Steering Libya Past Another Perilous Crossroads (2)

The question of whether the House’s confidence vote met legal requirements is a point of contention. In early February, Saleh, the House speaker, suggested ambiguously in meetings with diplomats that he would accept a vote result based on a simple majority (50 per cent plus one) of the members present. But the institution’s internal rules state that such a vote requires approval from 50 per cent plus one of all House members – not just those in attendance.  

Saleh eventually agreed to hold the vote based on the total number of House members, but he never clarified how many members the House has and hence how many were needed for a quorum. Many of the original 200 members elected in 2014 either had resigned or were boycotting; some had been replaced, but the total number of deputies was nonetheless uncertain. Legislators gave the UN and foreign diplomats conflicting estimates of the remaining number of parliamentarians, ranging from 164 to 188. As a result, estimates of the quorum for a valid confidence vote varied between 82 and 94. Only after the vote took place did Saleh state that the quorum is 82.

The UN special adviser, Stephanie Williams, held a different view on the requirements for the vote. First, she agreed that a simple majority of House members suffices to pass a vote of confidence but added that the High State Council would also need to back the new government to ensure consensus between the rival assemblies (both of which were required in the 2015 UN-backed Libyan Political Agreement).  

Secondly, she told the House speaker that in order for the new government to have the UN’s blessing, the confidence vote should be transparent and meet legal requirements, suggesting that the vote be broadcast on television and that members be required to visibly say the word “confidence” (thiqqa) aloud in order to register an affirmative vote for the new government. This procedure had been adopted for the vote of confidence in Dabaiba’s government and the UN wanted to replicate it to avoid the risk of a contested outcome.

But the 1 March 2022 confidence vote wound up igniting controversies that had been on the back burner until then. That day, the House speaker counted 101 members in attendance, with 92 voting in favour. This number was close to or higher than the earlier quorum estimates. But video footage showed fewer attendees than 101, and only 88 names were read out during the roll call for the vote. The number of parliamentarians who pronounced the word thiqqa was unclear because they did not speak into microphones.

Things only got more confusing. On 2 March, parliament clarified that the discrepancy in numbers came about because eight lawmakers had dialled in from remote locations for security or health reasons, while others preferred to cast their votes anonymously after receiving threats from pro-Dabaiba armed groups. The House also changed the total number of those in favour of the new government to 96, adding to the confusion.  

Bashagha said the ballot was “clear and transparent” and vowed to take office in Tripoli in “a peaceful manner”.  The next day, however, Dabaiba called the vote a “coup” attempted through fraud.  The UN also weighed in on the matter. On 2 March, the UN secretary-general’s spokesperson said the vote “fell short of the expected standards of transparency and procedures and included acts of intimidation prior to the session”.

Amid these developments and the ensuing controversies, only a few Libyans, primarily less prominent presidential candidates and civil society activists, are still publicly calling for simultaneous presidential and parliamentary elections as a matter of priority. Their hopes were dampened by the House’s sudden change of direction on the elections and its attempts to appoint a new government. They were also taken aback when foreign powers first seemed to offer support to the parliament’s plan to instal a new executive and then abruptly became ambivalent toward the electoral track, as discussed in Section IV below.

The Libyan group supporting installation of the Bashagha government and a constitutional track remains at loggerheads with the group that backs Dabaiba and proceeding with parliamentary elections. As noted, Saleh and his supporters in the House went ahead with swearing in Bashagha as prime minister. Dabaiba, still acting prime minister, denounced the move as illegitimate, saying he will hand over power to a new government only following elections.

Politicians in Misrata, hometown of both Bashagha and Dabaiba, say the city is divided.  Both sides have the support of military factions. Misratan armed groups allied to Dabaiba on 2 March detained two of Bashagha’s cabinet ministers, who were subsequently released. Bashagha seems adamant about going to Tripoli and, on 10 March, reportedly moved toward the capital in a convoy of several hundred technical vehicles belonging to allied armed groups. The next day, they pulled back, however.

Whether the House is empowered to replace Dabaiba was from the outset a matter of debate. Saleh contends that the House has this prerogative, and that Dabaiba’s mandate expired on 24 December. According to this view, the election delay cannot justify extending the government’s life. Saleh appears to derive this position from his interpretation of the UN-backed roadmap.

