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 (II)
– Ensuring inclusive representation in a divided country
Ensuring that Libya’s social and cultural diversity would be represented in the country’s next constitution was another challenge facing the constituent body.
The electoral law for the CDA dedicated six seats to women and two seats to each of the Amazigh, Tuareg and Tebu communities as a way to offer some representation of Libya’s ‘cultural components.’
The latter, however, contested this provision, and particularly the Amazighs, who felt underrepresented compared to the other groups, especially regarding their actual proportion of the population.
Additionally, they demanded that the Interim Constitutional Declaration be amended so that decisions on a number of specific issues, including ones related to their “natural rights” (linguistic and cultural rights) and the symbols of the Libyan state (the name and the identity of the state, the flag, the national anthem) in the CDA would be taken by consensus rather than the initially envisioned 2/3+1 majority – a demand also supported by the Tuaregs and the Tebus.
Considering the limited representation granted to the cultural groups in the CDA, they hoped to secure a say in the decision-making process, since they were not in a position “even combining together the cultural components’ votes to impose anything on the Arab majority in the CDA.”
The GNC’s failure to address this demand led to the minorities boycotting the CDA election and suspending their participation in the GNC. The Tuaregs eventually moved back and announced they would join the poll, whereas both the Supreme Amazigh Council and the Tebu National Assembly confirmed their boycotts.
On the announcement of the final election results on 2 March 2014, 13 of the 60 CDA seats therefore remained unfilled, including 5 of the 6 seats reserved for the Amazigh, Tuareg and Tebu communities.
Uncomfortable with the absence of minority representation in the CDA, the GNC eventually passed an amendment to the Interim Constitutional Declaration, which revised the CDA’s decision-making procedures by adding that “it is necessary to come to an agreement with the distinct linguistic and cultural components of Libyan society on provisions that concern them.”
Deeming the change acceptable, Tebus and Tuaregs ran in a complementary election held on 26 April to fill their vacant seats in the CDA. On their side, the Amazighs pursued their boycott, as they considered the amendment insufficient, having demanded that the provisions related to the cultural components be explicitly named in the text.
Reaching consensus with the cultural components during the constitutional debates proved complex. When the Tebu and Tuareg representatives joined the CDA in May 2014, the other members had already moved forward on drawing up the body’s rules of procedures.
A section of article 60 of the rules stipulated that the voting procedures should “respect consensus with the representatives of Libya’s cultural and linguistic components on issues related to them” and that a (special) committee should be set up to “define the concept of consensus and mechanisms to reach it.”
However, the time dedicated to this task and controversy around the mechanisms set, which had little effect in practice, came to be perceived by the cultural components as a reflection of “the Arabs’ lack of willingness to take our participation into serious consideration.”
Another challenge was to cope with the CDA’s regional composition. Because of the way it had been elected, the CDA’s initial excessive focus on working along regional lines threatened to further enshrine divisions rather than bring the drafters’ views closer.
As an eastern CDA member noted, as the members got used to working together, “we were eventually brought closer by our ideas than our regional belonging,” rendering some of the CDA’s working methods irrelevant.
For instance, the initial idea of establishing regional working groups based on the three electoral regions, which would be required to provide each region’s view on the various articles of the draft – a way to simplify debates in the plenary by limiting discussions to three regional views rather than each member’s individual position – triggered tensions.
Several members argued that the CDA had been elected “to prepare a draft constitution for all Libyans without distinction between their places of residence or opinions,” and deemed unacceptable any operational mechanisms that would differentiate between Libyans on a regional basis.
The CDA presidency was eventually constrained to move backward and annul this decision. This is not to say that the regional dimension was totally absent from the CDA’s debates.
As the process moved forward, a number of issues with regional and local implications caused heated debates among the drafters, further fuelled by the political divisions on the Libyan scene and the competing authorities’ pressure on the CDA.
In particular, the form of the state and local governance system remained a blocking point until late in the process, particularly because of the maximalist demands of some hardline eastern federalist members.
In June 2015, the setting up of a Working Committee (WC) with the aim of reconciling the diverging views and speeding up the completion of a first full draft, caused further divisions, both with the cultural components and along regional lines.
Elected from among the CDA members on the basis of 4 members per electoral region, the WC was initially to include one additional member representing the cultural components. The minorities’ representatives however requested a representative each (one Tebu and one Tuareg).
The rejection of this demand by the other members was received by the cultural components as an additional proof of their exclusion from the constitution-making process and of “the majority’s efforts to impose its will.”20 On 28 June 2015, they announced their decision to boycott the CDA, leaving the constituent body without representation of the cultural communities, thus further undermining the body’s inclusiveness.
Despite the CDA’s efforts to reach out to them, these groups took a tougher stance, warning the body against adopting “a non-comprehensive, non-concord constitution”21 and joining forces in a front composed of Tuaregs, Tebus and Amazighs to put pressure on the CDA and defend their common interests.
In a joint statement issued on 30 January 2016, they clearly stated their rejection of any constitution that would not include a consensus with the cultural minorities. A dedicated committee set up by the CDA pursued its efforts to negotiate with the boycotters, and eventually made some progress with the Tuaregs, while the Tebus refused to join and continued their street mobilisations, notably in the main cities of the south (Murzuq, Sabha, Ubari and Kufra).
