Libya’s Constituent Assembly – also known as Constitution Drafting Assembly or CDA – presented the second draft of Libya’s new Constitution last Wednesday but recent reports of internal dissent and resignations suggest members are still a long way from agreeing on a final text. The draft was elaborated by an internal committee called the Working Group, which the CDA entrusted with this task to speed up the process after numerous missed deadlines.
“We completed our work on the second draft after receiving 78 suggestions,” Mohamed al-Badri – head of the Working Group – said Wednesday at a press conference in the eastern town of Bayda, where the Assembly is based.
Key articles of the draft Constitution were published on the Working Group’s Facebook page. A key symbolic change in the latest draft is that Libya shall have three capitals for each of Libya’s three historical provinces – a political one in Tripoli, and economic one in Benghazi and a cultural one in Sebha. The draft Constitution devises a presidential ruling system where the president is elected in general elections in addition to a legislative chamber – the Council of Deputies – and a consultative chamber – the Elders Council. The Council of Deputies will be based in Tripoli while the (72-member) Elders Council will be in Libya’s second city of Benghazi – decentralizing decision-making and empowering both sides of the country. Political parties will be dissolved for a duration of four years from the passing of the Constitution, and lawmakers will be elected on an individual basis. Other new sovereign institutions are the Supreme Judicial Council (to be based in Tripoli) and the Supreme Council of Local Governance (based in Sebha). The draft says that the system will be one of “extended decentralization” and that a special fund will help develop previously neglected regions.
The CDA must now discuss and vote on the new draft by March 24, its latest deadline set by the signatories of the Libyan Political Agreement.
“I believe the draft is balanced and tries to reach a consensus”, said CDA member Ibrahim al-Baba in Libya Channel’s evening program Newsroom on Wednesday. Other TV guests were more critical. “The CDA made a big mistake by [delegating] its work to subcommittees because this created a set of articles that do not match the regions”, said lawyer Sami al-Atrash. “I can’t see in these constitution drafts any inclusion of key topics like international law, or sovereignty, or citizenship in Libya”, Atrash added.
While Salah Abukhazam commented that problems lay in the voting mechanism. “The issue is with the CDA voting on constitutional articles [one by one]. This was the problem when they tried to vote on the first draft,” he told.
The CDA was elected in February 2014 – before the civil war erupted in Libya – and was meant to finalize the Constitution within four months of its first meeting, as per the 2011 Constitutional Declaration. But given the turmoil in the country, it has repeatedly been granted extensions.
From the start the Assembly’s 58 members – 20 from each of the three provinces minus 2 vacant seats – have been at odds over core issues, such as citizenship, national identity, distribution of resources or where sovereign institutions should be located.
In particular, western and eastern CDA members disagree on the issue of the capital, with many easterners demanding two capitals for Libya, as in the 1951 Constitution, and that the legislature be located in Benghazi.
The other main problem has been the dealing with minority issues. Libya’s three “cultural components”, as the Amazigh, Tebu and Tuareg are officially referred to, were each granted two “quota seats” on the CDA, but failed to obtain a veto power on articles pertaining to national identity (name and identity of the State, flag, anthem, language rights), which they had demanded. After Amazigh representatives called for a boycott of the elections, two of the six minority seats remained empty and the community has not taken part in the constitution drafting process altogether.
The CDA published a draft of core provisions in December 2014 but subsequently failed to bring the disparate positions together. To speed up the process a 12-member committee was formed in June 2015 to finalize the drafting process on behalf of the plenary. The so-called Working Group was initially meant to complete its task within one month but only started its work at the end of July and did not present the first draft Constitution until October.
Meanwhile, the CDA’s Tebu and Tuareg members had decided to join the Amazigh in their boycott and suspended their membership in the CDA. The four CDA members had already protested against the setup of the Working Group in late June. In a joint statement on August 19, they accused the CDA of excluding them from the Working Group and contradicting the Constitutional Declaration according to which a compromise must be found with the minorities.
Hoping to meet its new deadline of October 20 (the day the HoR’s initial mandate expired), the CDA moved to the western city of Ghadames at the start of October to discuss and vote on the Working Group’s draft. But the Ghadames sessions were suspended after less than the required two thirds of the Assembly members showed up. The momentum lost, CDA members instead reopened the debate on controversial articles.
Also in October, the CDA set up a three-member committee to reach out to the minorities and bring them back into the fold. According to Khaled Wahli, one of the two Tebu boycotters, this initiative failed to produce any results for lack of serious commitment on the part of the CDA.
There have also been tensions regarding the CDA leadership. Last November, a number of Assembly members demanded that President Ali Tarhuni resign, accusing him of running a “one-man show”.
According to the Libyan Political Agreement that members of the GNC and the HoR signed in Morocco on December 17, the CDA must complete its work by 24 March 2016. “In case the Assembly is not able to conclude its mission by that date, a committee consisting of five representatives from each of the House of Representatives and the State Council with the participation of the Presidency Council of the Council of Ministers, shall be formed at a date that does not exceed two weeks of that date to deliberate regarding this matter”, the LPA states. But given the uncertainties surrounding the LPA and its implementation, it is not sure whether the new institutions will be in a position to enforce this deadline.
The CDA clearly is subject to a lot of pressure, not only from the UN and Libya’s rival legislatures, but also from the Municipal Council of Bayda, which last month threatened to throw the CDA out if they did not finish by March 24. The Municipal Council also gave the (Interim) Government a 24-hour deadline to pack its bags, but later revoked the decision after tribal mediation. Built up frustration with the lack of progress and public services had triggered protests in the eastern Libyan town.
Up until last week the CDA seemed to be on the verge of disintegration.
On January 18, two Working Group members from western Libya Salem Kashlaf and Abdelbasset al-Naas – resigned, primarily in protest over “federalist inclinations”. It was then reported that the Working Group had frozen its work. But the Working Group decided to move ahead despite the resignations and last week presented the draft Constitution with only ten members present.
On January 28, eleven more CDA members resigned declaring that the CDA was “insisting on dividing Libya” through regional quotas and needed to “correct its path”.
Minority representatives reiterated their objections to the draft Constitution. On January 30, the Supreme Amazigh Council – a political body elected in August in towns with an Amazigh majority – and the Amazigh CDA boycotters, as well as their Tebu and Tuareg colleagues, jointly declared “We will not recognize any Constitution that is not agreed upon by all of Libya’s sons – the Tebu, Tuareg, Amazigh and Arabs”.
The group also critizised the UN mission to Libya of marginalizing the minorities in the political dialogue process and in particular UN Envoy Martin Kobler for having described Libya as an “Arab nation”. Finally, they announced the formation of a coordination group representing their collective interest.
The CDA’s press conference to present the second draft on February 3 – announced on January 31 – was likely a response to the acceleration of events undermining it. In an interview with Libya Channel, CDA President Ali Tarhuni acknowledged that the Assembly had “faced difficulties” citing as example that it had not so far succeeded in accommodating the demands of the so-called cultural components.
Bringing the boycotters back in is crucial for the CDA to agree on a final text without alienating a significant part of the population. Martin Kobler has called on the boycotters to reconsider their decision. Popular frustration with the slow drafting process means that the CDA has lost much credibility and may not be granted yet another extension after March. Unsurprisingly, there are increasing calls in Libya to bring back the federalist 1951 Constitution (or its amended version of 1963, which reverted to more centralism) as temporary solution.