Others, including pro-Haftar officials and anti-Dabaiba constituencies in western Libya, also support the prime minister’s removal. They allege that he violated his pledge not to stand in elections and misused public funds by allocating them to family members.  The chief prosecutor, a member of this group, ordered the arrest of two cabinet ministers on fraud charges, respectively in late 2021 and January 2022.  In an open letter addressed to the UN, 93 members of parliament stated that appointing a new government was not an end in itself, but rather a means of “stop[ping] the waste and great depletion of the state’s funds, which has exceeded traditional levels of corruption”, in addition to restoring confidence between rival factions and creating the conditions for elections to be held.

But Dabaiba’s supporters say the House has no right to sack the prime minister and appoint a new government, given that the interim executive was chosen through UN-backed negotiations.  They say Saleh’s push to oust Dabaiba may have a personal element, as he lost out to the latter in those talks. They also say the animosity toward him is nothing but payback for his efforts to deny certain politicians access to state funds.

Dabaiba has a good working relationship with the head of the Central Bank of Libya, Siddiq El-Kebir, and has been able to tap into state funds for government operations and investments even in the absence of an approved budget law. (The House refused to pass such a law in April, following disputes with the prime minister on proposed investments he had to fund.) El-Kebir’s loyalty to Dabaiba is not set in stone, but legal problems surrounding the 1 March vote of confidence are likely to push the Bank’s governor to remain by the interim premier’s side for the time being. Without access to state funds, the new parliament-backed government will eventually have difficulty operating. If Bashagha manages to enter Tripoli and try governing from there, the Bank head could change his approach.

As the dispute has unfolded, divisions among foreign actors have mirrored Libya’s cleavages. From 2014 until 2019, several countries intervened heavily in Libya’s divided politics, with two de facto coalitions backing the opposing governments and military factions. The United Arab Emirates (UAE) and Egypt supported the east-based government and Haftar, while Turkey and Qatar stood with the government in Tripoli.

France, which had security cooperation programs with the UAE and Egypt and was angry with the Tripoli authorities over their alleged failure to curb trans-Mediterranean migration, was also embroiled – as, to a lesser extent, were other European countries and the U.S. (officially on Tripoli’s side, but at times greenlighting Haftar’s moves) and Russia (on Haftar’s side). Tensions among these external actors were high at times, but over the past two years, they have opened diplomatic channels to help manage the fragile stabilisation effort that is under way.

The de-escalation among foreign actors helped enable the rapprochement in Libya in 2020-2021, and it has also contributed to these countries’ muted responses first to the disputes surrounding the failed elections and later to the quarrels over the legitimacy of the new parliament-backed government. For the moment, they appear to have little appetite for deepening the divisions or igniting renewed confrontation between their allies.

Nevertheless, foreign capitals have preferences for what ought to come next. Or rather, they had preferences prior to the controversial vote of confidence, but made quick recalculations after the vote.

Cairo had given its initial blessing to the House’s efforts to instal a new government, seemingly believing that Libya would benefit from an alliance among former enemies like Bashagha and Haftar. Beginning in early 2022, Egyptian officials actively supported reaching an understanding between the two and proceeding with the plan based on their deal.

Paris appeared to be following Cairo’s lead in supporting a deal between Haftar and Bashagha, in a U-turn from its lobbying in 2021, including among EU member states, for presidential and parliamentary elections.

Western diplomats say Doha also supported Bashagha’s bid, with some suggesting it is lending him financial support.  Libyan politicians close to Qatar insist that it is staying neutral in the feud.

The same cannot be said for the UAE. Abu Dhabi previously bankrolled Haftar, also providing military equipment for his 2019 war on Tripoli. For now, however, it is pushing for Dabaiba to remain in power. Emirati officials oppose Bashagha due to his alleged responsibility in authorising the bombing of al-Jufra military base during the 2019 war, which killed a handful of Emirati pilots stationed there (allegedly to operate UAE-funded attack drones).  The UAE also has financial ties to the Dabaiba family, which might provide another reason for its inclination toward the interim premier.

Russia and Turkey have been ambivalent about the way forward. Some Libyans suggest the two are not particularly supportive of the Haftar-Bashagha deal.  That stance would be surprising in light of some historical facts. During the 2019-2020 war in Tripoli, Moscow was close to Haftar in opposition to Bashagha and Ankara was allied with Bashagha against Haftar. Private contractors from the Kremlin-backed Wagner Group have operated alongside Haftar-led forces, while Bashagha played a prominent role in securing Turkey’s military intervention on Tripoli’s side in 2020.

But it appears that Turkey reacted coldly to Bashagha’s overtures to Haftar.  At the tail end of his first visit to the UAE since the two countries’ relations warmed in 2021, Turkish President Recep Tayyip Erdoğan said he prefers that Dabaiba stay in power until elections, echoing Abu Dhabi’s position.

