This was the predictable outcome of a deeply flawed process.
Omar Hammady
Elections in Libya, envisioned by the United Nations-facilitated political dialogue and scheduled to take place on Dec. 24, 2021, failed to materialize.
This was the predictable outcome of a process riddled with built-in self-defeating factors and whose implementation favored legal, constitutional, and political acrobatics. The process was beleaguered by two interrelated issues: differences over the idea of holding a presidential election in the current context, and the resulting failure to reach the required consensus on a framework for elections.
The collapse of this process is likely to trigger political disintegration, including the emergence of rival governments and a credible risk of military escalation. As a result, the widely supported elections that were meant to instill the country with unified, legitimate institutions and rid it of the currently competing assemblies will be relegated to the distant horizon.
The current political process stems from attempts to overcome the 2014 post-electoral crisis that resulted in competing claims for legitimacy by two houses: the newly elected House of Representatives, based in the country’s east, which eventually saw its election annulled by the supreme court, and the previous parliament, the General National Congress in the west, which claimed continued legitimacy.
To overcome this conflict, both houses signed a U.N.-brokered compact known as the Libyan Political Agreement in Morocco in December 2015. The agreement maintained both bodies and made them co-legislators on all laws and constitutional arrangements necessary for the transitional process.
The two houses dramatically failed to reach a consensus, though, and the country continued having two competing governments through 2019. U.N. efforts to move the process forward via a national conference were then frustrated by Gen. Khalifa Haftar’s attempts to settle the conflict militarily through his war on Tripoli. Following his defeat, an international and regional consensus allowed for renewed U.N. efforts to reinvigorate the political process. This was reflected in the Berlin Conference of January 2020.
The conference’s conclusions called for the establishment of a presidency council, the formation of a government, and the resumption of a political process “paving the way to end the transitional period through … parliamentary and presidential elections.”
To operationalize the Berlin conclusions, the U.N. mission created a Libyan Political Dialogue Forum (LPDF) made up of 75 members. This forum met in Tunis, Tunisia, in November 2020 and adopted a road map envisioning a new transitional phase of 18 months, to be led by a newly selected presidency council and a government of national unity, and to culminate in the holding of simultaneous presidential and parliamentary elections on Dec. 24, 2021.
The road map provided that the two houses, the House of Representatives and the High Council of State, must agree on a framework for the elections within 60 days, failing which the LPDF would decide on the matter. However, both the two houses and the LPDF failed to adopt a framework. In both forums, differences centered on the presidential election.
Holding a presidential election has been controversial in Libya since 2011, when longtime dictator Muammar al-Qaddafi was overthrown. It was ruled out by representative bodies in 2012 and in 2013 ahead of national elections scheduled for 2014, and again that year. The rationale, mainly put forward by the revolutionaries, known as the February camp, was that electing a president during the interim period would prejudge the nature of the political system to be established by the permanent constitution. In addition, they were concerned that imposing a strong president on a weak state could pave the way for authoritarian rule.
When the various bodies set out to adopt a framework for the Dec. 24 elections, this issue surfaced again. The terms of the debate revolved around two points: whether the country should have a presidential election at all, and, if so, who gets to run for election.
On the first question, House of Representatives Speaker Aguila Saleh, Haftar, and former Interior Minister Fathi Bashagha each believed they had a high chance of winning the presidential poll and insisted that a presidential election was the only way the country could be effectively governed. Supporters of the former regime also promoted the idea of a presidential election, believing their candidate, the former dictator’s son Saif al-Qaddafi, stood a good chance of winning.
The February camp, on the other hand, generally reiterated its opposition to a presidential election ahead of a permanent constitution, using the same rationale laid out in 2012 and in 2013. They also rejected Haftar’s and Qaddafi’s candidacies, seeing both as convicted criminals and fugitives.
On the second question, with Haftar being an active-duty military officer and a U.S. citizen, his supporters insisted that conditions for eligibility should be adjusted accordingly. Libyan ordinary laws would indeed ban him on both grounds. Likewise, supporters of the former regime insisted that enjoyment of political rights and criminal procedures short of final judicial ruling should not be an eligibility condition.
These disagreements prevented the LPDF from agreeing on a framework for elections. The U.N. mediator also abstained from putting forward any bridging proposals. Yet the international community was desperately trying to achieve what seemed to be its only agenda for Libya: simultaneous presidential and parliamentary elections on Dec. 24.
Exploiting this international despair, on Sept. 8, 2021, Saleh unilaterally issued a “presidential electoral law” without holding a vote in the House. The law amended the agreed-upon electoral sequencing by providing for presidential elections to take place ahead of parliamentary elections, included provisions of a constitutional nature such as presidential powers and terms, and loosened eligibility criteria to allow military personnel and dual-citizenship holders to run for election.
***
Omar Hammady, a former political and constitutional affairs advisor to the United Nations Support Mission in Libya.
_______________
