Libya’s long awaited constitution: Will it finally see the light of the day?

Despite efforts to address the demands of divergent groups, the latest draft constitution of Libya risks disenchanting all. With the March 24 deadline approaching, the future of the Libyan constitution making process remains uncertain. A term extension could allow the CDA to engage in a genuinely participatory, inclusive, and transparent constitution making process – writes Ibrahim.  

On 3 February 2016, Libya’s Constitution Drafting Assembly (CDA) – which was elected in 2014 to draft Libya’s Constitution – announced the completion of a new draft constitution – a revised version of an earlier draft released in October 2015. The latest draft was prepared by a Working Committee (WC) of the CDA formed in June 2015 from amongst its members, and will be reviewed in a plenary session of the CDA. If approved by more than two-thirds of the total membership of the CDA, the draft will be put to a public referendum.  If accepted by two-thirds of the voters, the document will be issued as Libya’s first permanent constitution since Gaddafi’s coup in 1969. It is unlikely that the CDA will meet the latest deadline (24 March 2016) for producing the draft set in the United Nations brokered political agreement. 

The WC is a 12 member body, equally divided between Libya’s three historical regions. Because of lack of representation for the Tabu and the Tuareg in the WC, they boycotted the CDA, and described the formation of the WC as a deliberate attempt to undermine “fundamental components of the constitutional process, and clear [pre] determination of the milestones of the upcoming constitution that does not represent the rights of all Libyans.” Considering that the CDA was already boycotted by the Amazigh minority, who refused to join due to the few number of seats offered (two from each of the three minority groups), the withdrawal of representatives of the Tabu and the Tuareg worsened the CDA’s representation and inclusiveness challenges.  To make matters worse, on 28 January 2016, eleven members of the CDA, predominately representing the western region, accused the CDA of “insisting on dividing Libya” through regional quotas and boycotted its proceedings. 

The working modalities of the WC also concerned other CDA members who voiced their disapproval. In particular, the WC worked in complete secrecy, leaving the general public, and even other CDA members, without knowledge of its activities until it formally presented a draft for the approval of the CDA. The WC, some CDA members said, should have focused on reviewing the chapters prepared by the Technical Committees of the CDA in December 2014, identifying the provisions on which there is consensus, and proposing discussions on controversial ones. Instead, the WC started drafting new provisions all over again as if it were a new CDA.  

The October Draft: Strengthening the presidency and the role of Islam

In October 2015, the WC announced its first draft. It included 211 articles divided into twelve chapters addressing various issues. The Committee opted for a role of Sharia in law-making stronger than that envisaged in the draft prepared by the Technical Committees. The draft recognised Islam as the religion of the state, and Islamic Sharia as the source of legislation and the basis upon which “the provisions of the constitution are to be interpreted and restricted.” The WC also proposed the establishment of a Council of [religious] Senior Scholars (CSS), an autonomous constitutional institution composed of fifteen experts chosen by parliament, among others, to advise state authorities on religious aspects of public affairs, to provide Sharia-based opinions, and to conduct religious inquiries to address emerging and current problems. The opinions of the CSS are advisory, and there is no specific obligation on state authorities to seek them. Still, it would be difficult to imagine a state authority ignoring religious fatwas issued by the CSS.

The October draft recognised languages spoken by a part of the Libyan people as “national” languages and part of Libya’s cultural and linguistic heritage, while retaining Arabic as the only “official” language.  The Technical Committee on the Form of State had failed to reach consensus on the status of minority languages, and presented two alternative proposals: one granting them the status of national languages, and another (suggested by minorities’ representatives) considering them official languages alongside Arabic.

To address other issues of identity, the WC proposed that a preamble, to be written by the CDA as a whole, should deal with identity and its religious, cultural, linguistic and geographic dimensions, along with a brief narrative on Libya’s three historical regions.

The October draft provided for a strong executive headed by a popularly elected president. The president would choose a prime minister with no requirement to do so from within the party or coalition of parties with the majority of seats in the House of Representatives. The president would also have the authority to approve or reject the cabinet proposed by the prime minister. The proposal of the Technical Committees that the House of Representatives would have to give a vote of confidence to the cabinet was not included in the October draft. Nevertheless, the House could dismiss cabinet through a vote of no confidence. The WC’s draft appears to respond to the demands of the majority of Libyans for the establishment of a strong executive authority.

The WC also devoted a chapter to local governance. Although it did not opt for federalism, it recognizes the “principle of extended decentralisation.” In addition to municipalities (baladiyat), the levels of local governance would include provinces (wilayat), a term associated with the federal system, with a distinct legal personality and independent financial base. Still, the central authorities would exercise great powers over these decentralised entities. In particular, the national legislature retained the power of constituting local government entities based on broad and imprecise criteria.

The October draft emphasised the monopoly of the state in the formation of the army and police forces, and made it unlawful for non-state actors to form military or para-military units. It also underlined the subordination of the army to civilian authority, and its obligation to abstain from interference in political life. Additionally, the army was forbidden from undermining the constitutional system and state institutions, or from otherwise hindering their activities, or limiting rights and liberties. Notably, the draft required the state to disarm all military organisations, and to rehabilitate their members psychologically and professionally.

The draft did not please many. The United Nations Support Mission in Libya (UNSMIL) expressed its reservations on the draft. In its view, the draft contained provisions that were contradictory to international standards and Libyan laws, and others that were incompatible with international best practices, or are otherwise difficult to implement in Libya. For example, the draft provided for a strict interpretation of Sharia; discriminated against Libyan women married to foreigners by not allowing them, like Libyan men, to pass on their nationality to their children; did not establish a quota for women in political posts; and was vague on important details concerning local governance.

