One Step Closer to a New Libyan Constitution

On Sept. 23, Libya’s High National Election Commission (HNEC) finally announced that the registration for candidates of the Constituent Assembly, which will be in charge of drafting the country’s constitution, will start by mid-October. This is a clear sign that Libya is pushing ahead with its constitution-drafting process despite mounting pressure on both the political and security fronts. Still, the way ahead remains murky.

The United Nations Mission in Libya has welcomed and praised the continued efforts of the Libyan authorities, and has been stressing the importance of the constitutional process. But over the past year, Nuri Elabbar, the head of HNEC, has been unable to confirm exact dates for the Constituent Assembly elections due to technical problems with the national ID database. Meanwhile, the constitutional process in Libya has been hindered by the political struggle between different groups and the deteriorating security situation throughout the country. The intensifying polarization and struggle for power, which have led different political factions to exploit the security situation to their own ends, have created an environment that is hardly conducive to the urgent task of drafting a new constitution. Even more daunting is the fact that the mandate of the General National Congress (GNC), the interim legislature, is set to expire on Feb. 8, 2014, which leaves the country facing a potential power vacuum. It’s clear that Libya will be hard-pressed to stick to the guidelines outlined in the Constitutional Declaration, the transitional roadmap adopted by the revolutionary government in May 2011.

The fact that the HNEC has announced elections for the Constituent Assembly is certainly a good thing — but this was supposed to happen more than seven months ago, according to the Constitutional Declaration. As the GNC gets even further behind on its work, some politicians have been arguing that the GNC mandate should be extended for another year. They argue that the legislature was mandated to complete certain tasks regardless of how much time it takes. In this reading, the mandate will end only once a new constitution is ratified.

Libya’s most powerful political players have realized for a while that the current political roadmap is at risk, and that they must devise alternative approaches to avoid a complete collapse of the country’s democratic transition. Indeed, the country is running out of time to rethink its roadmap. The way I see it, there are only three realistic ways this might play out:

In the first scenario, the GNC would have to extend its mandate by at least one more year to oversee the election of the Constituent Assembly and the drafting process. Once the constitution is ratified by the people in a referendum, new elections would be held based on the system outlined in the country’s constitution.

Because this scenario involves extending the GNC’s mandate, however, major political forces are opposed to such an approach. The National Forces Alliance (NFA), founded by the wartime Prime Minister Mahmoud Jibril, completely rejected the idea of extending GNC’s mandate in a statement they issued few days ago. In fact, it is anticipated that a large segment of the population is opposed to extending the GNC’s mandate in any way, due to what many perceive as its failure to stick to deadlines and its preoccupation with scoring pointless political points, thus exacerbating political polarization.

The second scenario would see the GNC handing over its mandate to the Constituent Assembly, which would give the new legislative body the responsibility of drafting the constitution. It’s possible, however, that the Constituent Assembly might get so caught up in other legislative affairs that it could neglect the drafting process and cause them to miss the deadline, just as the GNC did. Consequently, this approach could prolong Libya’s transition and undermine the entire democratic process in post-revolution Libya, further diminishing the people’s trust in democracy.

The third scenario would include amending the pre-Qaddafi constitution (known as the 1951 Constitution) and putting it up for a referendum on the same day the Constituent Assembly is elected. Once Libyans ratify the amended constitution, presidential elections could be held within three to five months. The Constituent Assembly’s task would change from drafting a constitution from scratch to enhancing the existing constitution that would be ratified by the Libyan people. The three main political parties within the GNC — the NFA, the National Front Party, and the Justice and Construction Party (aka the Muslim Brotherhood) — have all endorsed, or at least allowed, this approach. Even the federalists in Cyrenaica, who currently control the country’s largest oil terminals, would welcome this initiative, since the adoption of the 1951 Constitution has been one of their long-standing demands. In fact, simply amending the 1951 Constitution seems to be the most unifying approach in the otherwise politically polarized Libya.

Former deputy Prime Minister Mustafa Abu Shagur announced his own initiative in Tripoli on Sept. 25. The initiative calls for the GNC to amend the current Constitutional Declaration to add another transitional phase allowing for presidential and parliamentary elections by March 2014. This would ensure that the GNC’s mandate is not extended, and it would give the Constituent Assembly up to 27 months to draft a new constitution for the country. Yet this initiative does not have the backing of any major political parties or groups in Libya, and it is highly likely that the federalists in Cyrenaica would oppose this initiative, since it still involves drafting a constitution from scratch. For any initiative of this kind to succeed, it must respond to the demands of the different influential groups in post-revolution Libya. It must also deal with the real issues on the ground that are causing instability and violence.

All the main political groups agree that the GNC’s mandate should not be extended, but they have yet to concur on how to prevent an institutional and constitutional vacuum. So far, a return to the 1951 Constitution with amendments (the third scenario) seems to be the most plausible approach.

Mohamed Eljarh is the Libya blogger for Transitions. Read the rest of his blog posts here.