Two weeks after Egypt hosted Libyan peace talks in the framework of the 5+5 Joint Military Commission in Hurghada, Cairo this week played host to rival Libyan factions as they discussed the constitutional components of the political track ahead of the Libyan Political Dialogue Forum (LPDF) to be held early November in Tunisia.
The LPDF will see the first face-to-face meetings on the political dialogue track. According to sources in Cairo, Egypt will host some of the LPDF sessions which will follow up on the political, economic and military/security tracks of the UN-sponsored Libyan peace process.
The Cairo dialogue on the Libyan constitution began with a keynote speech by Abbas Kamel, the director of Egypt’s General Intelligence Service (GIS). Kamel underscored Egypt’s commitment to Libyan unity and territorial integrity, and to the UN-sponsored settlement process. Emphasising the need for a Libyan solution to the country’s crisis, he said: “The time has come to realise the Libyan people’s aspirations to stability by promoting the diplomatic option so that Libya can have a constitution that establishes powers and duties and then proceeds to hold presidential and parliamentary elections.”
Referring to the Hurghada meeting in the framework of the UN-sponsored military track, he lauded the constructive attitudes of the Libyan participants and expressed Egypt’s belief in the need “to work on all three tracks that aim to resolve the Libyan crisis in tandem so that the Libyan people can enjoy stability.”
The constitutional component of the political track has brought together delegations from the Tobruk-based Libyan House of Representatives (HoR) and the Tripoli based High Council of State (HCS). It is hoped that they will reach a consensus over holding a national referendum on the constitutional bill adopted by the Libyan Constituent Assembly in July 2017. While the HCS favours a referendum as soon as possible, the HoR has strong reservations.
According to HoR member Ziad Daghim, the HoR questions the validity of the draft constitution. He said the constitution, if passed, will be vulnerable to litigation due to a number of procedural flaws, not least being that the term of the Constituent Assembly has ended.
As though the talks are not difficult enough given a backdrop of rivalries between outside players such as Turkey and Russia, other complicating factors are impacting the political process and the envisioned elections. For example, how will it be possible to formulate and pass an electoral law regulating elections when the work of parliament has been suspended? And what of the voter database which was destroyed when terrorists attacked and set fire to the headquarters of the Libyan national election commission in 2018?
To make things worse, members of both the HoR and the HSC allege that there has been widespread national ID fraud. One source estimates that over a million national ID numbers are fake, and that most of them are in southern Libya where there is frequent cross border infiltration between Chad and Libya. Some observers fear that the Syrian mercenaries which Turkey has introduced into Libya will be camouflaged in this way.
Among the participants in the Cairo meeting on Libyan constitutional matters are members of the Constituent Assembly that was charged with drafting the constitution. While they vigorously defended the need to proceed with preparations for the referendum on the draft constitution it is noteworthy that the same individuals are also high-ranking HSC members which means that there may be a conflict of interest between their political allegiance and their work as lawmakers expected to apply their expertise objectively to constitutional matters.
This could compound the problem of legal challenges to the draft constitution. Indeed, there has already been one attempt to contest it before the Supreme Administrative Court which rejected the petition on the grounds that the case did not fall under the court’s jurisdiction. Meanwhile, the constitutional branch of the Libyan judiciary has been temporally suspended.
Members of the HoR team have raised other concerns over the draft constitution and the referendum. One involves the need for provisions to address dual nationality, which has implications for the accountability of government officials; another has to do with the heavier demographic weight of the western Tripolitania region the eastern Cyrenaica and southern Fezzan regions. HoR members argue that if the referendum (or any national electoral process) is conducted on the basis of a purely popular vote, Tripolitania will have the advantage.
Funding the referendum may no longer be a problem. Initially, the Tripoli-based Government of National Accord (GNA) expected the electoral commission to come up with the necessary funding but now the EU has offered to help with €6.7 billion to assist the commission, according to the EU ambassador to Libya.
Chances are good that participants in the constitutional dialogue will reach a consensus. For one, the outputs of the UN-sponsored process as restructured by the Berlin Conference in January, end the controversial interim arrangements introduced in accordance with the controversial Libyan agreement reached in Skhirat, Morocco, in December 2015. With the end of the “Skhirat phase”, the Constituent Assembly, the GNA, the election commission as it is currently composed, the HCS and the HoR, will cease to exist: the Libyan Political Dialogue Forum, if successful, will replace them with new governing entities and structures. This will eliminate some longstanding sources of rancour. In the short term a new Constitutional Declaration or a significantly amended version of the current Constitutional Declaration is likely to be adopted to regulate the political process.
According to the timetable for the political process mentioned during the Montreux consultative meeting in September, preparations for any elections should begin no less than six months after a political agreement is reached. This gives the interim government time to move to Sirte, which has been proposed as a neutral and centrally located interim capital. Most of the logistics should then be in place to hold elections.
*A version of this article appears in print in the 15 October, 2020 edition of Al-Ahram Weekly