For its part, the Russian foreign ministry blessed Bashagha’s bid for the premiership, but some Libyan politicians argue that, despite such statements, Russia remains wary of the deal, at least in part because Bashagha and Haftar seem to concur on the need to get rid of the Russian contractors as a way of obtaining U.S. support.  The Kremlin’s confrontation with the West over Ukraine makes its strategy in Libya unpredictable.

The U.S. and European positions have been hard to discern. Generally speaking, Libya is not a priority file for Washington and its policy position is often the result of broader calculations vis-à-vis its other regional allies. Prior to December 2021, U.S. diplomats were vocal in their support of simultaneous presidential and parliamentary polls, at one point threatening to slap sanctions on spoilers. Today, Washington seems to prefer to watch politics play out on the ground.  (Prior to the vote of confidence, however, Bashagha told Libyan interlocutors that he had Washington’s support. )

Other European countries, including Italy, also seem to be watching developments and preserving some flexibility. That said, a Western diplomat confirms that there was a general understanding among European capitals, Washington and London that should the Libyan parliament proceed with a vote of confidence that showed overwhelming support for a new executive and complied with the UN’s requirements, they would recognise it.

But that did not happen. After the UN voiced reservations on the vote of confidence, no country, with the notable exception of Russia, officially recognised the new government. France, Germany, Italy, the United Kingdom and the U.S. issued a joint statement “taking note” of the UN’s position and calling on “all actors to refrain from actions that could undermine stability in Libya”.  

Egypt and Saudi Arabia in a joint statement affirmed their support for a “Libyan-Libyan political process”, a reference to negotiations that had taken place between the House of Representatives and the High State Council, and reiterated their backing for the east-based legislative body.  None made explicit mention of the parliament-backed prime minister, which was perceived to mean that they did not recognise his appointment. Tellingly, Bashagha’s request to hold a videoconference with foreign ambassadors accredited to Libya on 6 March fell through when he asked to be addressed as prime minister.

Foreign countries are thus not doing much to help find an exit to the Libyan impasse, but by taking a united stance in calling for negotiations and calling on Libyans to refrain from violence for now at least they are not making the situation worse. Their attitudes toward the issue may not become significantly clearer any time soon, as the Russian invasion of Ukraine seems certain to dominate their attention for some time to come.

All the manoeuvring of the last several months boils down to a single question: whether an elite pact is the best way forward for a country that emerged from years of civil war only eighteen months ago or whether elections should take precedence. There are legitimate arguments for both options. An elite deal, enshrining an alliance between rival factions, could provide a degree of stability and lessen the chances of a relapse into violence. Yet elections could mark a clean break from years of bad governance and restore legitimacy to Libya’s state institutions.

Both options also have drawbacks. An elite deal would empower actors with an interest in postponing elections indefinitely and anger the constituencies who are left out. Organising elections, on the other hand, would require resolving the many political and legal problems that led the elections commission to suspend the ballot in the first place. In addition, parties might contest election results, possibly giving rise to renewed violence.

Equally polarising are the arguments concerning the constitutional track. Its supporters say a new constitution is needed to define state institutions’ powers and responsibilities prior to elections. Its opponents argue that these negotiations will lead to a dead end and are just a ruse on the part of elites looking to stay in power.

While there is no obvious way forward, the stalemate is dangerous. The immediate priority should be to prevent institutional collapse. In practical terms, the parties need to kickstart political negotiations to avoid a scenario in which the rival governments once again turn the country into a patchwork of territories under the control of one administration or the other. In that scenario, the parties could re-enter a tug of war over the control of state institutions, especially the National Oil Corporation and the Central Bank, which respectively hold the key to generating and distributing state funds to the population.

For now, the House of Representatives, which backs the Bashagha government, has refused to take part in negotiations with the rival Tripoli-based High State Council – notwithstanding the offer from the UN special adviser, Stephanie Williams, to convene such talks. Only the High State Council has replied favourably. House members argue that as far as they are concerned, the new government is legitimate and the parliament has already endorsed a new political roadmap setting out procedures to review the constitution draft prior to elections.  

For them, there is no need to start negotiations anew. They are banking on the belief that Bashagha will be able to enter Tripoli, persuading armed groups in the capital to side with him and the Dabaiba government to eventually leave. Should the situation pan out this way, which at the moment seems highly improbable, there is no doubt that there will be even fewer incentives for this camp to enter negotiations.

But the situation could well evolve in a different direction – either because of a deadlock between the two governments inside Tripoli or because the Bashagha-led government and its military allies prove unable to enter the capital or remain without international recognition and access to Central Bank funds.

