Libya’s tortuous path to a constitution and elections | Politics News


Geneva, Switzerland – Members of a newly elected Libyan caretaker government pledged in Geneva this week to bring the country to national elections on December 24 this year, an ambitious timetable fraught with almost impossible challenges.

The interim authorities appointed by the 75 members of the Libyan Political Dialogue Forum (LPDF) under the aegis of the United Nations must replace the Government of National Accord (GNA), considered as no longer able to bring the country into a phase of national reconciliation and state building.

The three-member Presidential Council (PC) and the Prime Minister will have the crucial task of preparing the ground for fair and transparent national elections and ensuring the safe participation of their citizens in the electoral process.

For elections to take place, the GNA and the outgoing CP will have to dissolve peacefully to make way for the new executive of the unit, which will require the approval of the Libyan parliament. Conflicting financial institutions will need to be unified, armed groups dismantled, critical civilian infrastructure repaired and security restored to enable half a million displaced citizens to return home and participate in elections.

If foreign interference were to end, the interim government would be able to implement all of the above before the election deadline, according to Stephanie Williams, the outgoing UN Special Envoy for Libya. In reality, the long 10-month road between Libyans and the ballot box looks more like a minefield for supporters of the vote.

Abdulhamid Dbeibeh delivers a speech at a meeting of the Libyan Political Dialogue Forum [United Nations handout via AFP]

Precarious ceasefire

Restoring security to enable citizen participation in the war-torn country where armed groups and militias control large swathes of territory is the most difficult challenge.

Libyans have witnessed a precarious ceasefire since October last year, when military officers from the two main candidates for power, the UN-recognized GNA in Tripoli and the renegade military commander General Khalifa Haftar in the east, negotiated an end to hostilities.

However, the two parties took advantage of the relative calm to entrench their positions in central Libya along the Sirte-Jufra “red line” and rearm. Haftar’s Libyan Arab Armed Forces (LAAF), supported by Russia, Egypt and the United Arab Emirates, tightened control of air bases in Sirte and the southern region to prevent an advance by militias from Tripoli further down the road. ‘is.

Meanwhile, the Tripoli GNA continues to receive aid and supplies from its main ally, Turkey, and the outgoing CP has created a new security agency run by prominent armed groups under its control.

The two sides therefore regrouped and resupplied themselves, apparently preparing for a resumption of hostilities. Thousands of foreign fighters remain in the country despite an exit deadline set by the ceasefire agreement which expired on January 23.

“Realistically, I don’t think we are beyond the military phase in Libya,” Mustafa Fetouri, a Libyan scholar and journalist, told Al Jazeera. “I think another violent phase is unfolding.”

Military talks and political dialogue

Despite the military build-up, the Joint Military Commission that negotiated the ceasefire, dubbed the “5 + 5”, is unanimously considered to be the most effective of the three negotiating tracks conducted so far, including economic and political talks.

The ceasefire has allowed a stalled political dialogue to gain momentum, with productive meetings between political and regional factions within the LPDF that have taken place in recent months in Tunisia, Egypt and, finally, in Geneva.

Libya’s two rival factions signed a “permanent” ceasefire agreement in October [File: Violaine Martin/United Nations via AFP]

With the ceasefire, members of the two rival parliaments, the Western High Council of State (HCS) and the Eastern House of Representatives (HoR), met in recent months and called in a national referendum to approve a new draft constitution before the December elections. .

The draft constitution will determine the future state system, its founding principles and the relationships of the three main branches of power – the legislature, the executive and the judiciary. The constitutional referendum, the date of which has not yet been announced, is intended to allow Libyans to discuss the principles of the constitutional project and to decide whether to accept or reject it.

“Libyans must have an open debate on this draft proposal and accept or reject it if necessary,” I’timad al-Musallati, member of the editorial board, told Al Jazeera.

But while a public debate on the new constitution, albeit late, would be desirable, it may take time. In addition, the zeal of the two rival parliaments in favor of the referendum after blocking the draft constitution for almost four years has aroused suspicion in various quarters.

“Elections are welcome but we must focus on the constitution,” Bashir al-Haouch, member of the High Council of State, told reporters in November.

