- By Mohamed EljarhMohamed Eljarh is a writer for Foreign Policy's Democracy Lab and a non-resident fellow at the Atlantic Council's Rafik Hariri Center for the Middle East. Follow him on Twitter at @Eljarh.
After considerable and heated debate, the General National Congress (GNC), Libya’s interim legislature, has finally approved a set of ground rules for electing the members of the Constituent Assembly that will draft Libya’s new constitution. Some of the details may sound arcane, but the election law is extremely important in determining the future of Libyan democracy.
Currently, no date has been set for the elections yet. As for the actual constitution, Libya’s current legal framework stipulates that referendum should be held within four months of the Constituent Assembly’s first session.
The 60-member Constituent Assembly will be elected so that each of the three old provinces (Cyrenaica, Fezzan and Tripolitania) are equally represented; a structure identical to the country’s pre-Qaddafi constitution of 1951. Once elected, the Constituent Assembly will convene in the Cyrenaica city of El Beida, where the old parliament building is located. The GNC hopes that by hosting the assembly in El Beida, the drafting process will be less susceptible external pressure than it would be in Tripoli.
But, the long-awaited rules approved by the GNC are not at all encouraging for the constitution drafting process in Libya. The new law leaves women underrepresented in the Constituent Assembly, allocating only six seats for them; an obvious setback for gender equality in post-revolution Libya. Female members of the GNC were put under immense pressure to accept the 10 percent quota, according to Najah Salouh, a GNC member from El Beida.
Initially, women requested a 15 percent share of the seats, but that failed to materialize due to opposition from the Islamist blocs (i.e., the Martyrs bloc and the Justice and Construction bloc). This underrepresentation of women highlights a significant drop from the 17 percent allotted share of seats in last year’s elections. The liberal leaning National Forces Alliance tried to introduce alternate party lists and ensure higher representation for women, but it faced huge opposition from both the GNC and the public.
Another key issue has been the representation of Libya’s ethnic minorities (the Amazigh, Tebu, and Tuareg people). These minorities have only been allocated six seats altogether. The High Council of Libyan Amazigh have announced their intention to boycott the Constituent Assembly elections, unless their members are given veto power over issues that directly affect their heritage and rights in the constitution. The Amazigh say the six seats (two each) are merely a symbolic move that has no actual weight or power to protect and safeguard their rights and heritage which suffered from persecution under Qaddafi.
The federalists in eastern Libya are yet to make their position clear about the approved law. It’s likely that they will object to the lack of safeguards to prevent political parties from influencing the elections and subsequently the outcome of the constitution.
The representation of various interests will, of course, provide important signals about the ultimate form the Libyan constitution will take.
First, there is the issue of sharia. Many Libyans support the idea of using sharia as the basis for law, while hard-line Islamists and their sympathizers regard it as the "only source of legislation." This would have huge implications for individuals’ rights and freedoms and universal principles of human rights.
Second, the system of government needs to be decided. Federalists in eastern Libya expect a decentralized form of government to be adopted, or at least recognition of the autonomy of Cyrenaica. They favor an arrangement similar to that enjoyed by Kurdistan in Iraq. The federalists believe that the majority of Cyrenaicans support federalism — but they tend to say relatively little about the fact that the majority of the people of Tripolitania oppose the idea. Federalists are demanding that the referendum takes place in the three old regions separately, and that regional results be considered — especially if there are clear differences between the three regions.
Finally, we have the issue of the political isolation law that forced out the former GNC chairman from political participation. The new constitution could drop the isolation law in order to guarantee equality and human rights for all. However, such an approach will face strong opposition from the Islamists and militias affiliated with them, who might once again resort to the same dubious means they used to pressure the GNC into passing the controversial law.
The process of drafting a constitution in post-revolution Libya promises to be extremely complex. The institutions and procedures chosen for the constitution-making process could have a big effect on the legitimacy and longevity of the adopted constitution. Inclusiveness and consensus will be key for a successful constitution drafting process. However, the constitution-building process should not be hijacked by the need for consensus. It is crucial for the Constituent Assembly to strike that balance.
Mohamed Eljarh is the Libya blogger for Transitions. Read the rest of his posts here.