In that case, the Bashagha group’s calculations might change, and negotiations might seem more appealing. Diplomats are hopeful that this scenario may be in the offing. They say they are already receiving private messages from Bashagha, and House Speaker Saleh, signalling willingness to embark on talks.  These reports contrast with the parliament’s official statement on the matter.

The question then becomes what the talks should be about. For now, foreign stakeholders are ambiguous about the matter. The UN special adviser offered to mediate discussions of how to reach a “constitutional basis” for holding elections as soon as possible.  This wording could imply anything from a full-fledged constitutional track aimed at reaching a final, approved draft constitution, after which elections will be held, to simply drafting a temporary legal framework to allow a ballot to take place.

On top of these options, diplomats suggest that some Libyans are still interested in trying to forge an elite deal on a new government. They believe that by changing some of the ministers in Bashagha’s proposed cabinet and opening up the deal to those supporting the Tripoli-based government, they might stand a chance of securing a sufficiently broad level of support for a grand bargain of sorts.

Consultations between rival factions aimed at forging another elite deal on a new cabinet at this stage should be given a chance, even if they are highly unlikely to bear fruit. This latest attempt to instal a new government has deepened divisions between supporters of the rival prime ministers and the respective assemblies backing them, so the likelihood of their representatives agreeing on a new power-sharing agreement is low.

The UN special adviser could in principle encourage these talks to take place, but she is unlikely to host them given the transactional nature of forming a new government in Libya. That said, should a new power-sharing agreement come about within the next few weeks and should rival factions commit to supporting a new government, it is essential that the parliamentary vote of confidence of the new executive be transparent and in accordance with legal procedures. A rerun of the problems attending the 1 March vote would mar the outcome’s legitimacy and serve no one.

Should these efforts fail, the next option would be to open UN-backed negotiations on a new electoral roadmap. The UN can and is willing to host these. On the issue of which elections should be held and in what sequence, the debate is wide open, as public opinion and political factions remain polarised on the matter.

That said, some lessons learned from the problems of the past months can be distilled. The first is that Libyan politics remains dominated by a winner-take-all mentality and legal controversies over presidential candidates are unlikely to be resolved in a manner acceptable to all factions. As a result, a presidential ballot remains a hazardous choice that risks hitting a dead end, yet again. The second lesson is that embarking on a review of the draft constitution and going to a referendum could very well turn into an endless process that merely cements the status quo rather than enabling elections.

A more logical choice, albeit not currently the most popular one, might be in the first instance to opt for parliamentary elections to replace the legislature elected in 2014 and allow this new body to appoint a new government. In such an arrangement, the new parliament would also be tasked with deciding how to clear the pending hurdles for the draft constitution and subsequent presidential ballot, if the approved constitution so allows.

As mentioned, this option has important drawbacks. Libyans by and large see stand-alone parliamentary elections as a concession to Islamists whom they fear will rob them of their legitimate right to elect a president. Current legislators are also likely to oppose this path because it means they will lose their seats. Egyptian officials, who have actively opposed this option in the past, are also likely to lobby external actors and their Libyan allies to stage a boycott.

In that vein, they will need to vow to hold a presidential election in a second stage after legislative contests. They would also need to persuade the parliament to cooperate in order to secure passage of parliamentary election laws. Should the latter prove impossible, they will need to find ways either to circumvent the legislature or to persuade foreign partners to pressure their friends in the House to work toward this roadmap.

The UN and Western chanceries, which have thus far been under the influence of Egypt’s de facto veto on this course of action, should at the very least consider the option of parliamentary elections in greater detail than they have thus far to gauge its feasibility. While there is no guarantee of its success, this option does contain at least some contours of a workable roadmap toward elections. But whatever option Libyan negotiators choose, it is essential that foreign capitals remain united in supporting the way forward.

A return to war appears to be off the table for now, in large part because foreign backers of Libya’s rival factions have stepped back from the conflict and are distracted by Ukraine, and because Libyans themselves appear to be averse to more fighting. But this moment of calm could prove evanescent. Growing political rivalries throughout Libya could prompt armed groups to mobilise against the Dabaiba government in favour of a replacement. Even if they pull off that move without bloodshed, a legal and political battle would follow, with both Dabaiba and his putative successor claiming the premiership and vying for international recognition.

