Libya’s draft constitution
Can the drafters of the country’s first post-Qaddafi charter rescue Libya from itself?
As Libya tips further into chaos, the continuing work of its Constitution Drafting Assembly (CDA) represents one of the last hopes of this country’s shattered transition. Elected in a national ballot in February 2014, the assembly is tasked with writing Libya’s first post-Qaddafi constitution and the country’s first since 1951. But with Libya showing many signs of falling into what might be a protracted civil war, the CDA has taken on an even greater significance. Most of Libya’s fledgling state institutions have been torn apart in the political power struggle that has engulfed the country since August 2014. With competing claims to legitimacy made by rival governments in Tripoli and eastern Libya, the CDA is one of a handful of institutions whose legitimacy is largely uncontested. As such, the CDA is ideally placed to help steer Libya back onto the transitional path after a year of conflict.
During Muammar Qaddafi ’s 42 years in power, Libya had no formal constitution. Finding constitutional solutions to the country’s myriad challenges, the prickliest of which include managing oil wealth, decentralisation, the role of religion and minority rights, will be no easy task. The CDA’s path has not been smooth: just under 500,000 of Libya’s 3.4m eligible voters took part in the assembly elections, raising questions from the outset about its legitimacy and the document it was commissioned to draft. Boycotts by the Amazigh and Tebu minorities along with security problems on polling day left empty 13 of the CDA’s 60 seats, which are divided equally between the three historic regions of Tripolitania, Cyrenaica and Fezzan. Eight of these were later filled in additional ballots. Ali Tarhouni, a liberal-leaning economist who lived in the United States for many years, was selected by his fellow members to head the CDA.
Having begun its deliberations in late April 2014, the assembly is now well past the 120-day time limit it was granted to present a draft constitution to parliament and then have it put up for a public referendum. The CDA is based in the eastern town of Baida, also the seat of Prime Minister Abdullah al-Thinni’s internationally recognised government. Competing parliaments and the public are watching its moves. The bitter polarisation that has seeped into Libyan society over the past year has also affected the CDA, with members divided into the different camps in the broader political crisis. The CDA must deal with two major issues: sharia (Islamic) law and decentralisation. Under Colonel Qaddafi , official documents declared Libya an Islamic nation and the Maliki school of Sunni Islam informed much legislation, with sharia governing most personal status matters.
There is a broad consensus in Libya that sharia should remain a reference point. But debate has raged since 2011 whether it should be the only source, the principal source, or one of many sources for laws in post-Qaddafi Libya. As of September 2013, 44% of Libyans want sharia to be the main source of legislation in the constitution while 25% want it to be the only source, according to a public opinion survey published in November 2013 by the National Democratic Institute, an American think-tank. The parliament elected in 2012 adopted a law that made sharia the basis of all legislation, which could limit the CDA’s room for manoeuvre on the matter. Furthermore, several armed groups, including the UN-designated terrorist organisation Ansar al-Sharia, have made it clear they will accept only sharia as the source of legislation. The question of decentralisation and the related issue of how to share oil resources is possibly even more fraught.
Since 2012 a federalist movement has grown in eastern Libya, demanding greater autonomy for the region following decades of marginalisation under Colonel Qaddafi . The movement includes militant currents and has inspired similar sentiment in Libya’s south. It has prompted tensions with those who see federalism as a possible pathway to the state’s disintegration. More separatist-minded elements have gained ground in recent months, seeing opportunity in the country’s crisis. According to an October 2013 University of Benghazi poll, only 8% of all Libyans surveyed and 15% of people in eastern Libya favour a federal state over a unitary state. There is, however, considerable support for a more decentralised style of government, in which regions would have their ministries based in Tripoli. This would make sense in a country with Libya’s geography—where the majority of the population is confined to urban centres strung along its lengthy northern coastline, with smaller towns in the vast interior and south.
Linked to this is the question of how to distribute oil revenues. Oil accounts for 80% of Libya’s GDP. The country’s oil fields are located primarily in the east. This has bolstered demands by vocal if not necessarily representative interest groups in this region, some armed, for federalism and even independence. The University of Benghazi survey found that 60% of Libyans favour a system where all oil revenues go directly to the central government, which then distributes to the regions. Sharing revenues is a sensitive issue. For now, it is unclear how or if the CDA will address it. Some in Libya believe that reaching consensus on these issues would be easier if the 1951 constitution were used as a basis. That document created a federal constitutional monarchy that granted considerable authority to the three historical provinces. It divided the federal government into three branches and shared power with the provincial governments. But a 1963 constitutional amendment repealed the federal nature of post-independence Libya.
The 1951 constitution is touted by more moderate federalists and those nostalgic for what they believe was a golden age under King Idris, whom Colonel Qaddafi ousted in his 1969 coup. Others argue that the 1951 constitution, while an important frame of reference, was suited to a different era and a very different Libya. Given Libya’s unravelling over the past year, much is riding on the assembly. It is unlikely to produce a document that pleases everyone. But the process could set an example in overcoming differences through negotiation and consensus. If it fails, however, the powers of the patchwork of militias that have undermined Libya’s fragile transition may become even more entrenched. Without a legitimate constitution, the country will remain locked in the zero sum politics that has defined the post-Qaddafi period.
