Libyan politicians have moved with salutary speed in 2021 to reunify their divided country. With UN help, the new government should hasten to clear two last hurdles: establishing a legal framework for elections and clarity about who holds supreme command of the armed forces.
Despite the momentous progress, the new authorities face numerous challenges as they try to knit a war-torn country back together and prepare the ground for elections in late 2021.
They need to foster reconciliation between rival factions, seek redress for the crimes committed during years of war and improve living conditions for ordinary Libyans. For these things to happen, the government will need parliament to pass the 2021 budget, which it has failed to do to date.
The new leadership also has to complete the arduous task of uniting still divided military and financial institutions. These things aside, two immediate challenges loom that, if not resolved, could jeopardise any transition toward a more stable future.
One is the absence of an agreement between Libya’s multiple factions on which vote should be held and in what sequence. The other is parliament’s failure to officially recognise the Presidency Council as the armed forces’ supreme commander.
A. Reaching a Consensus on Elections
Libyan factions have yet to settle a number of interlocking problems with the electoral roadmap. In November 2020, Libyan representatives agreed to hold elections at the end of 2021, as enshrined in the UN-backed roadmap, which states in generic terms that parliamentary and presidential elections will take place at the end of the year.
But the roadmap does not specify whether these should take place after the approval of a draft constitution (completed in 2017 but never put to a vote) or regardless of it.
Delegates who took part in the UN-backed talks say they did not discuss the roadmap’s electoral provisions at any length. They cite an implicit understanding that details, including whether presidential elections would be “direct” (with the president elected by voters) or “indirect” (with parliament choosing he chief executive), would be finalised later.
As a result, although a date for elections was set, there is still no consensus on whether to hold a referendum on the draft constitution first or whether to move ahead with elections, and, if so, whether a presidential election should accompany the parliamentary vote.
Adding a layer of complexity are key questions behind these unresolved issues. One is what law should govern a referendum if that vote comes first.
The disagreement boils down to whether legislators should uphold or modify an October 2018 law passed by the Tobruk-based House of Representatives.
Previous legislation required two thirds of the national electorate to approve the proposed constitution for it to come into force. The 2018 law adds another requirement: that a majority of voters in each of Libya’s three historical provinces (Tripolitania, Cyrenaica and Fezzan, which correspond to western, eastern and southern Libya, respectively) vote for the draft charter.
Pro-Haftar parliamentary factions introduced the additional stage of region-based approval with the unstated aim of sabotaging the new constitution. Anti-Haftar factions in the west, including some parliamentarians who had boycotted the Tobruk-based house at the time, criticised the reform. Still, it remains legally valid.
Opponents of the 2018 law argue that it cannot work because Libya has thirteen electoral districts, whose boundaries do not correspond to those of its three historical provinces (indeed, those provinces’ borders are not recognised).
They see drawing new electoral lines between the three provinces as the first step toward partitioning the country. There is a practical consideration as well.
According to the head of Libya’s High National Electoral Commission, drawing new electoral boundaries would take many months, and even if the referendum passes – which is far from guaranteed – almost another year would be needed before parliamentary and presidential elections could be held, and more if voters were to reject the draft constitution in the referendum.
The debate over whether elections should be solely for a new parliament or also for the head of state is even more polarising. Political factions generally agree on the former but are divided on the latter.
The constitution drafting assembly, elected in 2014, reached agreement to enshrine a presidential vote through universal suffrage in the draft constitution and thus empower a directly elected president. But there is no broader consensus on the matter among Libyan political factions today.
Many Libyans, in particular those with ties to the Qadhafi regime and those aligned with the Haftar camp, favour a direct presidential election, contending that people have a legitimate aspiration to choose the head of state.
Yet they generally dislike the draft constitution as a whole, even if they like that provision. Anti-Qadhafi Libyans, including Islamists, oppose direct presidential elections, claiming that a presidential system with popular backing is more likely to lead to abuse of power and a return to authoritarian rule.
Their fear is grounded in recognition that, if given the right to vote for president, most Libyans might vote for a well-known figure tied to the old regime. They propose that an elected parliament choose the next president, even though this procedure would theoretically make it easier for a candidate to buy the way to power.
Some in this camp nonetheless support holding a referendum on the draft constitution, whether for tactical reasons (in order to postpone elections as much as possible) or because they think the Libyan people should weigh in on the direct presidential elections question. These and other related issues were supposed to have been resolved by now.
These and other related issues were supposed to have been resolved by now.