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 (III)
– Heightened tensions and freezing of the process
In view of the growing tension within the CDA and as the UN-sponsored Skhirat agreement had set the completion of the constitution as an essential step in the transition, the United Nations Support Mission in Libya (UNSMIL), which had so far refrained from directly intervening in the constitution-making process, decided to take a firmer step to prevent its collapse.
Hoping to speed up the process and to help solve the disagreements between the CDA members, and in view of the tense security situation in Libya, in March 2016 UNSMIL Head Martin Kobler convened them to a retreat in Salalah, Oman.
This initiative, which had the aims of moving the process forward and also bringing back the boycotting cultural components, would eventually prove counter-productive and instead of solving the dissensions would create additional rifts.
Indeed, only 33 of the 58 CDA members agreed to take part in the negotiations, the others considering the UN involvement illegitimate and an infringement of Libyan national sovereignty. On the side of the cultural components the invitation was received with suspicion.
As a member of the Amazigh community noted, “the purpose of the meeting was not clear, and we did not receive an official invitation from the UN but instead from the Omani ambassador.”37 The Amazighs opted not to participate, but still communicated their views and demands to the other CDA members.
The Tebus and Tuaregs agreed to negotiate but made it clear that this should not be interpreted as a return to the CDA, which they conditioned on being provided with clear guarantees and that any agreement reached in Oman should be considered binding on the CDA.
After several days of negotiations with a small delegation of CDA members on the constitutional provisions which they disagreed with, an agreement could be reached with the Tuaregs but not with the Tebus.
The latter reaffirmed their boycott of the CDA and their rejection of any of its outcomes not reached with consensus with the cultural components. On their return to Libya and having reached consensus on several contentious issues, the CDA members resumed their meetings to move forward with the adoption of a new draft.
As they still did not achieve the required majority of 2/3+1 to adopt the draft, the CDA members decided to amend the body’s rules of procedure and lower the threshold to 2/3 of the CDA’s effective members (57) rather than of the official members (60).
The draft was eventually adopted on 19 April 2016 but was immediately rejected by the boycotters, who deemed the Salalah meetings and unfolding proceedings to be “illegal” and contradicting the Interim Constitutional Declaration.
They denounced their colleagues’ attempt to impose “a flawed draft” based on a false consensus and decided to bring the case to the courts. The Administrative Chamber of Al-Bayda’s Court of Appeals eventually ruled against the changing of the CDA’s voting quorum and annulled the adoption of the draft.
The CDA members bowed to the court’s decision, but after this first judicial challenge the constitutionmaking process remained frozen for close to a year. Mediation efforts and the difficult birth of the final draft The court’s decision constrained the drafters to reopen and revise the draft constitution, a demand of the boycotters that would eventually pave the way to their return to the negotiation table.
This achievement and the resumption of the constitutional process, however, were also results of intensive mediation efforts conducted during this period to put the constitution-making process back on track.
The Libyan non-political organisation known as the ‘Peacemakers’ was at the centre of these efforts and undertook two parallel initiatives: one aiming to resolve the divisions between the CDA members, and in particular between the supporters and boycotters of the April 2016 draft (or Salalah draft); the other intending to bridge the gap between the CDA and the various components of Libyan society.
Several encounters took place in Tunis between October 2016 and May 2017 to reach these objectives. On the one hand, the Peacemakers mediated between the CDA members, helping to rebuild trust between them and identifying the points of contention in the draft and possible ways to address them.
On the other hand, the meetings brought together CDA members with several social leaders and representatives of cultural minorities, state institutions (HSC, HoR…) and political parties, etc., to discuss their views and concerns about the draft.
Extensive efforts were also conducted on the ground to reach out to local communities during this period.43 Both the CDA members and the mediators were aware of the need to move the process forward and reach its completion, as the CDA was being put under significant pressure.
The drafters’ inability to produce a consensual draft after their years of work was being increasingly criticised in Libyan public opinion and on the political scene, and calls to dissolve the CDA and replace it with a new body could already be heard.
These efforts thus appeared to be the last chance to keep the constitutional track in the hands of the CDA. Therefore, their ultimate goal was either to ensure the production of a truly consensual draft constitution that could be adopted as Libya’s permanent constitution or to reach the most advanced level of consensus on a draft that could later serve as a basis for the future authorities that would be in charge of completing the constitutional path.
The Peacemakers’ efforts eventually enabled the resumption of the CDA’s work, and in particular the setting-up of a Consensus Committee (CC) within the CDA. In March 2017, the drafters elected from among themselves a 12-member committee (6 supporters and 6 opponents of the Salalah draft), whose main task was to address the contentious points in the draft and come up with a unified document to be debated by the CDA plenary.
While the committee failed to solve all the issues – the form of the state and local governance remaining the main bones of contention – it was still able to present a revised draft for discussion in the plenary.
