Steering Libya Past Another Perilous Crossroads (1)

What’s new? Elections – a critical step in Libya’s transition away from years of autocratic rule under Muammar al-Qadhafi and subsequent political division – were scheduled for December 2021. But authorities postponed the polls indefinitely amid unremitting disputes. Now a new feud between rival governments, each claiming to be legitimate, is escalating.

Why does it matter? Without consensus on a way forward, Libya’s long-awaited transition could come to a premature halt, with the country once again divided between two rival governments. While a return to conflict does not seem imminent, renewed violence is possible if the rift between political camps keeps growing.

What should be done? Libyan politicians should pause one camp’s initiative to instal a new government and seek a consensual way forward. With encouragement from outside powers, they should return to the negotiating table and either agree on a new cabinet or, with the UN’s assistance, chart a new electoral roadmap.

More than a decade after Muammar al-Qadhafi fell, Libya has entered yet another uncertain phase with political factions at odds on the way forward. On 24 December 2021, the country was to hold milestone presidential and parliamentary elections – a key step on the way to a more stable democracy. But the national elections commission, citing political and legal obstacles, delayed the votes indefinitely.

Libya’s main political camps have put in motion conflicting strategies for getting out of the impasse. One wants to instal a new government led by former Interior Minister Fathi Bashagha, who won a controversial parliamentary confidence vote on 1 March, and then to turn to constitution drafting while putting off elections. The other rejects the Bashagha government and wants current interim Prime Minister Abdulhamid Dabaiba to remain in place while parliamentary elections proceed – all before turning to constitutional reform and presidential selection. With support from outside powers, the rivals should either come to a consensual deal on a cabinet that both support, or negotiate a new electoral roadmap.

Libya’s new political fracture risks breaking apart the unified interim government that formed in the months after a ceasefire declared in October 2020. That government brought together Libya’s rival power centres, one based in Tripoli and the other in Tobruk, which formed after contested parliamentary elections cleaved the country in two in 2014. Before the 24 December balloting was delayed, there was broad consensus on the way forward. The parties had agreed on holding presidential and parliamentary elections simultaneously on the basis of existing electoral laws and without an approved constitution. But the delay prompted some of them to reconsider.

The political landscape is now dominated by two camps. One group supports the new Bashagha-led government and a roadmap adopted by the House of Representatives, the parliament elected in 2014 and based in the country’s east, that prioritises constitution drafting. The other advocates sticking with the Dabaiba government, pushing ahead with parliamentary elections and keeping both the constitutional track and presidential polls on hold. Outside actors have struggled to orient themselves to the emerging dynamics.

The UN special adviser favoured holding elections but did not in principle oppose installation of the new government. But after legal disputes clouded the House’s 1 March confidence vote in Bashagha, UN Secretary-General António Guterres expressed his reservations about the appointment. While it is not the UN’s role to officially recognise a new government, its criticism of the confidence vote had a domino effect on UN member states’ approach to the matter. To this point, with the exception of Russia, no other foreign state has welcomed the new government.

For both Libyan insiders and outside powers, the choice is whether to support an elite pact to guide the transition at least a bit further or to turn immediately to popular participation through elections. There are strong forces pulling in both directions.

The House of Representatives threw down a gauntlet of sorts when it decided to ignore the controversies surrounding the 1 March confidence vote and swore in Bashagha’s 39-person government, tasking him to take Dabaiba’s place as interim premier. For his part, Dabaiba, backed by the Tripoli-based consultative body, the High State Council, rejected this move. Bashagha and his ministers have thus far remained in the east of the country, but they vow to take office in the capital Tripoli soon.

That said, there are risks. While Bashagha has vowed not to use force to assert himself as premier, growing political confrontation could prompt armed groups allied with him to mobilise to dislodge the Dabaiba government and instal the new one. Moreover, even if it does not trigger open conflict, an unresolved political schism in Libya could plant the seeds of deep crisis. The economy would suffer, as would people’s livelihoods. Attempts to unify the military could founder, with political rivals leaning on armed loyalists as their private militias. The unstable equilibrium between foreign states with a military presence in Libya could dissolve.

