Libya’s draft constitution and the stalled political process

Sunday 06/08/2017

Almost two weeks after French Presi­dent Emmanuel Macron hosted the two major players in Libya’s conflict, the situation in the country indicates that its crisis is no closer to a resolution.

During the meeting outside Paris, Prime Minister of Libya’s UN-backed government Fayez al-Sarraj and Field Marshal Khalifa Haftar agreed to a ceasefire and to work through a political process to have presi­dential and parliamentary elections as soon as possible.

However, it quickly became clear that the plan outlined in the agreement is unlikely to come to fruition. Haftar appeared dis­missive of elections and, given that the ceasefire does not apply to counterterrorism operations, Haftar, who views his enemies as terrorists, is unlikely to cease his military campaign to take the country by force.

The recent approval of a new draft constitution by the Consti­tutional Drafting Assembly (CDA) further complicates the situation. The CDA was formed in 2014 with an 18-month mandate and tasked with drafting a constitution for Libya. However, the assembly faced difficulties due to political unrest and security threats. The recently approved constitution is therefore long overdue and its path forward is anything but clear.

The approval of a new constitu­tion faces challenges that are tied not just to technical and capacity problems but to the struggle for power in Libya. The first chal­lenge is its legitimacy given the way it was passed by the CDA. Only 44 of the 60 members in the assembly attended the session to vote on the constitution, indicat­ing little consensus within the drafting body itself.

The United Nations praised the CDA for the vote, calling it “the first milestone” on the path towards a national referendum to approve the constitution. In reality, acclaim for the 43-1 vote in favour of the draft ignores a worrying lack of consensus among the drafting body.

The vote was not seamless. Armed protesters stormed the committee’s session in Bayda and forced the CDA to issue a revised draft constitution, reportedly to remove any stipulations that would prevent Haftar from running for president in future elections.

Yet before any election, the constitutional draft must be put to a referendum, which cannot happen without approval from the eastern-based House of Representatives (HoR). The High National Election Commission (HNEC) needs the HoR to pass a law to organise a referendum, which, in theory, should happen within 30 days of the CDA’s approval of a new draft constitu­tion.

However, the HoR has little incentive to approve the draft and issue a law allowing for the organ­isation of a referendum. HoR President Aguila Saleh supports Haftar and his forces in the east and would rather buy time for Haftar to continue his push towards Tripoli.

After emerging victorious in the long fight to take the city of Benghazi, Haftar is setting his sights on Derna as he works to solidify control over eastern Libya. Haftar’s Libyan National Army has also begun pushing into the western town of Sabratha.

By refusing to vote on the CDA’s draft and not passing a law that would allow the referendum, the HoR can give Haftar time to expand his military operations and consolidate authority by force rather than hold himself to a political process.

The HNEC is plagued by technical barriers. In interviews after the CDA vote, HNEC indi­cated eagerness to move forward with a referendum, although the head of the electoral body noted that it lacks the funds to do so.

HNEC Chairman Emad al-Sayeh said HNEC does not have the budget to evaluate polling stations across Libya, provide necessary materials in voting locations, fully register all Libyans or ensure security in unstable areas. HNEC also said that it required more than the prescribed 30 days to organise a referendum.

Sayeh said HNEC would need at least four months to organise elections and conduct the necessary voter education to ensure a nominal level of partici­pation. HNEC cannot begin these steps until the HoR passes a law allowing the referendum to move forward.

It remains to be seen whether the meeting in France will have positive effects in Libya and how the CDA’s approval of a new draft constitution will affect the political process as it barely inches forward.

Haftar and his camp have little reason to get behind the CDA and the HNEC. He has garnered significant international legiti­macy because of the meeting in France without making any real concessions to Sarraj or the UN-backed negotiation process.

Should Haftar decide he wants to participate in elections, he will likely do so outside of a constitu­tional framework, preferring to emerge victorious in elections before putting a revised draft preferable to his interests to vote.

The fragmented political process in Libya will continue to limp on but it is unlikely, at least in the near term, to deliver any consensus or progress.