However, members of the CC who had objected to the chosen structure of the state and local governance and others demanded that not only the CC’s draft but also alternative drafts be discussed and voted on by the plenary, thus leading to a further delay in the adoption process.
The CDA, however, made a decision to leave room for anyone who had an alternative proposal to present it for discussion, so that no member would consider that he/she had been marginalised and neither would the final draft be regarded as having been imposed by one side.
Various options were therefore debated in depth, but only the CC’s draft eventually obtained the required majority, and was approved by 43 of the 44 attending members on 29 July 2017.
This last stretch of the constitution-making process, however, took place in a context of heightened political tension, and efforts to hamper the completion of the process came not only from within the CDA but also from outside.
In June 2017, as the CDA had made significant progress and was close to completing its final draft, HoR Speaker Aguila Saleh called for the dissolution of the constituent body and its replacement with an appointed body.
While this call was welcomed and supported by the eastern federalist current, it provoked the ire of the CDA, and in particular its president Noah AlMaghribi, who denounced this attempt to put an end to the work of an elected body as an “infringement against the will of the people who elected the CDA members” and called on security forces and civil society to protect the CDA members.
This was indicative of the political tensions that surrounded the constitutional process, but further emboldened the CDA members in their determination to complete their work and prove wrong those who were expecting them to fail.
The call to protect the CDA was actually not misplaced as on the day of the vote protesters and rioters stormed the CDA building in an obvious attempt to prevent the vote.
The CDA president, however, refused to interrupt or postpone the procedure and the vote was completed with the support not only of more than 2/3 of the CDA members but even a majority from each of the three regions.
The CDA immediately notified the state authorities, calling on them to take the necessary steps to hold the constitutional referendum. Challenges were, however, still lying in the path towards the referendum.
Ten of the CDA’s original members issued a declaration that rejected the draft and several cases were brought to the courts to invalidate the vote.
The Administrative Court of Al-Bayda ruled in August 2017 against the validity of the draft, a ruling that was eventually overturned by the Supreme Court in February 2018 with the argument that administrative courts had no jurisdiction over matters related to the CDA.
However, while this decision should have closed the debate and paved the way for the adoption of the draft constitution in a popular referendum, the process has remained blocked since then.
The court’s decision, indeed, was deemed invalid by several eastern members of the HoR, who also rejected the draft constitution that was submitted to the parliament for approval. They demanded instead that the 1951 Constitution be amended and used as the constitutional basis for the country.
Their staunch opposition was also among the reasons that contributed to the late adoption of the referendum law by the HoR in September 2018, i.e. more than a year after the completion of the draft constitution by the CDA.
Delays in passing this legislation, caused in particular by the repeated lack of a quorum and disagreement among parliamentarians over several articles,49 were denounced by the CDA members and other Libyan actors as intentional “delaying tactics” by some HoR members, including the Speaker, to prevent the adoption of a draft constitution which they disapproved of.
It was even less understandable in their eyes that a mixed committee composed of members from the CDA, the HoR and the Libyan High National Election Commission (HNEC) had already prepared a draft law for discussion in the parliament, which should have fastened the passing of this law.
The law adopted also proved highly controversial as it provided for Libya to be divided into three electoral constituencies for the referendum (Tripolitania, Cyrenaica and Fezzan) with a requirement that the draft constitution had to be approved by a 50%+1 majority of the voters in each region in addition to the 2/3 national majority stipulated in the Interim Constitutional Declaration.
This addition necessitated an amendment to the Constitutional Declaration that was passed by the HoR in November 2018 amidst intense contestation. Not only were doubts raised about the quorum to pass the amendment but the lack of consultation with the HSC on this issue was also considered a violation of the LPA.
The content of the amendment itself was deemed discriminatory and unconstitutional as, with the division of the country in three constituencies, it introduced an electoral system in which votes had unequal weights according to the region, thus contradicting the principle of equality of citizens enshrined in the Constitutional Declaration.
Both the referendum law and the constitutional amendment were therefore rejected not only by the CDA and the HSC but also by some HoR members, further widening the political divide between the two chambers and also within the HoR.
Despite the filing of a lawsuit before the Constitutional Chamber of the Supreme Court in this regard and a revision of the referendum law in January 2019, the controversial issue remained unresolved.
This point of disagreement and other practical challenges (including the HNEC’s lack of funding) eventually hampered the holding of the constitutional referendum, the fate of which now remains in Despite the difficulties and pressure facing the CDA over the three years of the drafting process and until the last moment, and despite the drafters’ initial divisions, which at first seemed unbridgeable, and the blockages that reached their peak in 2016, the drafters eventually made the decision to come back to the negotiation table, compromise and produce a final draft that a broad majority of them supported – to general surprise.
The main questions here are therefore:
Why did the drafters made the choice to compromise?
What is the compromise about? How does it reflect in the final draft?
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