By Mustafa Fetouri
On 16 December, just a few days after Libya’s long-awaited referendum law was passed by the Houses of Representatives, it faced its first legal hurdle.
Veteran lawyer and member of the country’s constitutional assembly Daw Al-Mansouri told MEMO at his Tripoli office that he has filed a lawsuit before the Supreme Court questioning both the constitutionality of “the referendum law” and the legality of the “voting procedures followed to pass it”.
Libya’s new constitution has a rather long and arduous history. It started in February 2014, when Libyans elected a 60-member constitutional assembly to draft a constitution. The draft was then to be put to a referendum and, if approved, would end the long conflict-ridden transitional period.
It took the assembly two years, hundreds of meetings and a couple of courts battles to deliver the final draft. Finally, in April 2016, the constitutional assembly handed over the draft constitution to the House of Representatives which had to pass the required law prior to the referendum.
It took the house more than two years to agree on this. Whenever the delay was questioned, the parliament claimed that a quorum was not available. Legally speaking, the referendum law goes onto the statute book when a two-thirds majority vote for it.
Suddenly, enough members turned up and the referendum law was passed with the required majority on 26 November last year. This development surprised even the gurus among Libyan experts.
No one really knows how it happened and why it could not have happened earlier, which would have saved the country time and conflict.
“It remains a mystery to me how members [of parliament] rushed to vote on the document after they had been failing even to attend parliament sessions for the past two years,” explained Al-Mansouri.
He believes that something is not right, which prompted him to file his lawsuit. Without actually mentioning any particular party he thinks that some kind of behind-the-scenes wrangling took place.
Members of parliament seem to have come under serious pressure either from the UN Envoy to Libya, Ghassan Salame, or from a foreign country with high stakes in stabilising Libya.
I sent several messages to the parliamentary spokesman to get some comments but got no answers.
I then asked Ali Al-Saedi, an MP from southern Libya, why the parliament suddenly voted on the law. “The House of Representatives is in a chaotic situation and many of my colleagues, unfortunately, do not really care to attend any sessions,” he told me.
Why did enough members suddenly turn up and have the law passed? “I was there but I really can’t explain what happened. People just came and voted. It remains unclear to me how this happened.”
Al-Mansouri has a different explanation.
“The vote was illegal because it did not respect the voting procedures requiring members to vote by a show of hands in the absence of an electronic voting system. Instead, the law was passed by [a cheering] crowd without due procedure.”
He accused the House of Representatives of violating the constitutional declaration’s eighth amendment, which requires that laws, referendums included, must be passed by a two-thirds majority of the total number of members of the House of Representatives and not simply of those present at the time of the vote.
“The Supreme Court will declare at least parts of the referendum law to be unconstitutional,” he said confidently.
What then? “The law could still be valid and the referendum, based on it, could go ahead, depending on how the court really explains its ruling.”
Another member of the Constitutional Assembly, Al-Hadi Bouhamra, told me that he prefers to keep the judiciary out of the process so as not to delay the referendum.
“I know [the referendum law] is flawed but it is not a serious issue,” he insisted. Involving the judiciary will only further delay the referendum, he added. “This will prolong the transitional period and delay the elections. This, in turn, will delay stabilising the country.”
Bouhamra believes that what is important now is to adopt the constitution as soon as possible by holding the referendum and then it is up to the people to decide. In the meantime, “the referendum [law] should be proceeded with regardless.”
Even if the law’s constitutionality is confirmed by the Supreme Court, it remains controversial for two reasons:
1- It divides the country into three constituencies, instead of one, based on Libya’s historical regions, namely Cyrenaica in the east, Fezzan in the south and Tripolitania in the west.
2- Secondly, for the constitution to be approved, the referendum law dictates that it must get a 51 per cent majority in each region separately. So if any region rejects it, the constitution will not pass and must be reverted back to the House of Representatives to re-draft the text.
In this case, it would be a panel of experts selected by the House of Representatives, not the elected constitutional assembly, who will amend the draft.
According to Al-Mansouri, the problem with this is that “[the parliament] will have the freedom to draft the constitution the way it likes, and this is neither democratic nor safe.”
Qualifying his concern, Al-Mansouri pointed out that, “Influential figures in eastern Libya are already campaigning for a ‘no’ vote on the constitution.” He would not mention any names, but an MP from eastern Libya, speaking on condition of anonymity, told me that “[Aguila Saleh, the Speaker] is one such figure as he is known to condone and support federalists.”
As such, those federalist can destroy the constitution if they manage to convince enough voters to reject it only in eastern Libya, for example, even if the other two regions vote in favour.
The new federalist movement in Libya was born straight after the civil war of 2011. It is spearheaded by supporters of Libya’s former King Idris and believes that a federalist system is a must for the country as it confers greater autonomy on each of the three regions to manage their affairs with a weaker central government responsible for foreign relations, justice, policing and defence.
Many Libyan experts believe that federalism is a dangerous path. Milad Said, a lecturer at the University of Bani Walid, told me, “Such a nightmarish scenario [federalism] is very dangerous to the future of Libya because it could encourage small minorities like the Toubou and Amazigh to seek autonomy.”
The Toubou and Amazigh communities boycotted the constitutional assembly elections in 2014 which means that they are very likely to boycott the referendum.
Even if the Supreme Court upholds the referendum law it is unlikely to end the controversy and questions surrounding it. Controversies in Libya are known to spill over easily into violence and this is a fearful scenario for everyone.
Mustafa Fetouri is a Libyan academic and freelance journalist. He is a recipient of the EU’s Freedom of the Press prize.