Rather than installing a new government at all costs – at the risk of dangerously deepening a nationwide rift and splitting the country once again in two – finding a consensual way forward should be the priority for all concerned. There is no right or wrong way out of Libya’s political impasse. Both of the main options – a new power-sharing deal and an electoral roadmap – deserve consideration. Negotiations to flesh out either a new interim government with broad consensus and uncontested parliamentary endorsement or a new and workable roadmap to elections would, without a doubt, be the best path for preserving a peaceful, united Libya.

Appendix A: Libya’s New Political Roadmap

Representatives endorsed a new political roadmap that charts a path toward a constitutional referendum followed by elections. Called Constitutional Amendment Number 12 and approved by 126 of the 148 House members in Tobruk on 10 February 2022, the plan is politically divisive and legally controversial. A close reading of this document reveals that the steps outlined therein could lead to an open-ended political transition that would never see elections.

Among Libyan politicians, opinion about the plan is split roughly in two. At first, the roadmap committees of the House and its Tripoli-based rival, the High State Council, agreed on the plan, but the majority of State Council members subsequently voted against it. House members, for their part, continue to consider it valid.

According to the roadmap, the House and State Council will first task a Committee of 24 experts to amend the 2017 draft constitution within 45 days. If the Committee of 24 does not agree on the amendments, the roadmap envisages the creation of a new committee appointed by the two assemblies to draft a temporary constitutional framework and election laws.

On the other hand, if at least two thirds of the Committee’s members agree on the proposed amendments, the new draft will be put to a popular referendum prior to elections. If it wins popular approval, the House will adopt it and plan elections according to the format outlined by the new constitution. That format could include legislative and presidential elections, and possibly also a ballot for a second chamber, the Senate.

If the new draft fails to be approved in the referendum, the Constitutional Drafting Assembly – a 55-member body elected in 2014 – will step in in lieu of the Committee of 24 to review the new draft (already amended by the Committee of 24) before putting it to a second referendum. If the new changes still do not yield popular approval, the roadmap states that the two assemblies themselves will draft a temporary legal framework and election laws.

Crisis Group has identified eight red flags in the roadmap, highlighting points at which the process could fail.

Red flag #1: The plan states that the referendum will be approved if 50 per cent of voters plus one in each of Libya’s three historical regions (Tripolitania in the west, Cyrenaica in the east and Fezzan in the south) support the draft constitution. As of yet, however, there is no law charting the boundaries of these three regions. As such, these are merely aspirational geographical areas rather than proper administrative territories sanctioned by law. Drawing these boundaries is politically sensitive; should lawmakers attempt it, the resulting tensions could postpone the electoral process indefinitely.

Red flag #2: The roadmap states that the High National Elections Commission needs to be “reconstituted” before a referendum or elections are held. This clause is also controversial. For example, just the appointment of a new Commission board is likely to spark tensions, because there is no consensus on what body is in charge of the Commission. Whether the House must appoint the board alone, or in agreement with the State Council (in accordance with a 2015 UN-backed agreement) has been a source of controversy since 2015.

Red flag #3: The decision to mandate the Constitution Drafting Assembly to conduct the second review should the first referendum not pass poses major problems. The Assembly was elected by popular mandate in 2014; it drafted and approved a constitution in 2017, which it wanted put to a referendum, but the plebiscite never took place amid political controversies. The Assembly has not reconvened since, nor has it issued a statement on its involvement in the new roadmap; some of its members have said they oppose the new plan.

Red flag #4: The roadmap does not state what the approval criteria are for the Constitution Drafting Assembly’s amendments: will they require a simple majority or a two-thirds super-majority of the Assembly’s 55 members? Nor does the roadmap indicate whether other criteria should apply.

Red flag #5: It is unclear what should happen after the constitution is approved in a popular referendum. There are no timelines for the House to adopt new election laws based on the approved constitution, or to hold elections. This process could become open-ended.

Red flag #6: If the Committee of 24 fails to meet the quorum needed to amend the draft constitution (seventeen votes), the roadmap states that the House and State Council must form another committee to draft a temporary constitutional framework and election laws. But it does not indicate how this new committee should be formed, or what the rules for the approval of these laws are.

Red flag #7: Should the Constitution Drafting Assembly fail to agree on amendments, the roadmap vaguely states that the House and State Council will adopt both a temporary constitutional framework and election laws. It does not clarify if the two houses should appoint another committee or if, as a literal reading of the text would suggest, the two houses would need to adopt a temporary constitutional framework and election laws themselves. In both cases, the vague wording could make the process open-ended.

Red flag #8: There are no timelines for the House’s adoption of election laws or to hold the elections if the popular referendum fails but the two rival assemblies agree at least on a temporary constitutional framework to govern elections.