Vito Todeschini
Presidential and parliamentary elections have long been heralded as a solution for Libya’s political instability. This process, however, has so far been characterized by a weak electoral infrastructure and power struggles between Libyan political actors.
The international community has long invested in holding presidential and parliamentary elections in Libya as a solution to the political, economic, and security crises that have characterized the country since the fall of Muammar Gadhafi in 2011.
While a first attempt to hold elections on December 24, 2021 has failed, since the beginning of 2023 the UN Support Mission in Libya (UNSMIL) and the Special Representative of the Secretary-General (SRSG), Abdoulaye Bathily, have doubled down on their efforts to have the elections take place at the end of this year.
One of the factors that has hindered the electoral process is the absence of a constitutional framework that clearly defines the form of government and division of powers in Libya. The Draft Constitution elaborated by the Constitutional Drafting Assembly between 2014 and 2017, and adopted in July 2017, has never been put to referendum, and the Constitutional Declaration, adopted by the National Transitional Council in August 2011, still functions as the interim constitutional text of the country.
With a view to adopting a constitutional basis for elections and electoral laws, since early 2022 UNSMIL has facilitated dialogues between the two main Libyan legislative bodies: the House of Representatives (HOR), elected in 2014 and whose mandate has now expired; and the High Council of State (HCS), an advisory body established under the 2015 Libyan Political Agreement.
However, the possibility of new elections unseating the heads of these bodies, Agilah Saleh (HOR) and the Khaled Al-Mishri (HCS), as well as the current Prime Minister Abdulhamid Dabaiba, have led these political figures to repeatedly frustrate the process, a risk that continues to persist.
Until the end of her mandate in July 2022, former Special Adviser to the Secretary-General, Stephanie Williams, convened a number of meetings between the HOR and HCS in order to achieve progress on the elections file, yet with no conclusive results. After his appointment in September 2022, the new SRSG Bathily continued the dialogue with the various political and institutional parties in Libya, in an attempt to overcome the ongoing impasse.
By the end of 2022, the HOR and HCS sorted out most issues surrounding the adoption of a constitutional framework for elections. Yet, they stalled on two specific issues pertaining to the eligibility criteria for presidential candidates, namely, whether dual nationals and military personnel can run for elections. These points directly concern the ability of General Khalifa Haftar to participate in the presidential run.
Intra-Libyan dialogues
On February 7, 2023, the HOR adopted Amendment No. 13 to the Constitutional Declaration, which aims to serve as a constitutional basis for election by laying down the future form of government for Libya.
In particular, Amendment No. 13 provides that the President would be the Head of Government and would be based in Tripoli, while the Parliament would be composed of two chambers: a House of Representatives based in Benghazi and a Senate based in Tripoli. The HCS approved Amendment No. 13 on March 2, 2023. However, 55 out of its 135 members contested the vote, alleging that the quorum necessary for a valid vote within the HOR had not been met.
Furthermore, they expressed concern with regard to the content of the Amendment, particularly its failure to clarify the eligibility criteria for presidential candidates, the broad powers granted to the President, and the clause connecting the holding of parliamentary elections to presidential elections. In addition, the SRSG criticized the Amendment because “[it] does not stipulate a clear road map and timelines to realize inclusive elections in 2023, and adds additional contentious issues such as the regional representation in the Senate.”
Meanwhile, on February 26, 2023, the HOR and HCS agreed to nominate their representatives for the so-called “6+6 Committee,” tasked with drafting the necessary electoral laws and working out the contentious issues surrounding Amendment No. 13. This mechanism was supported by UNSMIL, with the SRSG stating that the “6+6 Committee” needs to complete its work by early July 2023 for the elections to be held by the end of the year. The “6+6 Committee” met between May 22 and June 6, 2023 in Bouznika, Morocco, where it eventually reached an agreement on draft laws for presidential and parliamentary elections.
As pointed out by the SRSG and some commentators, however, the draft texts remain problematic in several respects, including in relation to the eligibility criteria for presidential candidates and the provision that makes the holding of parliamentary elections dependent on the successful holding of the first round of presidential elections. Further delay in sorting out the outstanding issues, in a way that is acceptable by all Libyan stakeholders and that allows for the practical implementation of the electoral laws, will inevitably impede having national elections take place by the end of 2023.
The SRSG’s renewed approach
The volatility of the intra-Libyan dialogues and the relentless political struggle between Saleh and Al-Mishri have constantly risked derailing the electoral process, and eventually hampering the holding of elections by the end of 2023. For this reason, the SRSG has decided to launch a parallel initiative to the HOR-HCS talks.
During his remarks to the UN Security Council on February 27, 2023, the SRSG, while pointing to the limited progress achieved until then on a constitutional basis for elections, announced his plan to establish a High-level Steering Panel for Libya. This mechanism aims to bring together multiple Libyan stakeholders such as “representatives of political institutions, major political figures, tribal leaders, civil society organizations, security actors, women, and youth representatives.”
The stated goal of the SRSG’s initiative is to enable “the organization and holding of presidential and legislative elections in 2023,” including by facilitating the adoption of the legal framework for elections and a Code of Conduct for candidates, outlining a clear and time-bound roadmap, and devising security arrangements to hold the elections in safety. The SRSG’s approach was subsequently endorsed by the UN Security Council through a presidential statement.
Beside attempting to pre-empt spoiler moves by Libyan political actors, the SRSG’s intention is to make the electoral process more inclusive. Whereas the HOR-HCS talks keep the process within a strictly institutional context, which allows the heads of the two bodies to maintain control over it, on paper the High-level Steering Panel for Libya would give other institutional and civil society actors a chance to have a say in the design of a framework and roadmap for elections.
In his remarks to the UN Security Council on April 18, 2023, the SRSG indeed stated that “[i]t is vital for the success of elections that all parts of Libyan society are involved and have their voices heard, and that the electoral campaign provides an opportunity for a peaceful competition of visions and programs and not an occasion that triggers hate speech and violence.”
Outlook
While the international community has bet on elections as the chief way to bring political stability in Libya, some experts have expressed strong criticism towards this approach, arguing that the SRSG’s plan replicates the model that led to the failed attempt to hold elections in December 2021, and that the looming risk is for Libya to relapse into conflict.
Moreover, even if elections were successfully held, there is a real danger that the process fails to be “free, fair, transparent and inclusive” of women, the youth, minorities and civil society as called for by the UN Security Council. Among the many factors that could taint the process are the widespread online and offline violence against women, including those running for office, as well as an ever-shrinking civic space, which hampers the Libyan civil society’s ability to exercise the necessary democratic control and monitoring.
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Vito Todeschini is a legal expert in human rights law, international humanitarian law, and international accountability, focusing on Libya, Palestine/Israel, and the wider MENA region.
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