Some fear that a constitutional referendum before the elections could be used as a diversionary maneuver to postpone the vote and perpetuate the status quo.

“There is a group of spoilers in Benghazi and Tripoli who do not want to loosen their grip on power or see changes in Libya,” Karim Mezran, senior resident researcher at the Atlantic Council, told Al Jazeera.

“The constitutional process has been hijacked since its inception, with the result that we now have a flawed draft constitution that no one likes and a constitutional referendum which, if not approved, can block the political process indefinitely.

The draft constitution was approved in 2017 by the Constitutional Drafting Assembly (CDA), a 60-member body appointed by the National Transitional Council after the overthrow of Muammar Gaddafi in 2011.

The House of Representatives, Libya’s eastern parliament, rejected the CDA and blocked the draft constitution until November 2018, when it passed a referendum law.

The draft constitution

The constitution provides for a presidential form of government in which the powers of the president are broad and decentralization is limited. This sparked protests from minority groups and undermined the work of the CDA from the start.

The Amazighs boycotted the CDA, while the Tabu and Tuaregs left the working committee feeling under-represented. The Gaddafi regime had called Libya a homogeneous Arab-Muslim state neglecting ethnic, linguistic and religious minorities. Now these groups believe the draft constitution has betrayed their expectations and failed to grant the level of autonomy they hoped for in a future decentralized state.

In addition, the draft raised concerns about the state system and its democratic guarantees, with some jurists warning of the risk of the future state falling back into an oppressive regime.

“We observed that certain articles of the draft constitution were in conflict with the provisions of international law in terms of human rights, minority rights, as well as the future state system, but most of our remarks did not not recognized, ”Vito Todeschini, a lawyer with the International Commissions of Jurists, told Al Jazeera.

The project has other significant shortcomings, Todeschini said. For example, while the army and police would be subject to civilian authority, there is no mention of the prerogatives of the Supreme Commander. There is also no mention of the intelligence services, with the risk that security agencies may sprout without any civilian oversight.

While the constitution provides for the creation of a High Judicial Council and a Constitutional Court as supreme courts on constitutional matters, no mention is made of their composition or mechanism of appointment. This vacuum leaves the judicial framework vulnerable to future exploitation by political groups.

The drafters, however, say the draft constitution responds to Libyans’ demands for a return to presidentialism, after years of protracted civil war and political stagnation blamed in part on the incompetence of some members of parliament.

“This constitution is a good starting point and the best possible synthesis of the expectations of Libyans across the country,” al-Musallati said.

“There can be no elections without a constitution in place, otherwise any future system of government will be considered illegitimate.”

Al-Musallati accused political factions of obstructing the draft constitution over the years for fear of overhauling existing centers of power, as envisioned in the new constitution. But she insisted that Libyans should not go to the elections without it. “If it is rejected, it will have to go back to CDA and we will have to reformulate it until it meets the expectations of the population.

But the process can take time and questions remain about the need to tie the December elections to the approval of the referendum.

It is still unclear to what extent the main Libyan political forces will support the project. They may encourage Libyans to vote against it, or they may simply refuse to comply with its provisions and delay the elections indefinitely.

“I don’t think the country can go to the elections in this context,” Fetouri said. “But the Libyans are fed up and they could just pass the referendum hoping it will help end their misery. Although public opinion seems to be against this draft constitution.

But Libyans can escape the risk of having a flawed constitution by simply following the lead of their Tunisian neighbors, Mezran said.

In the aftermath of the 2011 revolution, Tunisians voted for a Constituent Assembly of 217 members which produced a constitution considered one of the most liberal in the Arab world.

“Libyans would have to vote for a new parliament to function as a constitutional assembly that would draft the constitution. It would be accepted throughout the country because it would be the expression of the demands of the people, ”Mezran said.

On Tuesday, members of both Chambers and the High National Electoral Commission (HNEC) will meet again to discuss the threshold for the next referendum and possibly set a date. Meanwhile, February 19 is the deadline for the institutions concerned to present the constitutional basis for the holding of elections, an event which is far from certain.

About Wesley V. Finley

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