On February 14, Libya’s Supreme Court rejected a ruling by the Bayda court of appeals against the Constitutional Drafting Assembly’s (CDA) July 2017 vote to approve a draft constitution, which ended up stuck in legal limbo.
The Supreme Court’s decision thereby paves the way for a constitutional referendum and future parliamentary and presidential elections. This appears to advance the action plan that UN Special Representative to Libya Ghassan Salamé announced in September 2017, the product of two months of consultation with various Libyan and international stakeholders. He was adamant that the plan was the product of Libyan ideas and aspirations to resolve the unpredictability and inherent instability of the country’s prolonged transitional period. This distinguished him from his predecessors and allowed him, as well as the UN Support Mission in Libya (UNSMIL), to move away from the open-ended policy of promoting unity talks, which had not made any meaningful progress since they began in 2014. Yet this plan faces numerous obstacles, particularly from entrenched political elites who see Salame’s action plan as just another venue in which to seek personal gain.
The action-plan itself was presented, perhaps optimistically, as a clear path toward a constitutional state. First the Libyan Political Agreement (LPA) that provides the legal framework for the current political landscape would be amended based on agreements between the Tobruk-based House of Representatives (HoR)—the internationally recognized elected legislature—and the Tripoli-based High Council of State (HCS), a consultative body. This would facilitate a functioning executive branch that could both stabilize the country by confronting some of the more immediate crises and implement the rest of the action plan. This would be followed by a national conference bringing together Libyan stakeholders from across the political spectrum in order to unify Libya’s political, economic, and security actors behind the legal changes and minimize the chances that they choose to play spoilers. Only after the conference would the HoR then focus on drafting the electoral laws to hold a constitutional referendum and new presidential and parliamentary elections.
While most Libyans agree with Salamé that Libya’s crises require solutions from Libyans, he underestimated the difficulty of getting political figures to implement these solutions. Troublingly, Libyan and international actors alike are increasingly focusing on the eventual elections as a means of bypassing these obstacles—an approach that risks mimicking the Government of National Accord (GNA), which was rushed into place before being fully agreed on. As such, the HoR objected to it and never ratified it, and the GNA spent two years as an ineffectual executive branch that many Libyans rejected as a UN imposition.
Although the technical components of Salamé’s approach to Libya were sound, the action plan most notably failed to understand the political status quo that has blocked substantive progress for six years. Political elites see the transition itself as a zero-sum competition that offers complete control over Libya. They maintain power by controlling territory and resources, which brings international legitimacy and the ability to buy the loyalty of local communities. Yet these dominant political actors have little effective national leadership, given they operate in ever smaller circles and have dwindling direct influence with the population. Moreover, they have no reason to enact Salamé’s action plan, which seeks to end the very status quo in which they are invested, instead cynically using it as a vehicle to raise their own status.
This simplistic realpolitik is evident in the attempts to approve constitutional amendments, for example. Salamé tried to expedite the LPA negotiations by offering up pre-drafted amendments—based on informal agreements reached in previous negotiations—to be approved by the HoR and HCS. These amendments included shrinking the size of the unwieldy Presidency Council from nine to three members and putting military institutions under the Presidency Council’s civilian oversight. Meanwhile the HoR, which had been increasingly marginalized, would become the legislature of a fully functioning political system, with powers of executive oversight. Agila Saleh, president of the HoR, swiftly organized a vote on November 21 approving these amendments, overcoming the institution’s usual problems of reaching quorum by chartering a flight to bring parliamentarians to and from Tobruk just for the vote.
However, the HCS, and more specifically its president, Abdurrahman al-Swehli, blocked the progression of these amendments on November 24, releasing a statement rejecting the proposal against the wishes of the rest of HCS in a cynical attempt to leverage the situation for personal gain. He demanded that the HCS share equal powers with the HoR as a prerequisite for approving them, and introduced new, tangential demands such as that Libya end Egypt’s involvement in parallel military unification talks. Moreover, in September he tried to launch his own transition initiative separate from Salamé’s action plan and on December 27 announced the HCS had approved a constitutional referendum law. Although such a law is beyond the purview of the HCS, it is intended to redirect the conversation away from the stalled LPA amendments and toward future elections.
Swelhi’s push to put together a constitutional referendum law also allows the HCS to one-up the HoR, which has been obstructing the process of finalizing a new constitution. Agila Saleh, fearing that elections within a constitutional Libya would limit his power as president of the HoR, has long opposed the Constitutional Drafting Assembly (CDA), itself a key component in the action plan’s success. When the CDA approved a draft constitution in July 2017, the HoR was supposed to pass a referendum law within 30 days. However, on August 16 the Bayda appeals court invalidated the CDA’s vote to approve the draft on procedural grounds. After the CDA challenged this ruling, on February 14 the Tripoli-based Supreme Court overturned it, claiming that an administrative court does not have the jurisdiction to rule on matters involving the CDA. Although the CDA has managed to have its vote recognized, it could still find itself directly challenged in the Supreme Court. Moreover, Saleh has the capacity to obstruct the progress of the constitution, as he demonstrated on February 20, when eighteen parliamentarians from eastern Libya released a statement claiming that they do not consider the Supreme Court’s ruling valid and they will refuse to issue a referendum law.
While some political actors stymie the technical steps of Salamé’s action plan, others attempt to pervert the end product. Field Marshal Khalifa Haftar is attempting to both expedite and control upcoming presidential elections. Although he remains outside Libya’s transitional political structure, he has forced himself into relevance over the past three years by taking military control over most of eastern Libya and the majority of Libya’s oil terminals. However, he can neither conquer the rest of the country nor maintain his control over the factions which comprise his “Libyan National Army,” so he agreed to the concept of elections as a means to advance from military leader to president, as Egypt’s Abdel Fattah el-Sisi did. Since then, he has tried to take control over the electoral process, repeatedly accusing the High National Elections Commission of being “infested” by the Muslim Brotherhood and demanding they relocate to the eastern city of Tobruk. In a televised speech on December 17, he claimed that the LPA’s mandate had expired and that therefore his self-proclaimed Libyan National Army was the only remaining legitimate institution. Attempting to avoid the civilian oversight and constitutional limitations the action plan would likely bring, he claimed that he would no longer listen to the international community, only to the Libyan people. As these ruses failed to bring the institutions planning and overseeing the elections under his control, he ominously claimed in a February interview with Jeune Afrique that he would be forced to seize full military control of the country if elections failed to bring a satisfactory solution.
With the action plan stalling on all fronts, Salamé is being confronted with the reality that he will need to change his approach to succeed in Libya. The support of the international community could give him the time and resources to envision a way to counter the vested interests blocking reform. This could entail, for example, finding new interlocutors who can effect change, for although the current politicians have nominal power, their influence, legal mandates, and institutional control are weak. By pursuing local reconciliation and preparing an executive action plan to stabilize the economy they can provide something for Libyans to rally around and begin reducing the value of the status quo for many of the political actors. Moreover, Libyans have a growing and tangible frustration toward the status quo, which can be harnessed to build momentum and pressure institutions to be more functional. Salame’s appointment, the presence of a constitutional draft, and a popular will for change together present a rare yet unpolished opportunity to reverse Libya’s post-revolutionary descent into a failed state and regional source of instability. If it is squandered, it is unclear when the next such opportunity will come to pass.