Similarly, members of the CDA publicly criticised the draft. Abdualmuniam al-Fakhri, Head of the Technical Committee on Independent Constitutional Institutions, argued that the draft “neglects political and ideological consensus, and excludes women, youth, media professionals, liberals, and proponents of the Gaddafi regime.” He also argued that as envisaged in the draft, the role of Sharia in law-making would open the door to “dark interpretations” and could be used “to infringe on rights and liberties”. Daw Mansouri, Head of the Technical Committee on the Judiciary, also noted that the WC worked as “if it was a masonic lodge acting in complete secrecy”, thereby disassociating himself from the draft.

The February Draft: Controversies continue 

On 27 December 2015, the WC resumed its work, and on 3 February 2016 published a revised draft after receiving a number of suggestions. The latest draft indicates that the WC attempted to address criticisms of the October draft and to accommodate the divergent demands of the various groups. Nevertheless, the February draft introduces provisions that are likely to further deepen concerns of both minority groups and those opposed to “regional allocation.” For example, the draft declares Libya a part of the Arab world, which might raise the concerns of non-Arab Libyans. Individuals opposed to regional allocation will be angered by proposals for the establishment of three capitals and the geographical distribution of the seats of important institutions: Tripoli will be the seat of the executive; Benghazi will host the legislative body; and the constitutional court will sit in Sabha. The February draft also retained the proposed composition of the Elders Council, which will have 72 members elected based on regional allocation. Indeed, on 5 March, the boycotters disapproved the draft, and conditioned their return to the CDA on discarding the draft.

The provisions in the October draft relating to Sharia are largely retained. Nevertheless, the February draft has removed the requirement that provisions of the constitution are restricted by the Sharia. The draft also replaces the CSS with the Council for Sharí (religious) Research with fewer powers to conduct research on public issues of religious nature. The advisory nature of the recommendations is also underscored.  

The February draft introduces notable changes concerning the rights of women. While women are still unable to pass their Libyan nationality to their children, the state is obliged to take necessary measures to protect the rights they already enjoy under existing laws. It also guarantees equality of opportunity for male and female citizens. There is no doubt that women can run for the presidency of the republic, or other offices. Notably, unlike the October draft, the February draft guarantees women a quota of not less than 25% in all elected councils for three consecutive terms. This appears to be a compromise between those who wanted a quota in all public offices, such as UNSMIL, and those opposed to it, such as the Fatwa Council (Dar el-Ifta). 

With a view to appease those against federalism, the February draft replaces the term wilayat (provinces) with muhafadat (governorates), and provides less detail on the powers of local governance units. It also establishes a high council for local governance with the power to propose and provide opinions on draft laws related to local governance, to enhance coordination and collaboration between local governance units, and between the units and the national government, and to resolve disputes between the units.

Looking forward 

In a press conference held on 3 February to announce the latest draft, Tarhouni noted that it is now up to the CDA as a whole to decide on the February draft, and called on all members, including representatives of the minority groups and the eleven members boycotting the CDA, to attend the sessions to finalise the draft constitution. The eleven boycotters are concerned with what they claim is an undue emphasis on regional considerations in the CDA’s composition and the draft constitution, noting “the CDA has diverged from its goal of building a national constitution that unites the Libyans instead of dividing them; even the unity of Libya has been questioned by some of the WC’s members …”

Tarhouni’s call did not yield the desired result. In fact, his own membership and chairmanship of the CDA is in doubt.  On 15 February, one of the eleven members, Daw Mansouri, succeeded in getting a court verdict effectively suspending Tarhouni from the CDA. The claim is that by becoming a US citizen, Tarhouni lost his Libyan nationality, and so cannot be a CDA member, let alone be its chairman. The Baida Appellate Court has not decided on the substance of the case yet, but as a precautionary measure, it decided to suspend the decision of the High Commission for Elections approving Tarhouni as a CDA member, and the decision of the CDA approving him as its chairman.  

This will clearly worsen the CDA’s challenges, and raise serious questions on its ability to produce the draft constitution. Indeed, in a meeting held on 23 February, the CDA failed to make the necessary quorum, and some of the attendants questioned whether the WC’s latest draft should be the basis for the CDA’s work. Getting rid of this “illegal” draft, as some of the boycotters described it, is a precondition for them re-joining the CDA. The CDA is also locked in a debate on where to meet, with the latest meetings held in Oman. Representatives of the Tuareg and Tebu reportedly attended these latest meetings, although they have not officially ended their boycott.

Considering these challenges, the CDA is unlikely to meet the 24 March deadline. Libya’s long wait for a permanent constitution continues. The lapse of the deadline raises questions on the future of the CDA and the Libyan constitution making process. The implementation of the UN brokered political agreement could rescue the process. The agreement calls for the establishment of a committee composed of members from both the House of Representatives and the State Council, with the participation of the Presidential Council, to deliberate on the future of Libya’s constitution. Although the committee may extend the CDA’s mandate, the fate of the constitution making process remains uncertain. While an extension will cause further delay, it will also allow the CDA to engage in a participatory, inclusive, and transparent constitution making process potentially contributing to Libya’s transition to a stable constitutional democracy.

Suliman Ibrahim is Assistant Professor of Law, Benghazi University, and a Senior Researcher
at the Van Vollenhoven Institute for Law, Governance and Development, Leiden University.