Nedra Cherif
The project aims to establish a platform of dialogue and exchange between Libya’s major political forces, Libyan and international researchers and key actors of the international community on policy issues key to Libya’s future.
PART (I)
Executive Summary
In February 2014, Libya elected a Constitution Drafting Assembly (CDA) to produce a draft constitution that, once approved in a popular referendum, would drive the country away from the transitional phase initiated by the 2011 uprising and establish a permanent legal and constitutional basis for the country’s political life.
However, the outbreak of a civil war a few months later and the continual state of conflict and political division that has prevailed in Libya since then have delayed the completion of the constitution-making process, thus preventing a return to institutional stability in the country.
Proceeding in this complex and unstable environment and further burdened by its own internal flaws and divisions – including its members’ lack of expertise, initial mistrust and diverging ideological views – Libya’s constituent assembly struggled hard to overcome the many challenges facing it but eventually managed to complete its task and approve a final draft in July 2017.
In spite of this, the last step in the constitutional process, namely the submission of the draft to a popular referendum, has been frozen since the adoption of a controversial referendum law by the parliament in late 2018.
With the resumption of peace negotiations under the auspices of the United Nations in autumn 2020 and the Libyan stakeholders’ agreement to hold a general election in December 2021, renewed interest and debate have arisen on Libya’s constitutional future and on whether the existing draft constitution could be used as relevant basis for holding the next election.
Based on first-hand testimonies from Libyan actors involved in the constitutional process and an extensive analysis of media reports and audio-visual material related to the issue, this paper attempts to provide some explanations of Libya’s long delayed constitution-making process.
It explores the various challenges, both internal and external, facing the constituent body and the drafters’ efforts to draw up a consensual document that could reconcile their and the Libyans’ multiple and diverging views on what a future Libyan state should look like. The paper finds that:
• Despite the delay in its completion, persistent disagreement on a number of its provisions, the difficult conditions at the time of its adoption and several complaints raised before the judiciary, the draft constitution still received the support of a strengthened majority of CDA members representing a wide range of regional and ideological backgrounds, and remains the most legitimate constitutional document in Libya at the present time. Moreover, reaching such a consensus in a context of political division and undermined legitimacy of other state institutions undeniably constitutes an achievement that cannot and should not be overlooked in any discussion of the country’s constitutional future.
• While holding a referendum on the CDA’s draft constitution remains the most legal way and the ‘normal path’ to complete the constitution-making process, remaining contentious points in the draft – including issues that have fuelled the current conflict (identity, local governance, management of natural resources, etc.) – and its rejection by some actors need to be addressed sooner or later in order to ensure the effective implementation of the document and its long-term viability.
• Reaching a broader constitutional consensus, however, requires going beyond the mere technical work of the CDA, the members of which reached the limits of their capacities to compromise. Constitutional issues now need to be addressed from a political angle, as constitution-making remains at its core a political process, and the disconnection between the drafting of the constitution and politics has so far had a detrimental effect in Libya.
Introduction
The resumption of Libyan political dialogue under the auspices of the United Nations in autumn 2020 has raised renewed hopes and the prospects for reaching peace and restoring stability in a country that has been torn apart by conflicts and political divisions over the last decade.
The recent agreement to hold a general election, planned for December 2021, has reopened the discussion on the ‘constitutional basis’ needed to hold this election. In this debate, the draft constitution completed by the Constitution Drafting Assembly (CDA) in July 2017, which has been frozen since then, has occupied a central place, sparking heated debates and raising criticism.
While a number of Libyan actors have questioned the relevance of this draft in the current and coming periods, pointing out its assumed lack of popular and political support, and have been considering constitutional alternatives to hold the election, several questions about the CDA’s draft still remain unanswered.
What has prevented the completion of the constitution-making process initiated by the CDA, i.e. the submission of the draft to a popular referendum and its entry into force in the last three years?
Why have there been and are there still attempts to side-line the CDA’s draft?
How was the draft produced and could it have reached a broader consensus?
