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.
PART (V)
In November 2020, the UN-backed Libyan Political Dialogue Forum charged a joint committee composed of members of Libya’s rival assemblies – the House of Representatives and the High State Council – with charting a consensus proposal on elections’ purpose and a set of draft rules.
This group, which started working in late December, failed to come up with a concrete plan by the late February deadline. It did propose that a constitutional referendum should be held first.
But it left the door open to other options because the proposal conveniently added that if the referendum proved impossible to carry out for practical reasons – by which they appear to have partly had in mind the potential delays in the electoral roadmap that holding a referendum would entail – then parliamentary and presidential elections should come first.
In short, this committee kicked the can down the road on taking a final decision. The High State Council approved this proposal, but the House of Representatives has yet to discuss it – for no clearly stated reason.
The UN-backed roadmap set out a back-up procedure for resolving the dispute if this first group of House of Representatives and High State Council negotiators failed to produce consensus by the February deadline.
A legal committee, which includes members of the rival assemblies and other representatives of Libya’s political and regional constituencies (all selected this time from among the Libyan Political Dialogue Forum’s members) would meet to agree on an electoral roadmap – whether a referendum on the draft constitution comes first, and if so under what rules, or whether elections come first, and if so whether for both parliament and president or just the former. They would then draft a bill for parliament to consider.
Yet this second group’s work has proceeded slowly. For weeks after the February deadline, it did not meet. Some of its members complained that the new UN special envoy, Ján Kubiš, who assumed his duties in February, did not call a meeting of the legal committee to start its work on the electoral roadmap.
According to his staff, the delay was due to the envoy’s focus on the new government’s parliamentary endorsement and the transfer of power by the previous government, both of which took place in March, and on giving the opportunity to the new executive and the recently unified parliament to get to work.
The UN eventually convened the legal committee on 7 April, and it started consultations to reach a consensus and draft legislation. They drafted a proposal but failed to reach agreement on whether the election of the president should be direct or indirect and also disagreed on the eligibility criteria for the president and lawmakers.
The legal committee’s proposal appears to suggest that delegates agreed to hold parliamentary elections first and postpone the referendum until after the new parliament is elected, but a member of the dialogue forum said the matter is far from settled.
To overcome these obstacles, the legal committee asked that all 74 members of the Libyan Political Dialogue Forum convene to weigh in. They are scheduled to meet virtually on 26 May.
These delays rub against the UN roadmap’s milestones but may chime with Dabaiba’s apparent eagerness to remain premier well beyond the nine months envisaged by the document. Dabaiba has publicly committed to the roadmap.
Several Western diplomats and some of his Libyan acquaintances suggest, however, that he indicated in private soon after his election that he envisages staying in power for at least two years, arguing that nine months are insufficient to guarantee the country’s solid reunification, relaunch the economy and improve living conditions.
He reportedly also argues that holding elections as early as the end of 2021 would imperil the country’s stability when it has just emerged from war.
For now, international pressure, including from the U.S., has kept him in check; U.S. officials insist that the prime minister’s mandate is to deliver elections, not to engage in state-building.
The prime minister is not alone in wanting to extend the transition. A Tripoli-based politician confided that a local armed group close to the new government has begun to put pressure on individuals such as himself to stop calling for elections.
Behind closed doors, even most House of Representatives members state that it would be better to delay the elections. It is unclear whether this sentiment comes from their general anxiety that the poll will deepen divisions or their personal fear of losing their well-remunerated positions.
Several well-informed Libyans with ties to parliamentarians believe the latter. As a politician put it aptly: “Asking House of Representatives members to approve an electoral law is like asking them to commit political suicide”.
While the risk of elections stoking division, especially if parties disagree on the vote’s parameters, is real, continued delays are equally perilous.
Significant constituencies, including political stakeholders without a role in government, demand elections and threaten to mobilise their supporters and allied military factions if the vote is delayed.
The constitutional and electoral questions at stake understandably provoke fierce debate, given their implications for the future Libyan state. Still, reaching as much consensus as possible and as fast as possible on a path forward is essential.
B. Ratifying the UN-backed Roadmap
The second challenge facing Dabaiba is the legal grey zone surrounding the function of the armed forces’ supreme commander in the UN-backed roadmap “for the Preparatory Phase of a Comprehensive Solution”, which the dialogue forum approved in November 2020 but the House of Representatives has yet to ratify.
An annex to the roadmap document spells out the respective prerogatives of the prime minister and Presidency Council. The prime minister is responsible for all the government’s work, and that of its ministries, as well as preparing the budget and drafting laws to be submitted to the parliament for approval.
For its part, the Presidency Council, among other things, exercises supreme command and control over the armed forces and can make senior military appointments, always acting by consensus.
The lack of formal approval of the roadmap, or an alternate document acknowledging that the Presidency Council is invested with the title of supreme commander (al-qa’id al-ala, equivalent to commander-in-chief in some Western countries) presents risks.
Parliament Speaker Saleh might seek to retain this title, which he adopted in 2014 on the basis of a law that conferred such authority on the head of parliament. In this capacity, he appointed Haftar as armed forces general commander (al-qa’id al-‘amm, the highest-ranking military officer) in 2015.
Saleh retained the designation in subsequent years, even after the 2015 UN-backed Libyan Political Agreement transferred these powers to Serraj’s Presidency Council. Conversely, since 2015, the Tripoli-based government and military groups have recognised the Presidency Council as supreme commander.
The contradictory legal basis thus gave rise to two parallel military coalitions and chains of command after the political split. These exist to this day.
The House of Representatives has given its vote of confidence only to the new executive, without formally approving the roadmap. Saleh has not commented on what role the Presidency Council should play in managing state affairs.
Despite this uncertainty, the Council members held their own separate swearing-in ceremony before the head of Libya’s Supreme Court in Tripoli on 15 March, the same day cabinet members took their oath in Tobruk.
The Council members and Supreme Court president then attended the government’s ceremony in Tobruk, where Mohamed Mnefi, head of the Presidency Council, gave a speech.
Some Libyan jurists and politicians argue that the legislature does not need to approve the UN-backed roadmap, presenting two arguments. First, they say, the roadmap and its appended documents do not explicitly state that the House of Representatives must ratify the document.
They argue that, based on two articles in the chapter on executive authority annexed to the document, parliament’s vote of confidence in the government entails its approval of the roadmap.
Secondly, they say, the Presidency Council members’ oath in front of the Supreme Court president, followed by their presence at the swearing-in ceremony in Tobruk, “means that everyone is satisfied and agrees with this new authority and its agreed tasks”. Some members of parliament and its legal committee share this view.
But the matter is far from settled. Other jurists argue that, notwithstanding the oath, the assembly still needs to ratify the document or its content in the form of an amendment to the 2011 constitutional declaration, the post-Qadhafi charter that establishes the country’s governance structure in lieu of a constitution. Likewise, several dialogue forum members argue that the House of Representatives also has to endorse the roadmap.
Despite the legal ambiguity that overshadows the issue, the House of Representatives issued a short statement in mid-April (in relation to the outbreak of hostilities in neighbouring Chad) in which it refers to the Presidency Council “in its capacity as supreme commander”, the first and so far only acknowledgement of that institution having this authority.
From its side, the Presidency Council has issued a few statements in this capacity, mainly on mundane matters such as admonishing military officers not to give press interviews. None of these triggered a negative response from parliament, whose members have yet to openly challenge any Council decision.
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