Rather than stick to maximalist positions and hope that the other side yields, Libya’s political factions need to come back to the table and forge a consensus path forward. The House of Representatives should take note of the reservations that foreign capitals have voiced regarding the appointment of the new government and refrain from pushing the new cabinet from taking further action aimed at ensconcing itself in Tripoli. Instead, it should accept a return to UN-backed negotiations, which the parliament has rejected thus far, to arrive at a new roadmap that has broad political support.

That said, there is no right or wrong way out of this standoff. The priority right now is for Libya’s rival factions to come to a consensual way forward. Moreover, whichever of these two options Libyans choose, it is essential that foreign capitals remain united in supporting their decision. The parties should not allow the botched 24 December polls to become the pretext for emplacing a new government that, promising to finish healing old scars, ends up opening new wounds.

The elections imbroglio has its origins in the deal that ended the deadly eighteen-month war between forces backing two parallel governments that each ruled part of the country from 2014 to 2020. The two governments, one in the east of the country and backed by the Tobruk-based parliament (but with no international recognition) and the other in Tripoli (with international recognition), had been intermittently at war since 2014. But the conflict escalated in April 2019 when forces led by Field Marshal Haftar launched an offensive to capture Tripoli.

On 23 October 2020, representatives of the rival coalitions signed a ceasefire agreement and kickstarted political talks that were to have culminated in Libya’s first-ever presidential election. In November 2020, the country’s political factions agreed on presidential and parliamentary elections, the centrepiece of a UN-sponsored roadmap.  UN-mediated talks in February 2021 led to the appointment of an interim unity government, headed by Prime Minister Dabaiba. It had a mandate to unify Libya’s divided institutions, including the parallel governments, and prepare the country for simultaneous presidential and parliamentary polls set to take place on 24 December 2021.

The second reason was that those delegates also believed that the country needed legitimate institutions backed by a popular mandate instead of the interim arrangements based on the divisions that prevailed prior to the ceasefire.  UN officials were of the same opinion.

From the outset, however, the plan to hold the vote was a dangerous gamble. Libya has had a troubled relationship with elections since 2011: a dispute over the 2014 legislative ballot was what split the country in two rival administrations. Seven years later, conditions were still not conducive to holding elections, with a deeply polarised electorate and entrenched rivalries among political factions, each with its own allied military forces. The judiciary, which was supposed to vet candidates and adjudicate any contestation of results, is hardly impartial.

Other problems surfaced. Libya’s factions failed to reach consensus on the electoral framework or the eligibility criteria for presidential candidates. In setting 24 December 2021 as the date for simultaneous parliamentary and presidential polls, the UN-backed roadmap required rival politicians to hammer out election rules.

Yet in negotiations between May and July 2021, the Libyan Political Dialogue Forum, a group of 74 negotiators representing the country’s parallel assemblies and various constituencies, was divided between one group that wanted presidential and parliamentary elections to take place at the same time and another group that wanted only legislative contests.

The latter alleged that a presidential election would be too divisive and risked handing Libya back to a dictator. They argued that a president with a popular mandate but (in the absence of a constitution or law regulating the powers of the president) subject to no clear checks and balances could open the door to authoritarian rule.

Breaking the impasse, the House of Representatives passed legislation in September that regulated presidential elections and, the next month, a measure governing parliamentary elections as well. The UN and foreign capitals gave this initiative their blessing, likely because the prospect of consensus was dim and they were anxious to make sure that the elections took place on time.  But the Tripoli-based assembly, the High State Council, opposed it, as did other Tripoli-based politicians who accused the parliament of adopting election laws unilaterally without consulting them.

