LEGAL CHALLENGES
The legal framework for SWM in Libya is confusing, self-contradictory, and in conflict with recent government decrees, resulting in the reversal of several reform attempts.
Libya was among the first countries in the MENA region to regulate SWM in 1973. The Health Law No. 106 (1973) was the first Libyan law that placed municipalities in charge of waste management.
Ten years later, Libya passed its first and only law specifically for SWM, Law No. 13 (1984) of Public Cleaning, which also assigns the management of solid waste to municipalities. Another relevant law is the Environmental Protection Law No. 15 (2003), which focuses on environmental issues in general.
It reconfirms that SWM is the responsibility of the local authority, referred to as Shaabiyat in the law.(20) Last is the Local Administration Law of 2012, Law 59, which also tasks the municipalities with SWM. All of these laws are vague about the role of municipalities in SWM.
They do not clarify the varying roles and relationships of the different institutions involved in this sector. Moreover, they are outdated and in many instances refer to institutions that no longer exist; for instance, the Public Cleaning Law (1984) has not been updated for 37 years.
Additionally, these laws use the term “cleaning” for SWM, which is an outdated administrative term as it makes the ultimate objective for SWM in Libya primarily the prevention of waste accumulation in streets, neglecting other aspects that affect the quality of SWM services such as waste treatment and recycling as well as the broader environmental impact of solid waste.
Despite the fact that all laws that regulate SWM in Libya assign the management of solid waste to municipalities, or the local level in general, the service is currently under the financial and executive control of the MoLG.
This is mainly because in 2010 the Libyan government issued Decree No. 434, which mandated that the PSCs deliver the service and assigned the management of the service to the Ministry of Public Facilities. Since 2012, the MoLG has taken over the management of the service.
The government has tried to facilitate the delegation of responsibilities, but, due to legal challenges, most of these efforts have made no tangible progress. The 2016 court case by the PSC in Tripoli well illustrates some of the legal challenges for the delegation of responsibilities from the central level to the local level.
In 2016, the PSC of Tripoli appealed the government’s Decree No. 52 (2016) which mandated that PSCs work with the Public Facilities Office at each municipality, a de facto delegation of responsibilities.
The court found in favor of the PSC and reversed the government’s decision based on the following legal ground: per Law 59, the municipalities can only manage public facilities established by governorates, an intermediate government tier that was never established, and have no authority over the PSCs, which are products of the central government.
Furthermore, as per Decree 434 (2010), which regulates the work of the PSCs, the PSCs shall be managed by a ministry, not a local authority. The ruling adds that for solid waste management, as per Law 59, municipalities shall only play a supervisory role and cannot directly manage the delivery of the service.
In an attempt to pave the legal pathway for the delegation of responsibilities, the Presidential Council (PC) of the Government of National Accord and the MoLG passed a number of decrees in 2018 and 2019, Decree No. 28 (2019) being the cornerstone of these decrees.
Decree No. 28 provides general guidelines for SWM and defines the role of municipalities in SWM. The decree states that the municipalities shall be in charge of public cleaning work and shall contract any licensed company for trash collection services.
To complement this decree, the MoLG created a template for contracting solid waste collection and transportation services to public and private sector companies.
Seizing on the waste accumulation crisis in Tripoli in 2019, the PC issued Decree No. 1011 (2019) authorizing six municipalities inside Tripoli to undertake cleaning work with a budget transferred from the budget allocations for Tripoli’s PSC.
In response, the PSC in Tripoli challenged all of these decrees in court and won the case again. The court in its decision argued that the government decrees are in violation of Law 59 (2012) and Law 13 (1984).
Therefore, these decrees have changed nothing on the ground so far and have only resulted in deepening the rift between the PSCs and the government. It is also important to note that some municipalities rejected the decision as well, fearing that the government would only delegate the responsibilities but not the funds.