This paper will attempt to address some of these questions by analysing the main challenges that shaped the drawing up of Libya’s draft constitution, and the drafters’ efforts and limits to produce a document that could reconcile the Libyans’ diversity of views and gather a broad consensus in a country marked by heightened political, social and cultural divisions.
This research is based on a combination of a desk study of the existing literature on Libya’s constitution-making process; monitoring and analysis of Libya’s recent political and constitutional developments through media reports, social media platforms and audiovisual material; and a series of phone interviews conducted with Libyan stakeholders between November 2020 and February 2021.
1. The making of Libya’s constitution: a process shaped by challenges
Since its election in February 2014, the CDA has been faced with both internal and external challenges, which to a large extent have hampered the completion of the Libyan constitution-making process to date, but have also affected its perceived legitimacy in Libyan public opinion and among the political class.
– A non-political body in a context of political division
The legal framework for the CDA election provided that the constituent body would be composed of 60 members, with 20 seats allocated to each of the three historical regions of the country (the western Tripolitania, the eastern Cyrenaica, and the southern Fezzan) – a division inherited from independence and used in the first constituent assembly of 1951.
Although not explicitly stated in the electoral law, it was understood that the CDA members would consist of independent figures rather than political party affiliates, as the former, it was thought, would be more committed to Libya’s superior interests and less keen to engage in partisan politics during the constitution-drafting process.
Despite the positives of leaving aside personalities that had been involved in Libya’s political turmoil since the 2011 uprising, the side-lining of political figures from the CDA combined with the absence of specific criteria for electing the members – notably as regards the future drafters’ expertise or competences – except for their geographical origins, would eventually result in an assembly that lacked both a clear political vision for the country and strong constitutional experience (apart from a few legal scholars elected to the CDA).
Additionally, the choice of a majoritarian electoral system (first-past-the-post in individual constituencies) meant that the drafters were generally elected by “a small number of voters reflecting their tribal or regional affiliations” – a weak point that would be used by the draft’s detractors to question the legitimacy of the CDA.
Moreover, this non-political body would have to operate in a context of growing political tension. Indeed, the CDA election did not occur in a climate of appeasement.
The fragmentation and political instability of the General National Congress (GNC), Libya’s first post-revolution parliament elected in July 2012, caused serious delays in the transitional process, including the elaboration of the legal framework for the CDA election.
Moreover, the adoption of the controversial Political Isolation Law (May 2013), which aimed to prevent former regime affiliates from holding positions of power during the transition, not only affected the composition of both the GNC and the future CDA, but further fuelled tensions and divisions on the Libyan scene.
As Libya was facing growing insecurity, caused in particular by the multiplication of armed militias, and mounting popular discontent about the path of the transition, the GNC’s unilateral extension of its 18-month mandate, which was to expire in January 2014, triggered new divisions.
With the support of eastern-based armed groups, General Khalifa Haftar launched the military ‘Operation Dignity’ (Karama) and pushed for a new legislative election to replace the GNC, which they claimed had lost legitimacy and no longer represented the Libyan people.
The election of the new House of Representatives (HoR) held in June 2014, however, did little to solve the crisis. The election was marred by a low turnout and security issues, and the supporters of the outgoing GNC (mainly Islamists) rejected the result, accusing the new assembly of being dominated by partisans of the former regime, thus leading to an outbreak of violence between the two sides.
Militias from several western cities and Islamist groups allied to launch the ‘Libya Dawn’ (Fajr Libya) military campaign on the capital, aimed at countering Haftar’s operation and restoring the GNC. On their side, some of the newly-elected HoR members decided to establish the seat of the parliament in the eastern city of Tobruk.
Having gained international recognition, the HoR started operating from there with a new government. The country was thus divided into two competing authorities and parliaments, while the situation on the ground had turned into a full-blown conflict.
Therefore, the CDA, which had barely started its work, was immediately faced with a complex and polarised political landscape and an uncertain legal situation. Devising a new constitution for the country in this context and maintaining the cohesion and political neutrality of the constituent body would become increasingly challenging as the country further slipped into civil war.
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