As the United Nations Support Mission in Libya (UNSMIL) organizes dialogue between the country's warring factions, many Libyans are voicing concerns that this process is a replay of the past, failed attempts to form a unity government and stop the bloodshed.
Under the U.N.-sponsored Libyan Political Agreement of 2015, the country witnessed its most chaotic period, notable primarily for its bloodshed, corruption, duplication of institutions, illegal migration and war crimes.
Other observers worry that Libya remains without a ratified constitution and are calling for adopting one before forming a government or holding elections.
These observers neglect the fact that there is no valid ratification law in Libya. The most practical way forward for Libya is to hold parliamentary elections in an incremental and controlled manner.
Only such a democratically elected parliament could limit the destructive regional influence and pave the way for a constitutional referendum.
Insight into background
Let’s back up a little and gain some historical perspective. Libya has been without a constitution since 1969 when its late leader Moammar Gadhafi abolished the constitution that was based on a historic U.N. effort led by the late Dutch diplomat, Adrian Pelt.
Sixty leading Libyan elders came together to ratify a solid, even pioneering, constitution in 1951. However, by the early 1960s, the conflict between the U.S. oil companies, the central government and the three federal regions of Tripolitania, Fezzan, and Cyrenaica revealed its shortcomings.
In 1963, Libya amended the constitution by abolishing these regions. The constitution itself was abolished in 1969, following Gadhafi's coup, and was essentially replaced by his "Green Book."
After the 2011 revolution, members of the newly formed governing organization, the National Transitional Council (NTC), especially those who still considered themselves anti-monarchy Arab nationalists, pushed for a set of principles called the Constitutional Declaration.
This declaration and its amendments are still in effect today. In 2014, an elected committee of 60 people formed the Constitution Drafting Committee (CDC).
The committee was tasked with drafting a new constitution for Libya. It took the committee three years and tens of millions of dollars to produce a draft constitution.
The draft constitution, produced in 2017 after intense disagreements, was divisive and deficient. Representatives of Tubu and Berber minorities suspended their membership in the CDC, setting the stage for rejection of the constitution. The House of Representatives (HoR), based in eastern Libya, followed up in 2018 by enacting a ratification law that almost guarantees it will not be ratified.
The problems with the draft constitution begin with the body that drafted it, the CDC itself. Although 68% of the Libyan population is concentrated in western Libya, 25% in eastern Libya and only 7% reside in the southern region, the CDC was formed with an equal representation of 20 drafters from each region.
Residents of western Libya consequently feel slighted by this composition and claim that it deprives them of proper representation. Many of them as well as members of the Berber and Tubu minorities are determined to reject any referendum on this constitution.
The proposed constitution was drafted during a deeply divisive and conflictual period, and the draft codified this discord into law. It is very telling that even the simplest of patriotic tasks such as adopting the historical flag of Libya could not be agreed upon.
Consequently, the question of the flag was shelved for a later date. In addition to failing to address the flag and many other issues typically found in modern constitutions, the draft meddled deeply and inappropriately in judicial and economic matters.
In another misguided attempt to treat the three regions equally – what we might call disproportionate representation, the branches of government were broken up and scattered throughout the vast and disjointed country.
The draft required the executive offices to be located in Tripoli, the parliament 1,000 kilometers (621 miles) away in Benghazi, and the Supreme Court was to be tucked away in the deep south, almost 900 kilometers away from other centers of government.
Inevitably, each of these centers will open satellite offices and branches to compete for influence and government jobs. Libya, again, will end up with duplicated institutions, corruption and turf wars.
Some observers contend that these technical deficiencies of the constitution, even if severe, should be accepted now and if necessary changed later.
The truth of the matter, however, is that the process proposed by the Libyan HoR for ratifying this draft is both illegal and impractical.
In a clear violation of Libya’s current Constitutional Declaration, the ratification law divides Libya into three legal regions including west, east and south.
The law further pretends that these three regions are legal corporations, hence bestowing upon them the ability to veto the constitution.
The reality is that there are no such entities as Tripolitania, Fezzan, or Cyrenaica, in the Constitutional Declaration. There are no current borders, administrative offices, or officials associated with such regions.
The ratification law relies on historical definitions that have no basis in present-day Libya.
Opponents of the constitution will challenge these artificial borders in court in the unlikely event that the draft ever passes the impossible ratification law.
Even if the proposed constitution was balanced and practical, and the ratification law satisfied legal requirements, the HoR erected another major hurdle. The ratification law requires two levels of approval.
First, each of the three regions must approve the constitution with a simple majority. Second, a two-thirds nationwide majority must also approve. This is a recipe for disaster.
Moreover, the HoR adopted the ratification law without any consultation or agreement with the High Council of State, in violation of the law.
On Dec. 13, 2018, the HCS informed the Libya Elections Commission that it had rejected the ratification law and considered it in violation of the Constitutional Declaration.
It is, therefore, obvious that even if the constitution is ratified, it will immediately be beset by legal challenges, rendering any putative ratification toothless.
In a country as deeply divided as Libya, and which is so skeptical of the CDC and its draft proposal, it is difficult not to conclude that the HoR never wanted this constitution to pass, the HoR – or at least its constituent members – considers elections and a new constitution as a threat to its continued existence.
Current picture
Libya now faces two obstacles to peace, security and democracy. First, the UNSMIL is again sponsoring talks among the same people who waged war and pillaged the country and tasking them to form another unity government.
History is repeating itself – and we are all familiar with the saying about tragedy and farce. As with the Government of National Accord (GNA) that the UNSMIL formed in 2015, any such unity government that forms inside the U.N.'s smoke-filled rooms will lack popular support, have no accountability and will be focused on extending the transitional period for many years to come.
The other obstacle is the twofold issue of the draft constitution and the ratification law. The UNSMIL path and the new constitution path will prove to be catastrophic and destabilizing.
So far we have discussed what will not work. How, then, to move forward? The answer is incremental elections. This type of electoral strategy starts in regions that are ready for the process and extends as permitted across the country.
If the strategy of the HoR is to preserve the stalemate by promoting an impossible constitution, then there is no alternative to holding elections, incremental elections to be specific, to create a new parliament.
Only such a parliament can elect a government and lay the groundwork for a constitution and for ratification. Under normal circumstances, a constitution would be ratified before elections, but in today’s Libya holding a referendum on the constitution will prove impractical and highly litigious.
The U.N. process has allowed the same spoilers and their international backers to control yet another transitional period with no guarantees for ending it.
There are no perfect solutions for Libya. There are trade-offs. With elections, Libya can move forward and bypass the familiar pitfalls that have plagued it to date and achieve the transparent kind of democracy it deserves.
*Libyan political analyst and human rights advocate