Even though they paved the way for elections, the two electoral laws complicated the situation, partly because the House approved them without a plenary vote and without a qualified majority – a procedural flaw.  There were substantive problems as well. For example, the legislation provided for the parliamentary ballot to take place months after the presidential vote, rather than simultaneously, as the UN roadmap had prescribed.

Some Tripoli-based factions opposed to a presidential election rejected this sequencing because they feared an elected president might call off the parliamentary elections or suspend the legislative authority altogether, thus enabling a return to authoritarian rule. Such fears were compounded by the fact that the legislation vested considerable powers in the new president, including the powers to appoint the prime minister, assume the role of armed forces commander-in-chief and declare a state of emergency – all without checks and balances.

Finally, the eligibility criteria for presidential candidates were worded vaguely (and subsequently modified through ad hoc decrees), which opened the door to conflicting interpretations as to who would be allowed to run.

Neither the House nor the elections commission considered these problems grave enough to halt the election preparations. Both bodies brushed aside objections to the electoral laws and rebuffed Libyan requests to postpone the balloting so as to have time to adjust the legal framework governing who would be allowed to run.  

Most parliamentarians and the head of the elections commission sharply disagreed with the notion of delay. Some election officials and House members went so far as to warn that war could break out if the elections did not take place as scheduled, adding to the sense of urgency.  In mid-November, the elections commission called on candidates to submit applications for the presidential and parliamentary races.

In early December, however, things started to unravel. Some 98 candidates had submitted papers to run for president, and disputes emerged over three controversial personalities. One was Field Marshal Haftar, who drew strong opposition from those in western Libya who had helped fight off his 2019 siege of Tripoli. The second contentious candidate was Saif  al-Qadhafi, the second son of the late dictator. He had some popular support, but both Haftar and Tripoli-based factions wanted him out of the race.

Finally, interim Prime Minister Dabaiba aroused the ire of almost all the other candidates, who felt he had an unfair advantage as sitting prime minister. They also said his candidacy violated his previous pledge not to run, which he had made during negotiations before his prime ministerial appointment.

Clashing interpretations of the presidential electoral law led various factions to believe that their foes would be disqualified. Haftar’s critics thought he would be barred because of his alleged dual nationality. The first version of the law says candidates must have only Libyan citizenship; Haftar is alleged to have U.S. citizenship but no documentary evidence has so far emerged. 

Qadhafi’s opponents were sure he would be thrown out of the race because a court had sentenced him to death in absentia. The law states that no candidate can have received “a final sentence” from a court.  Dabaiba’s adversaries believed he would be excluded for two reasons: an article in the law required candidates to suspend professional activities three months before election day, which Dabaiba did not do; and they claimed he had forged the university degree certificate he submitted to the elections commission.

Yet, after two rounds of court appeals, judges had not disqualified anyone, leaving all 98 candidates able to stand in the election.  Imad al-Sayeh, the High National Elections Commission chairman, refused to accept this outcome; according to a Western diplomat, he was particularly troubled by the fact that judges had cleared Qadhafi. 

Other diplomats suggest that some presidential candidates indicated in private they wanted to stop the electoral preparations once they realised that they could lose. These included Haftar, House of Representatives Chairman Aghila Saleh and Bashagha, all of whom had vocally supported the process until then, believing victory within reach. They may have put pressure on the elections commission to delay the vote.

These developments brought the preparations to a grinding halt. Just two weeks before the slated vote, the elections commission’s head declared “force majeure”, suggesting that circumstances beyond his control had prevented him from performing his duties, and refused to validate the final presidential candidate list.  Without that list – which officials needed to print ballots – it became evident that elections could not be held on schedule. Yet it was not until 22 December that the commission announced its decision.  At first, it proposed delaying the vote by a month, until 24 January 2022, but soon the postponement became open-ended.

Libyan politicians have deflected responsibility for the fracas. Elections Commission Chairman al-Sayeh criticised the judiciary for allowing presidential candidates to run who did not meet the eligibility criteria.  The judiciary rejected the accusation, arguing that it had applied the law to the letter, and that the problem was with the election law’s vague and self-contradictory wording. House lawmakers, in turn, insisted that both measures were sound.

