reclaim property by force, explaining that such behaviour was religiously prohibited due to the communal tensions it caused.
Gheriani issued several fatwas regarding Law Number 4, several of which were in response to public queries about individual cases. The entire Fatwa Council, which is headed by Gheriani, issued a fatwa in November 2012 urging the government to legislate for the return of properties to their original owners. It warned that “many of the original owners want to regain their property by force or arms. This is a serious matter and could lead the country into a spiral of violence”. 40
Many property owners considered Gheriani’s role key in highlighting their case, even if they deplored his views on other matters. His calls for segregated education and workplaces and his support for Islamist-leaning armed factions made him one of the most polarising figures in post-Qaddafi Libya. In fact, the property issue was perhaps the only one on which more liberal-leaning Libyans found common ground with the mufti.
Ahmed Traina of the Rabitat argued that Gheriani did more to support them than the government. Largely missing from the debate on laws related to housing, land and property rights are the opinions and experiences of the occupants of contested properties. They have not organised as the former owners have done and they have not lobbied regarding the proposed legislation.
“The voice of the occupants has not been heard. Their lack of organisation can be explained by the fear of being accused of being Gaddafi loyalists,” said Dr Suliman Ibrahim, director of the Centre for Law and Society Studies at Benghazi University. 41
In a paper he co-authored on the issue, Dr Ibrahim noted: “We have had particular difficulty interviewing occupants of disputed properties; people have told us that they would be too ashamed to talk to us, that they came from “outside” Tripoli (such as from Tarhouna) and that they have acted against Sharia, a view that was supported by a recent fatwa from the Grand Mufti al-Gheriani.” 42
Even if legislation addressing the subject of property rights had been passed during the lifetime of the congress, there is the question of how such a law could be implemented without a wider reconciliation framework or even enforced without a fully functioning judiciary and state monopoly of force.
The country’s atomised security sector—a hybrid of units from the uniformed armed forces and armed groups that emerged during and after the 2011 uprising—increasingly reflects the bitter factionalism of its politics. As Salah Marghani, who submitted the draft property bill as justice minister in 2013, observed: “Until the security situation is addressed, I don’t think any law can be implemented.” 43
All of this damages Libya’s chances of obtaining the investment required to bolster economic growth and build proper infrastructure that will help ensure development is sustained. Bank loans are limited, as property cannot be accepted as collateral when clear title is not easily proven.
“Deteriorating security, pervasive corruption, the lack of an independent and transparent regulatory framework and dispute settlement venues, ambiguous interpretation of laws regarding private ownership and property rights, and an opaque and difficult to navigate regulatory system limited potential foreign investment in Libya,” noted the US State Department in June 2014. 44
Prospective investors cannot be sure who owns what. Some infrastructural contracts agreed pre-2011 have been affected by post-revolutionary land claims.
Challenges to Reconciliation: The Political Isolation Law
Libya’s experiment with democracy has been marked not only by militia politics, but also the politics of exclusion. Various factions have pushed for the exclusion of their political opponents while fearing that those opponents will in turn exclude them if given the chance.
The sweeping lustration law passed under pressure from armed groups in 2013, known in Libya as the Political Isolation Law, had far-reaching consequences. Barring Qaddafi-era officials from holding positions in the new Libya, the law resulted in a hollowing out of expertise and a slowing of what was already going to be a challenging transition. It also served to shut down the debate on reconciliation to a great extent and fed fears among the general public of being labelled pro-Qaddafi.
This affected the discourse on property rights as occupants did not feel comfortable enough to air their views, let alone mobilise to defend their position. “No one wants to be accused of being against the revolution,” as one put it. Some of the original proponents of the 2013 lustration law now admit it went too far.
