Libya: Constitutional conundrum

Ahmed Eleiba , Wednesday 20 Apr 2022

Consultations between Libyan parties in Cairo have yet to establish common ground.

Libya parliament
A file picture of the Libyan parliament in session in Tobruk, Libya, March 15, 2021. (AP)


This week, delegations from the Libyan House of Representatives and the High Council of State concluded a first round of consultations in Cairo on the constitutional track. The only thing they agreed was to meet again.

While the House of Representatives (HoR) delegation said it was in Cairo to discuss reopening the constitutional bill, adopted by the Constituent Assembly several years ago but amended by the Transitional Constitutional Declaration (TCD) which the HoR passed in February, the High Council of State (HCS) insisted its delegation had come to Cairo to discuss a constitutional framework for elections, not the draft constitution.

The amendment called for the creation of a committee of 24 experts drawn equally from Libya’s three main regions, Tripolitania, Cyrenaica and Fezzan, and charged it with drafting a new constitution. The HCS opposed the amendment when it was first proposed in 2011 as a basis for governing the country during the transitional period.

 It is hoped that the two sides will resolve their differences during the next round of consultations, be held in Cairo and scheduled for the second week in May. HoR Speaker Aguila Saleh, and HCS Speaker Khaled Al-Mishri, hold the keys to a compromise and are likely to meet before then, though this has yet to be confirmed.

A source familiar with the consultations told Al-Ahram Weekly that Egypt kept out of the debate on the grounds that the two most immediate stakeholders were the only ones capable of resolving the stand-off. Some HCS members feel Cairo may have taken its observer status too literally. It should have asserted more pressure on the two sides to reach an agreement, they told the Weekly.

Four points form the substance of the current dialogue. The first, advocated by the HoR, proposes revising many provisions of the draft constitution using the mechanism introduced in the TCD amendment. This process could take up to 14 months once all sides agree to launch it. The resultant draft would be put to a referendum. If it fails the first time, it would be amended and then put to a vote again. If it fails the second time, a new constitutional declaration would be issued.

The second point, espoused by the HCS, proceeds from stage three of the first, and calls for a framework for elections with the force of constitutional law.

A third view, urged the Presidency Council headed by Mohamed Al-Manfi, is to issue a constitutional declaration, which is the Presidency Council’s prerogative under a state of emergency. Cairo is thought to have advised against this, arguing that the HoR and HCS should be given a chance to resolve their differences first.

The fourth view, which may be an option of last resort, proposes that UN advisor Stephanie Williams reconstitute the parties engaged in the current political process and launch a new political process.

The current impasse in the Libyan crisis is complex, with differences over the constitution only one facet of the problem. In addition to the controversial amendment to the TCD calling for a 14-month long roadmap to a redrafted constitutional bill, a constitutional referendum and general elections, the HoR has adopted a bill to amend the executive authority. In February, the HoR also designated former interior minister Fathi Bashagha as prime minister. He quickly presented a slate of ministers to parliament for a vote of confidence.

The HCS rejected the move on the grounds that it violated the principle of consensus, and the text and spirit of the 2015 Skhirat agreement. The HoR then opened other cans of worms, including Saleh’s decision to reconstitute the Supreme Judicial Council at a time when the constitutional circuit of the Supreme Court remains suspended. There have also been rumours that Saleh is seeking to restore the powers of the supreme commander of the Armed Forces. The combination of his influence over the courts, army and legislature would give him virtually unlimited powers.

HoR members accuse their counterparts in the HCS of obstructionism. They point to a previous round in this track, hosted by Egypt in Hurghada last year, during which the HCS insisted on redrafting the constitutional bill and holding a constitutional referendum before elections, and opposed the constitutional basis for elections adopted by the HoR. Now these are HoR positions, however, the HCS has taken the opposite tack, and is insisting on a constitutional framework for elections to be held this summer while opposing the redrafting of the constitutional bill.

Evidently, neither side has been able to muster the political will needed to resolve the constitutional dilemma and end this interim phase syndrome, The HoR believes it launched a new interim phase with its actions in February, claiming that the previous one had ended with the failure to hold elections on 24 December 2021. Other parties, including the UN, maintain that the interim phase that was launched last year has been extended until the end of June, which is when they envision the holding general elections.

 By introducing a new interim phase the HoR extended its own existence as well as that of the HCS. The parliament was elected in 2014, while the HCS, a rebranded version of the General National Congress that was elected in 2012, is older. According to many Libyan sources, the Libyan public is fed up with these political elites constantly perpetuating themselves. This helps explain the unprecedented numbers of Libyans who have applied for voter registration cards.

Given the impasse between the HoR and HCS, the fact that they met face-to-face in Cairo can be seen as an achievement. That said, Cairo and other concerned parties remain worried by the rift in the 5+5 Joint Military Commission (JMC) after the five representatives from the eastern general command suspended their participation in protest against Prime Minister Abdel-Hamid Al-Dabeiba’s refusal to hand over power to the new government of Prime Minister Fathi Bashagha.

Tensions are mounting in western Libya for the same reason: Bashagha and Dabeiba hail not only from the west but from the same town, Misrata, the commercial capital and “kingmaker” in western Libya. While the main western-based militias are wary of an alliance between former foes, Bashagha and Field Marshal Khalifa Haftar, for fear that this would jeopardise their interests, they have also tried to keep a distance from the rivalry between Bashagha and Al-Dabeiba. The largest militias in Misrata, Zawiya and Zintan have released a joint statement to this effect, indicating they are keen to avert an armed clash that could spiral out of control.

International pressure has also helped reign in escalatory trends, and contributed to the adversaries meeting across the negotiating table. International stakeholders still wield a number of trump cards, including the threat of sanctions and asset freezes.

*A version of this article appears in print in the 21 April, 2022 edition of Al-Ahram Weekly.

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