The only Libyan legislation in place for local administration (Law 59 of 2012) also provides a distorted path for the delegation of responsibilities. Law 59 states that municipalities shall establish and manage public facilities that are in charge of public cleaning.
It has been almost a decade since the adoption of Law 59, but its provisions on the municipalities’ role in SWM remain unenforced. Among other factors, this is due to its executive regulation, Cabinet Decree No. 130 (2013).
While Law 59 tasks municipalities to manage SWM, its executive regulation only grants them a supervisory role.(25) The fundamental contradiction between Law 59 and its executive regulation regarding what role municipalities shall play creates confusion and legal disputes.
In summary, Libyan laws for SWM are incompatible with each other and fail to form a comprehensive legal framework for SWM in Libya.
The roles of the different institutions and service providers are at best vague and at worst contradictory because Libya has issued several laws and decrees that address SWM without a comprehensive strategy for the sector.
As long as these laws are active and unchanged, the legal framework for SWM will present a challenge to any attempt to improve service delivery.
RECOMMENDATIONS
This policy paper proposes a set of short- and long-term practical recommendations for national and international policy makers. The short-term recommendations, which represent what should be done in the next year or so, are grounded in realism about the limits of what can be achieved given the current situation in Libya.
Short-term recommendations:
Start negotiations and dialogue with the 23 PSCs to ensure that they do not block the process again. Given that they have the most to lose from this process, the government will need to address their fears and find middle ground with them. One approach could be to assign them to do cleaning work for public spaces or governmental buildings, in addition to allowing them to bid on all other tenders. Further, the government should design a special program to address overstaffing and to limit PSCs’ political weight, which partly stems from their large number of employees.
Revoke Decree 434 (2010) and issue an updated version that takes into account Law 59 (2012). Decree 434 is the regulating document for all PSCs, and it states that PSCs are in charge of public cleaning work and report to the Ministry of Public Facilities. If the government does not update this decree to indicate that PSCs should bid alongside private companies on municipal tenders as well as change the fact that PSCs only report to a ministry, all efforts to transfer responsibilities can be challenged in court.
Update the Executive Regulation of Law 59 to reflect the role of municipalities in SWM as provided by Law 59. While Law 59 tasks municipalities with the direct management of SWM, its executive regulation only grants them a supervisory role. If this is not corrected, it will always remain a loophole in the legal framework that can prevent local control.
Long-term recommendations:
Engage civil society organizations (CSOs) to fight bad practices and exert pressure on trash collection companies. There is little to no collaboration between public authorities and CSOs in SWM. CSOs have a vital role to play to combat harmful practices, such as trash burning, through public campaigns to raise the awareness of citizens.CSOs can also serve as monitors on the ground and can help the municipalities evaluate companies’ performance.
Update Law No. 13 (1984) and Law No.15 (2003) to clearly define the role of municipalities in SWM. These laws are vague and outdated. They refer to old local administrative units that no longer exist in Libya and fail to clarify the different roles of the different entities in SWM. Also, these laws should formally recognize the role that CSOs can play with municipalities in this sector. Without updating these laws, municipalities cannot obtain full responsibility of SWM.
Equip and train enforcement and accountability institutions such as the Municipal Guard and the Environmental Sanitation Offices at each municipality, which currently exist but play no role in the process. Especially in big cities, the roles of these two entities in enforcing su improve service delivery.
Develop technical expertise at the ministry level. The SWM sector in Libya suffers from lack of technical expertise: experts who are experienced and equipped to address institutional and management issues for SWM. Without having inhouse technical capacity to develop long-term sectoral goals and strategies and design best-fit solutions, the SWM sector in Libya will remain unable to meet the needs and demands of citizens.
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Source: “Challenges And Steps Forward For Public Services Reforms In Libya” by Mohamed Elmagbri, Heba Al-Sheikh, Lamis Ben Aiyad, and Rima Hamidan. Published by The Friedrich Ebert Stiftung.
