REPORT: Libya’s final draft constitution – A contextual analysis
By Zaid Al-Ali, October 4, 2017
CONSTITUTIONNET: On 29 July 2017, Libya’s Constitution Drafting Assembly (CDA) achieved what many were starting to think was impossible. Over two thirds of its members, including a majority from the eastern region, approved a final draft constitution. Given the circumstances, the CDA’s achievement should not be understated: it has given new life to a transition process that many had written off altogether. There is still some uncertainty about the draft’s status, as a complaint was lodged in the Beida Appeals Court to challenge the fact that the CDA had voted on a Saturday, but many observers are confident that the draft will stand and will eventually be submitted to a referendum (as soon as security permits). Some international officials are now referring to the final draft as a ‘constitutional proposal’, in order to cement its status.
The final draft offers many surprises, particularly when compared to popular discourse on constitutional reform back in 2011: it provides for a presidential system of government, and only very limited decentralization. The reasons are obvious: after years of national dysfunction, the CDA (alongside many Libyans) has decided to prioritize peace and stability over all else. It aims to contribute to that effort by removing any uncertainty as to who will be in charge after the new constitution enters into force: the president will control government policy and will have access to a number of mechanisms to increase the likelihood that that policy will be implemented.
After everything that has happened, very few commentators will question the justification for the CDA’s choices on all of these issues. Prioritizing peace and stability in this context makes sense, and the CDA’s approach on many of these broad issues is well reasoned. If enough of the country’s political forces and communities agree to adhere to the final draft, it could lead to a better future for the country.
Libyans and external actors are right to be excited about the short-term implications of having a final draft; but they should be aware of the long-term risks that the current ‘peace-at-any-cost’ approach creates. As it stands, the final draft raises at least two important concerns that must be addressed at this early stage. The first is procedural and political in nature: because of the unusual drafting process, it is unclear to what extent Libya’s major political forces support the final draft’s content, which leaves open the possibility that they may ultimately refuse to comply. Whatever can be done to prevent that outcome should be done – and at the earliest possible opportunity. The second concern is of a substantial nature: the draft as it currently stands suffers from a number of important problems (see below). It can and should be improved in the coming period, hopefully before a referendum is organized. The president’s powers are at times too wide, which increases the chances that the country could backslide in favour of one-man rule. Nor does the draft do enough to address economic inequality, whether at an individual or at a geographical and community level; this could worsen historical grievances that have already been simmering for some time.
This contextual analysis places the final Libyan draft in its historical and regional context. It discusses both procedural and substantive issues, and reviews many (but not all) of the final draft’s sections. It does not purport to provide a comprehensive analysis, and nor does it have all the answers to the questions that it raises. It is published here in the hope that it will draw attention to the final draft’s merits and flaws, in order to assist Libyans in formulating their own opinion about the final draft. Hopefully it will also provide some useful insights for policy makers as they consider their country’s future constitutional framework.