Libya’s Constitutional Process: Moving Forward?
The lack of security, coupled with growing sentiment that the GNC is losing popular credibility, has brought about an atmosphere of general discontent. Overcoming these challenges and ensuring stability is the task of the Libyan government and its people. However, there is an important role for the international community to play in supporting Libya’s transition and guaranteeing that the process moves forward in a transparent, inclusive, and successful way.
Since GNC elections in July 2012, the central question surrounding the constitution-making process has been whether the constituent assembly would be elected or appointed, or a combination of the two. When the GNC took office, the Constitutional Declaration (an interim legal framework handed down by the self-appointed National Transitional Council) called for elections. Legal and political challenges were lodged against the declaration—amid a tense security environment in which extremists in the east threatened violence if their demands for elections were not met—leaving the future of the constituent assembly unclear. The GNC has settled the issue by way of a clarifying constitutional amendment: the constituent assembly will comprise sixty members directly elected from each of Libya’s three historical provinces in the east, west, and south.
The method of selection is far from clear. The challenge of representing all of Libya in the constituent assembly is vast, compounded by the small number of seats available. Libya is plagued by regional tensions, not only among the provinces but also within them. Every important committee in Libyan politics is divisible by three, in order to secure equal representation for the provinces. Representation of ethnic and linguistic groups is also critical, given the violence against Tebu tribes in the south and historical marginalization of Tebu and Amazigh populations under Muammar al-Qaddafi.
GNC members—and Libyans generally, according to a recent poll conducted by the University of Benghazi—also believe that members of the constituent assembly should have high academic qualifications, with a mix of experts in fields such as law, political science, economics, and linguistics. Libyans have placed enormous demands on the constituent assembly, which is expected to include fair representation of regions, ethnic groups, women, and professional qualifications. Indeed, the delicate balance of representation and qualification was the chief argument in favor of appointment, so that the membership of the assembly could be strategically crafted.
The election law, which will define the constituencies, quotas, candidate qualifications, and electoral system to govern the elections for the constituent assembly, will address the challenge of representation in the constituent assembly. Remember, the law must fit these rules under the predefined parameters of a sixty-member body with twenty representatives from the east, south, and west. This week, the GNC announced the membership of the committee that will embark on this daunting task.
The committee comprises eighteen members, divided among the country’s three regions: three GNC members (one each from east, west, and south), plus fifteen non-GNC experts. The committee has forty-five days (until the end of May) to draft the law, which will then be passed to the GNC’s Legislative and Constitutional Committee for a recommendation to the GNC plenary. The High National Elections Commission, recently reestablished after running the successful GNC elections, has estimated that it needs between five and six months to conduct an election after the law is passed, raising expectations that new elections may take place before the end of the year.
The amendment to the Constitutional Declaration states that the constituent assembly will have one hundred twenty days from its first meeting to prepare a draft constitution. Several GNC members questioned the likelihood that the assembly would adhere to this timeframe, but may be committed to this timeframe for fear that they would be seen as extending their own mandate in office. What would happen if the deadline is unmet is unclear. The draft constitution must be approved by two-thirds of the constituent assembly, followed by a public referendum; the GNC will not vote on the draft constitution.
The drafting of the electoral law will almost certainly be divisive, given the variables it must balance within rigidly fixed parameters. The electoral law will stir up many of the same tensions in Libyan politics that will likely define the constitution-making process, including regional and ethnic differences, fueled by enduring armed conflicts. The tendency of the GNC to expand the number of participants in the political process, such as ballooning a legal drafting committee to eighteen members, is also a cause for concern. The deferral of decision-making—to a new elected body, across an enlarged committee, to a new election—stalls the transition to democracy. The drafting of a constitution and electoral law should be participatory and transparent, but a small and defined number of those involved should also be held accountable for the decisions they make.
The length and complexity of the process ahead—drafting the law, organizing the election, seating the constituent assembly, and drafting the constitution—raise serious questions about the likelihood the country will remain stable during this transitional period. Violent conflicts rage on, with little progress made despite genuine efforts by the government to consolidate armed militias nationwide, some of which are motivated by religious extremism. Nevertheless, with the process now enshrined into the constitution by the country’s legitimately elected body, Libyans must now focus on resolving the serious difficulties that are sure to emerge in the coming months.
Given the divisive questions inevitably raised during the constitution-writing process, the international community’s support has a significant role to play. First, on both multilateral and bilateral levels, the international community should pressure the government of Prime Minister Ali Zidan to hasten legal reform and economic development (specifically job creation) to placate the growing discontent stemming from the country’s difficult economic conditions. Second, the international community must continue to support the government to achieve an acceptable level of security and territorial control. This can be achieved through a variety of measures, from directly training the Libyan army and police forces to the provision of equipment to forces already on the ground. Third, the international community should pressure the GNC and the forthcoming constituent assembly to proceed in their respective role in a way that is swift and inclusive. Finally, the international community must emphasize to the GNC, and the future constituent assembly, the importance of prioritizing a communications strategy in order to maintain credibility among the population. Both institutions, as well as the new committee writing the electoral law, should be careful not to set unrealistic timelines for the completion of its work; and each should have a dynamic media strategy to inform the population as frequently and as clearly as possible on ongoing progress and concurrent challenges. The inability of the GNC to set out effective timelines and communicate ongoing progress with the population has been one of the chief causes of discontent and its decreasing credibility among Libyans.
Only through strong collaboration among all members of elected institutions, a vibrant civil society, and decisive support from the international community can Libya overcome the hurdles of its transition and safely proceed in developing a stable democracy.
Karim Mezran is a senior fellow with the Council's Rafik Hariri Center for the Middle East. Duncan Pickard is a non-resident fellow for the Rafik Hariri Center for the Middle East focusing on political and economic development in North Africa.