In public, they blamed the failed ballot on the elections commission, saying it had refused to lift the “force majeure” suspension. In private, however, several parliamentarians pointed the finger at either Dabaiba or Saif al-Islam al-Qadhafi (depending on the political faction to which they belonged) for throwing a hat in the ring. Some politicians accused the U.S. of vetoing al-Qadhafi’s participation and pressing the elections commission to halt the vote, an allegation that U.S. officials dismissed as a “conspiracy theory”.

In hindsight, the vote’s cancellation was not entirely bad news. Had it gone ahead, it would most likely have led to more legal disputes, boycotts and contested results. If any of the three controversial presidential candidates had passed out of the first round, opponents likely would have declared the ballot illegal, triggering lengthy court battles. The same could have happened if any of them had failed to progress to a run-off.

Still, the country has entered a new period of political uncertainty. A small number of politicians and activists are still calling for simultaneous presidential and parliamentary elections, but they are outnumbered by the voices of two opposing camps, each of which is pushing its own political proposal and its own government.

The first group wants to see a new government in place and elections postponed indefinitely. Members of the House of Representatives and others opposed to Prime Minister Dabaiba staying in power support this option. Backing them are Haftar, Saleh and Bashagha; the last has gone from being the former two’s enemy to becoming their candidate for prime minister (though his own ambition was to become president).

On 10 February, the House of Representatives appointed Bashagha as prime minister-designate and tasked him with forming a government.  On 1 March, the House voted to endorse the 39-person cabinet headed by Bashagha, giving him the green light to take over from the sitting prime minister, Dabaiba. But the vote of confidence was controversial because the number of legislators in attendance was below the total number of votes of endorsement the House speaker said had been cast, and it remained unclear how many members of the parliament had actually voted in favour of the new government.  The existing government in Tripoli did not recognise the confidence vote. The UN expressed reservations about it and, with the exception of Russia, foreign capitals appear so far to be refraining from recognising it.

Bashagha manoeuvred his way into his premiership in part by reaching out to former enemies. He had been making overtures to Haftar for months, wanting to secure a deal prior to the scheduled elections. According to a senior Libyan politician close to both parties, they agreed that should Haftar make it to a presidential run-off, he would back Bashagha as prime minister; if, instead, Bashagha made it to the final stage (and Haftar did not), Haftar would endorse him in exchange for the promise of ministerial positions for allies. They also agreed that, if elections did not take place, Haftar would support Bashagha as head of a new government in return for concessions in the cabinet lineup and on the condition that Bashagha increase funds allocated to Haftar-led military forces.

Bashagha’s appointment as prime minister is part of a controversial arrangement ratified by the House in February 2022 that purported to create a new roadmap for Libya.  By this plan, the House and the Tripoli-based High State Council will task a committee of 24 experts with amending the draft constitution completed in 2017 but never adopted; if at least two thirds of its members agree on the proposed amendments, the new draft will be put to a referendum. 

Supporters of this proposal, who include the majority of House members and some High State Council members, believe these steps must precede elections. But the timeline for the steps is open-ended, prompting influential Libyans to denounce the plan as unrealistic, and one Libyan constitutional expert to decry it as “a mere exchange of favours between [rival politicians] who get to stay in power indefinitely in exchange for their support for Bashagha”.  The fact that House members approved the roadmap unanimously hours after it had been drafted and minutes before Bashagha’s nomination seemed to confirm that it was a pre-cooked elite deal.

The document is also confusing, poorly drafted and at times self-contradictory. A careful reading reveals that many of the procedures it envisages – such as the region-based approval criteria for the referendum it introduces or the second review by the Constitution Drafting Assembly (a 60-person body elected in 2014) it proposes – are politically and legally controversial.

