The Middle East Channel

Libya’s constitutional balancing act

The day-to-day priority in Libya has rightly been placed upon determining the future of the young, mostly civilian revolutionary fighters who rose up to overthrow the Qaddafi regime. But what is imperative in the long term is the political contest to define the structure and power relationships of the new state through the writing of ...

JOSEPH EID/AFP/Getty Images
JOSEPH EID/AFP/Getty Images

The day-to-day priority in Libya has rightly been placed upon determining the future of the young, mostly civilian revolutionary fighters who rose up to overthrow the Qaddafi regime. But what is imperative in the long term is the political contest to define the structure and power relationships of the new state through the writing of Libya’s permanent constitution that will take place next year. Last month the interim government established an electoral committee charged with setting the formula to elect the drafters of Libya’s new national charter. It now bears the heavy responsibility of specifying how votes and participation in Libya’s first genuine elections in over a half-century will be translated into seats and representation in its constitutional assembly.

This is a potentially pivotal question for Libya’s political transition. Events in neighboring Egypt have already shown that a breakdown in the perceived legitimacy of the supervision over the transition to a new constitutional order can bring revolutionaries back out into the street en masse. Likewise, Libya’s own historical experience suggests that the manner in which a constitutional assembly is chosen can sow the seeds for future contention if the process is seen to predetermine answers to some of the country’s most sensitive debates.

From the very beginning Libya’s 17th of February Revolution was more fraught and violent than those next door in Egypt and Tunisia. Muammar al-Qaddafi’s idiosyncratic rule subverted Libyan institutions to such an extent that all distinction was eroded between the state and the regime. Unlike in Egypt or Tunisia, the Libyan Army did not have a separate corporate standing that it could hope to salvage by siding with the protestors. Rather, the Qaddafi regime’s overthrow was only accomplished through its military defeat by a collection of municipally and even neighborhood-level organized militias (supported by a NATO air campaign and a big financial boost from Qatar and the Gulf).

The remarkable bottom-up nature of the revolution has had obvious consequences for Libya’s current situation, as illustrated by the multitude of revolutionary brigades who openly jockeyed for influence in the forming of the interim government. More subtly though, it has also stirred historical regionalist tendencies in Libya. Strong local identities in cities like Benghazi, Misrata, Zintan and other major towns are now increasingly interwoven with a narrative of who suffered the most under Qaddafi, who sacrificed the most in fighting him, and, by extension, who is entitled to the fruits of the new order.

This is a sensitive debate in a country where local loyalties, pan-Arabism, and membership in the global Islamic community of the faithful have often counted for more than a sense of common Libyan national identity. Under the Ottoman rule, Libya consisted of the three wilayets (states) of Tripolitania, Cyrenaica, and Fezzan, roughly corresponding to the country’s current west, east, and south. Geographically separated by Libya’s vast and foreboding desert expanses, the three regions developed distinct social and political structures.

Given this history, the National Transitional Council (NTC) that spearheaded the 17th of February Revolution strategically presented itself as a national movement. Headquartered in Benghazi, the capital of Libya’s east, it repeatedly emphasized that victory would not be declared until the west was liberated, that Tripoli would remain the national capital, and that it would not be satisfied with a regional enclave (nor by implication that it was the successor to the autonomous emirate of Cyrenaica that popped up on multiple occasions in eastern Libya during resistance to Italian colonial occupation last century).

After the fall of Tripoli in late August, liberation was declared in Benghazi on October 23 and the NTC formally began the process of relocating to Tripoli. The council’s own westward move has been followed by much of the international community and media. As the oxygen of governance and global attention has shifted to Tripoli, old feelings in Libya’s east of inequality and marginalization have resurfaced. Many emphasize that they fought the revolution not just to overthrow Qaddafi, but also to replace the mindset of dictatorial centralization they see as the linchpin of his 42-year reign. Street protests in Benghazi earlier this week complaining that the city is being forgotten, and the swift response of the NTC to name Benghazi as Libya’s economic capital, demonstrate how much of a livewire issue this is.

Which brings us back to the election of the 200-person National Public Conference that will draft the constitution. With an estimated two-thirds of Libya’s six million people living in western Libya, the east and south argue that an electoral formula exacted purely on population-based proportional representation could result in a conference capable of writing and passing a constitution without their consent. At least in the east, there is real concern that this could result in a centralized system of government. As a result, nascent political movements in the east and south of Libya have begun calling for a geographically defined system of electoral districts, where each district would have the same number of representatives in the constitutional conference regardless of population size.