The law was also viewed as a political tactic favouring Islamists within the congress, to the detriment of their rivals. Today, some of Libya’s anti-Islamists have adopted exclusionary tactics of their own. Khalifa Haftar, a renegade general who launched Operation Dignity and was recently appointed army chief to the elected parliament based in Tobruk, has vowed to purge Libya of all Islamists—even those who engage in politics.
to be continued
Above Photo: After the 2011 uprising, former owners laid claim to properties by writing on the walls that they were the rightful owners. (Photo courtesy of Valerie Stocker)
27- Robert F. Worth, “Thousands of Libyans Struggle With Recovery of Property Confiscated by Qaddafi,” The New York Times, 13 May 2012, available online: http://www.nytimes.com/2012/05/14/world/africa/libyans-consider-recovery-of-property-confiscated-by-qaddafi.html?pagewanted=all
28- Ibrahim and Carlisle, “The Case Against Law 4,”127.
29- Cited in UNHCR, Housing, Land and Property Issues, 32.
30- Government of Libya, “Draft Law No.( ) of 2013 Determining Certain Provisions Concerning The Properties Transferred To The State Per Law No. 4 of 1978,” in USAID, Libya—Legislating Property Restitution And The Draft Law Concerning Properties Transferred To The State, Per Law No. 4 Of 1978, July 2013, Annex 1, available online: http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_Legislating_Property_Restitution_Libya.pdf
31- Fitzgerald interview, October 2014
32- USAID, Legislating Property Restitution, 18.
33– Ibid, 20.
34- Fitzgerald interview, November 2014.
35- Fitzgerald interviews, October 2014.
36- Fitzgerald interview, October 2014.
37- Fitzgerald interview, October 2014.
38- MEED, “Libya’s housing and infrastructure programme to cost more than $100bn,” 9 June 2013, available online (subscription needed): http://www.meed.com/sectors/construction/realestate/libyas-housing-and-infrastructure-programme-to-cost-more-than-100bn/3182126.article?referrer=RSS
39- Fitzgerald interview, October 2014.
40- Dar al-Ifta, Fatwa No. 696, 25 November 2012, available online (in Arabic): http://ifta.ly/web/index.php/2012-09-04-09-55-33/739-2012-11-28-09-05-09
41- Authors’ interview with Dr Suliman Ibrahim, January 2015.
42- Ibrahim and Carlisle, “The Case Against Law 4,” 126.
43- Fitzgerald interview, October 2014.
44- US Department of State, 2014 Investment Climate Statement, June 2014, available online: http://www.state.gov/documents/organization/230900.pdf
Mary Fitzgerald is a journalist and analyst specialising in post-Qaddafi Libya. She has reported from Libya since February 2011 for media including the Economist, the BBC, Foreign Policy, The New Yorker, the Financial Times and the Guardian. She lived in Libya throughout 2014. She is a contributing author to The Libyan Revolution and Its Aftermath published by Hurst/Oxford University Press.
Tarek Megerisi is a political analyst and consultant specialising in Libya and the wider Middle East. He has worked closely in an advisory capacity on Libya’s post-revolutionary transition with Libyan political bodies and international organisations. Currently based in London, he has contributed commentaries on Libya to the Carnegie Endowment’s SADA centre, Italy’s Limes magazine, Muftah magazine, and the Fair Observer among others.
Rhodri C. Williams is the Rule of Law Program Manager for the International Legal Assistance Consortium (ILAC). Based in Stockholm, Williams coordinates a large, integrated set of rule of law programs supporting partners in seven countries of the Middle East and North Africa region. Prior to working for ILAC, he worked for ten years as a consultant on humanitarian, human rights, rule of law and transitional justice issues in fragile and post-conflict settings such as Bosnia, Cambodia, Colombia, Cyprus, Georgia, Kosovo, Lebanon, Liberia, Libya, Serbia and Turkey.
Peter van der Auweraert works as Head of the Land, Property and Reparations Division at the International Organization for Migration (IOM) in Geneva, Switzerland. He has worked on rule of law, post-crisis land and victims’ reparations issues in a number of countries and was part of a small UN-team engaged in mediation on land and property issues among local political actors in Kirkuk, Iraq. Prior to joining IOM, Peter Van der Auweraert was Executive Director of Avocats Sans Frontières (ASF).