After the popular uprising in February 2011 and the fall of the Muammar Gaddafi’s rule, Libyans had the opportunity to draft a constitution for the second time in the country’s modern history. The first was in 1951, when Libya was preparing to become an independent state after 33 years of Italian colonisation and seven years under British and French administration.
Dutch diplomat Adrian Pelt was nominated by the UN in 1949 as a high commissioner for Libya, charged with overseeing the creation of an independent state from British-administered Cyrenaica and Tripolitania and French-administered Fezzan by 1952. Pelt was also to assist with the drafting of the Libyan constitution, and he proposed a drafting committee of 60 members, 20 from each of the three regions.
Libya’s constitutional history
A modern constitution setting up a monarchic federal Libya was agreed upon, and independence was officially declared on 24 December 1951. In 1963, the constitution was amended to abolish the federal system, and Libya became a unitary state with one set of political institutions, including a two-chamber parliament. The constitutional monarchy lasted only 18 years as, upon coming to power in a military coup in 1969, Gaddafi immediately abolished the constitution and all the political institutions developed since independence.
During the 42 years of Gaddafi’s autocratic rule, the Libyan population tripled from around two million to six million, and generations grew up without any awareness of constitutional and democratic culture and discourse.
Amid this backdrop, Libyans in 2014 found themselves faced with the opportunity and challenge to craft a new constitution for only the second time in 65 years. This new document would act as a social contract that lays the foundations for a new democratic political order – state-building almost from zero.
After much delay, wrangling and debate, the new transitional parliament in Libya agreed to form the Constitutional Drafting Assembly (CDA) with 60 members, 20 from each of the historical three regions, emulating what happened in 1951 – except this time, it was directly elected by the Libyan people. Elections for the CDA took place in February 2014 and its mandate was 18 months, but it took more than three years to agree on a draft constitution.
During those years, the CDA struggled amid a divided political environment and volatile security situation.
The assembly finally voted on a new draft in July 2017 with 43 votes out of 60, just over the required two-thirds majority. Some observers saw this as indicating little consensus within the drafting body itself and a first challenge to the legitimacy of the document, as some nine members from eastern Libya and five from the south boycotted the vote, claiming the draft constitution did not fairly distribute power and wealth or recognise minority rights.
The voting session did not go smoothly; gunmen threatened assembly members if they failed to adopt certain changes.
Major obstacles ahead
After the vote, some opponents of the new draft appealed to an administrative court in the eastern city of al-Bayda, which ruled that the vote was invalid because it was not held on a working day, but on a weekend holiday. But on 14 February 2018, Libya’s Supreme Court effectively quashed that decision by ruling that administrative courts do not have jurisdiction over CDA matters.
The high court ruling should, in theory, pave the way for the next stage of adopting the draft constitution: offering it to the Libyan electorate for a referendum, where a two-thirds majority would be required for the new constitution to become binding. However, major obstacles remain.
Many actors, including the United Nations Support Mission in Libya, welcomed the high court ruling as a positive step forward, asking the Tobruk-based House of Representatives to issue a referendum law for the new draft.
But 18 members of the house, mainly from eastern Libya, voiced their strong rejection, noting in a statement: “The ruling of the Supreme Court is not valid on the constitution. Therefore, we, the deputies, decided not to recognise the constitution drafting assembly.” The members, who refused to issue a referendum law, want to see a return to the federal political system of 1951.
Other parliamentarians, also mainly from the east, are trying another tactic to stop the new constitution in its tracks. They are suggesting that a referendum should not be held in the whole of the country as one constituency, but rather in individual votes among the three historical constituencies.
This, in effect, would allow a single region to veto the draft, even if the total number of “yes” voters countrywide exceeds two-thirds.
Some international observers have suggested that one way to reduce resistance to the draft constitution is for the CDA to abolish the provision that blocks any amendments for the next five years after it comes into effect, leaving it open to revisions and amendments once a new permanent parliament is in place.
Campaigners push ‘Constitution First’
The UN has recently endorsed its special envoy to Libya, Ghassan Salame, who was charged to assist the holding of elections in Libya by the end of this year. Ideally, these elections will be a culmination of the process to adopt a new modern democratic constitution in the country for the first time in decades.
Many believe that holding elections prior to adopting a new constitution would only prolong the transitional period and all the uncertainties, including political instability and armed conflict, that come with it.
A popular social media campaign in Libya using the slogan “Constitution First” has recently gained momentum, demanding that no election should be held until a new constitution is approved. Some argue that you cannot craft a constitution while a country is deeply polarised and lacking a stable security environment
On the other hand, having a minimum consensus on a new constitution will unite the overwhelming majority of Libyans around one political legitimacy, superseding all the sub-legitimacies that constitute the country’s ongoing conflict.
As another observer put it: “An approved constitution prior to election day will only strengthen the prospect that elections could pave the way to a measured resolution of Libya’s turmoil.” Regional and international consensus with a determined political will could help Libyans to achieve a constitution that would provide the framework for a new permanent, stable political order, which could be amended accordingly as the country moves forward.
However, considering the current state of Libya’s disarray, hope for elections by the end of this year is unrealistic.
The best that can be hoped for is to approve a new constitution through a referendum before the end of 2018, and to hold the first presidential and parliamentary elections based on that constitution by the end of 2019. Having a constitution after five decades will be a major milestone for Libyans and a step that deserves all the support it can get.