Tripoli and the west understandably have a different point of view. They have also seen how this played out before, and it did not end well. In 1951, the provisional National Assembly that drafted Libya’s independence constitution may have been appointed rather than elected, but it faced the same dilemma. Then, as now, Tripolitania in the west possessed approximately two-thirds of the population and favored a more centralized state. Its representatives unsuccessfully argued that the 60-member transitional assembly should mirror the country’s population distribution.

Instead the regions of Cyrenaica in the east and Fezzan in the south managed to persuade the U.N. Commissioner overseeing preparations for Libya’s independence that each of the three regions should have 20 representatives in the assembly despite major differences in their population sizes. This choice of representation formula proved far-reaching. Cyrenaica and Fezzan were both advocates for federalism and as a result of the decision had a clear majority in the provisional assembly. In essence, before pen was put to paper on the 1951 Constitution, it was already effectively determined that the newly independent Libyan state would be a federal monarchy.

The representation decision was also not without controversy or long-term consequence. Pro-centralization political parties from the west repeatedly attempted to reopen the representation debate during the preparation of the constitution and protested in Tripoli after Libya’s first parliamentary elections in 1952. The new pro-federal Sannusi monarchy seated in Benghazi responded to the demonstrations by banning political parties, a prohibition which Qaddafi and the young officers maintained after their 1969 military coup. Some six decades later, the 1952 polls remain Libya’s only multi-party elections.

Moreover, historians now argue that the loose federal structure hampered Libya’s efforts to consolidate the formal institutions of a nation-state. Indeed, substantial revision to the constitution was soon required after its regionally oriented taxation scheme proved unable to cope with the massive inflow of oil revenue that began in the early 1960s. And for that matter, oil remains the elephant in the room in Libya’s still not quite out in the open regionalism debate. It is also easy to see why given that the sector generates over 60 percent of Libya’s GDP and 90 percent of government revenue. Moreover, the petro-fueled public sector dominates the Libyan economy and is by far the country’s largest employer. With the majority of Libya’s proven oil reserves and its largest export and refining facilities found in the east, there is fear elsewhere in the country that a decentralization of oil revenue could hollow out the national government.

This cautionary historical tale and display of the complexity of the choices Libya now faces suggests that it will be important for the NTC’s newly appointed electoral committee to devise an electoral representation formula which does not sideline either Libya’s populous and urban west, its oil rich and traditionally autonomy-minded east, nor its oft overlooked south. Fortunately, the constitutional declaration that guides Libya’s transition primarily concerns itself with timelines for completing the permanent charter. It does not prescribe detailed rules for how the constitution should be adopted, leaving room for creative solutions that could promote balanced representation.

The most direct option would be to tackle the representation conundrum head-on using a sliding scale. Under this approach all constituencies would receive a baseline number of representatives in the constitutional conference regardless of their population size, with constituencies above a certain population threshold receiving additional seats. The aim would be to produce a formula somewhere in between pure population based representation and equal geographic representation.

Alternatively, there could be an upfront political agreement aimed at ensuring broad consensus on the constitutional text. For example, a super-majority of two-thirds could be required to pass the draft constitution through the National Public Conference. A similar option would be to focus on the stage of the constitutional referendum. In this scenario the constitution would not only have to receive a two-thirds majority nationwide as currently specified by the constitutional declaration, but also be endorsed by voters in a minimum number of provinces.

In future elections, Libyans could consider an electoral system for their parliament that rewards political movements and electoral alliances that win votes from across the country rather than those whose support is concentrated in one area or region.

In the end it is paramount to recall that these are sovereign Libyan decisions. The international community can only offer technical advice and options to accomplish the objectives that the Libyans themselves set. But respect for Libyan ownership of the transition does not preclude pointing out warning signs in the post-liberation dynamic.

In this vein, fears in parts of Libya that Qaddafi’s marginalization of the periphery might reemerge is leading to vocal demands for decentralization to ensure justice and equality between Libya’s regions. If the new constitutional assembly is not seen across Libya as representative, its ability to act as a forum to constructively hold the decentralization debate could be circumscribed. Likewise, currently limited support for fringe groups such as the proto-federalism movement in the east calling for turning the clock back to the monarchy era could grow.

After decades of living under an idiosyncratic regime that deliberately pursued a policy of divide and rule to maintain its grip on power, many ordinary Libyans rose up last February to fight for a free and united Libya. Ensuring balanced representation in next year’s constitutional conference could now prove an important step toward realizing this aspiration by forestalling any potential for a harmful regional divide to emerge in the new Libya.

Sean Kane is a Truman Security Fellow and the Deputy Team Leader for Libya at the Centre for Humanitarian Dialogue, an independent mediation organization supporting dialogue in Libya. This article represents his personal views.

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