The working methods of the WC were also subject to criticism from other CDA members, who denounced the “secrecy” of its deliberations and attempts by some of its members to impose their will rather than seek consensus.
They also criticized the WC’s decision to start drafting new constitutional provisions instead of relying on the chapters prepared by the CDA’s technical committees and released in December 2014. Moreover, the committee faced divisions over a number of sensitive issues, in particular the question of the form of the state.
On 28 January 2016, another 11 members mainly from the west announced a boycott of the CDA, denouncing the “federalist inclinations” of the WC and accusing it of dividing Libya with “regional quotas.”26 Despite these contestations and the further shrinking of the CDA’s membership, the body’s President, Ali Al-Tarhuni, pushed to adopt the controversial draft that came out of the WC’s deliberations, as the CDA was under much time pressure to complete its work.
Issued on 3 February 2016, the draft was rejected by the boycotting members, who conditioned their return to the CDA on it being discarded. Moreover, as Al-Tarhuni’s management of the CDA had already caused resentment among a number of CDA members, a legal complaint filed by the boycotters resulted in his dismissal.
Regardless of this decision and of their own internal divides and because of the growing political and public pressure on them, the remaining CDA members committed to complete their work and produce a final draft constitution.
– Separating constitution-making from politics: rationale and consequences
Despite its attempts to isolate itself from external tensions, the CDA was not immune from the country’s divisions. The drafters’ initial and intentional decision to keep some distance and abstain from any involvement in the political process, however, had both positive and negative effects.
Eager to maintain the CDA’s independence from the military and political factions, and also from the other (divided) state institutions, which were exerting pressure to control the constitutional process, the drafters’ isolation in the eastern city of Al-Bayda initially succeeded in keeping the constituent body together and in it retaining a significant amount of legitimacy, something that other institutions were crucially lacking during this period.
However, as the process moved forward, sustaining this neutrality would be increasingly difficult in addition to becoming politically irrelevant. While the CDA initially attempted to focus exclusively on its drafting task, it was somewhat unrealistic to believe that it could address all constitutional issues while remaining disconnected from the main political factions.
Far from being merely technical, some issues were indeed highly political and actually at the heart of the ongoing conflict, including debates on the country’s national unity, identity and local governance and on the fair distribution of natural resources.
The CDA’s efforts to shield itself from the political competition, however, meant that the various political views could hardly be taken into consideration in their discussions, which in turn would prevent any strong political support for the draft constitution in the future.
The CDA’s popular mandate also progressively started to erode as the body’s interaction with Libyan citizens and civil society became scarcer. The remoteness of Al-Bayda and the tense security situation on the ground limited the accessibility of the CDA and rendered outreach events difficult to organise.
Limited communication with the drafters further contributed to undermining positive perceptions of the CDA in the eyes of Libyans, as they felt that their concerns and demands were not seriously taken into consideration in the constitution-making process.
It also resulted in limited popular knowledge of the constitutional issues and achievements, which is still visible today in the persistent misconceptions that many Libyan citizens have on the CDA’s final draft.
Therefore, the CDA’s isolation affected not only the extent to which the final draft could design an effective and politically sustainable functioning of Libya’s future institutions, but also how much it could reflect the people’s aspirations for their country.
Eventually, it also further limited the place and relevance of the constitutional track in the broader political and peace negotiations. As violence continued in the country, solving Libya’s political crisis and institutional division became the focus of international mediation efforts.
A political dialogue launched under the aegis of the United Nations (UN) at the end of 2014 with the goal of reaching a comprehensive peace agreement, including the reunification of the country’s divided institutions, took place in parallel rather than in coordination with the constitutional process.
The CDA members’ decision to distance themselves from the political negotiations and their exclusion from them, however, became problematic as it resulted in the side-lining of the CDA, although the terms of the political dialogue were constitutional ones par excellence.
Moreover, it meant that the CDA would have to operate and complete its work within any new framework that emanated from the dialogue without having a chance to contribute to its design or share its opinion on it. Only later did some of the CDA members realise the irrelevance of their choice and attempt to reconnect with the dialogue, but to no avail.
The Libya Political Agreement (LPA) that was reached in Skhirat, Morocco in December 2015 would indeed constitute the new roadmap for the remainder of the transition, and part of its legal framework. Interestingly, while it had been drawn up in complete disconnection from the constitutional process, the LPA granted significant attention to the completion of the constitution.
The document notably encouraged all parties to support the CDA’s independence and enjoined the new unity government (GNA) to provide the constituent body with sufficient financial and logistical resources and to ensure its security.
However, it also set new regulations on the process, including the need to find a “suitable way for all the cultural components to participate in the work of the Assembly” and the new deadline of 24 March 2016 for the CDA to complete its work.
Should the CDA fail to conclude its task by this deadline, it would be replaced by a new committee composed of HoR and HSC members working jointly with the Presidency Council to reach a final decision on constitutional matters.
Thus, the UN was putting increased pressure on the CDA to finalise its work, pressure it would continue to sustain over the following months.
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