The voting criteria for the referendum contemplate that it will be approved if 50 per cent plus one of the voters in each of Libya’s three regions approve it. But Libya does not have a law charting the boundaries of its three historical regions (Tripolitania in the west, Cyrenaica in the east and Fezzan in the south). As such, these are merely aspirational geographical areas rather than proper administrative territories with legal force. Delineating these boundaries is politically sensitive; should legislators try to do so, they might ignite feuds that could postpone the electoral process.

Similarly, the decision to mandate the Constitution Drafting Assembly to review the draft constitution should it fail to be endorsed in the first referendum is controversial. Many members of the Assembly, who believe that the existing draft constitution should be put to a referendum in its current form and not be revised, have not agreed to this step. Because of these and other red flags, the implementation of this roadmap would likely spark new feuds that would make it impossible to complete the constitutional review, thereby delaying elections indefinitely.

The second group wants Dabaiba’s interim government to remain in place, followed by parliamentary elections, and not to hold a presidential ballot or reopen deliberations on the constitution at this time. They believe that the House of Representatives is the main source of Libya’s woes and point to the controversies over the election laws the House passed in 2021 and the 1 March vote of confidence to support their position.

They want to entrust the next parliament with appointing a new government and resolving Libya’s constitutional conundrum. This camp includes western Libyan politicians who led the revolt against Muammar al-Qadhafi, as well as, in an unexpected twist, the late dictator’s son Saif al-Gaddafi. In all other respects, Saif a-Gaddafiis at odds with those who helped depose his father, but his camp supports this option mainly out of aversion for the Haftar-Bashagha deal, which they think would instal a government that will never allow elections to take place. Not surprisingly, Dabaiba also gives full-throated support to this course of action.

This second option has both advantages and disadvantages. Postponing the presidential ballot would allow Libyans to sidestep the thorny legal problems that helped scuttle the December vote and remove the winner-take-all dynamic from Libyan electoral politics. It would also allow legislative elections to move ahead without a new constitution first. Yet the House may oppose this path, as most of its members favour having an elected president first. Like many Libyans, they deride calls for stand-alone parliamentary polls as an Islamist ploy fearing that Islamists, who oppose a presidential system, might win control of the next parliament and then do away with presidential elections entirely.

External actors such as Egypt, which has a centralised presidential system of government with strong links to the military and aspires to see the same in Libya, also believe that parliamentary elections would be an unacceptable concession to Islamists, whom Cairo opposes.  According to other Libyans with ties to Egyptian officials, Cairo’s position is more the result of practical considerations than of ideology. They say Egypt maintains good relations with Parliament Speaker Saleh that it does not want to imperil.

Regardless of what is driving Cairo’s position, France and the U.S. appear to have followed Egypt’s lead on this matter, with one diplomat explaining it is “simply impossible” to get Cairo on board with parliamentary elections in Libya.  Other countries with stakes in Libya and no apparent reason to take their cue from Cairo, such as Turkey and Russia, have nonetheless refrained from proposing alternatives, in large part because the UN had also embraced simultaneous presidential and parliamentary elections as the way forward, making them the centrepiece of its mediation. All of this explains why, thus far, foreign states have not given much consideration to roadmaps that prioritise parliamentary elections.

To gain traction, supporters of stand-alone parliamentary elections would need to change perceptions that this option is an Islamist ruse and convince a wider swathe of the Libyan public that it is a valid approach given the impasse over the presidential election. With the public on their side, they might be able to pressure the House to adopt a new electoral law scrapping the presidential ballot or find a way to circumvent the body.

Prime Minister Dabaiba suggested in mid-February that his cabinet would draft a new electoral law that he would somehow enforce himself should the legislature oppose adopting it.  Before that, some western Libyan politicians were calling on people to take to the streets to demand the House’s dissolution.  It is unclear if such appeals will generate momentum. Many ordinary citizens are disillusioned with formal politics and have little motivation to protest, believing that their opinions will not change the trajectory set by a handful of self-interested elites. They are also fearful that armed groups with political connections would mobilise against them or that they could lose their jobs.

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