Leading Constitutional Lawyer Azza Maghur Evaluates the Next “Plan” for Libya – Al Marsad

One of the leading Libyan lawyers and experts on constitutional law, Azza Maghur, published an incisive article in Arabic in Al-Wasat dissecting the various issues at stake and their implications as UNSMIL pushes ahead with its own plan to cripple Libyan democracy through “selection and appointment” on behalf of Libyans. Al-Marsad publishes here the full English translation of her article.

“What our country has gone through since 2014, the deviation of the national democratic path towards the internationally sponsored path of ‘selection and appointment’ on behalf of the Libyans, the policy of imposing fait accompli through UN Security Council resolutions, and turning the national democratic legitimacy into ‘international legitimacy’ without a local and national cover based on international recognition, should be a motivation for us to learn from the previous experiences, come up with results and lessons, and avoid mistakes.”—Azza Maghur

(Libya, 27 September 2020) – I think it is important to take a quick look at the previous nascent democratic path Libyans dreamt of when they ran three general elections in a row: the General National Congress (GNC) in 2012, the Constitution Drafting Assembly (CDA) in 2014, and the Libyan House of Representatives (HoR) in 2014.

They all stemmed from the Constitutional Declaration and three electoral laws and took place under the supervision of the High National Elections Commission (HNEC). However, these steady steps faced multiple setbacks, the severest of which was in 2014 due to armed conflicts and civil wars, which not only disrupted the democratic path, but also deliberately sabotaged it.

On the other hand, the Libyans did not realize the scale of foreign interference until later, especially with the intensification of the armed conflict and the alignment of states with Libyan parties and armed groups. The United Nations (UN) has admitted such subversive role in the reports of the Panel of Experts on Libya based on Security Council Resolution No. 1973/2011. The said Panel of Experts has issued eight reports, which documented the extent of these disruptive interventions. The recent Berlin Conference also admitted this and sought to obtain pledges from the said states not to intervene. This disruptive intervention has turned Libya into a storehouse of all kinds of weapons and its skies into a testing ground of drone warfare. Libya has also seen numerous forms and types of mercenaries in the full glare of the whole world. Libya’s relatively small population does not allow for such endless wars and conflicts.

The signing ceremony of the Libyan Political Agreement in Skhirat, Morocco.

Not to mention the escalating terrorism, ISIS settlement, the exacerbation of the conditions of refugees and migrants on land and at sea, and the shady international agreements that have crippled Libya. In this way, Libya has become a regional card in the hands of several countries each of which eyes only its own gains.

Because of the impaired and weak Libyan state and the deliberate sabotage of the nascent democratic path, the UN intervened directly through its Support Mission in Libya (UNSMIL) in 2014 to appoint a new envoy with broad powers. It then started a sponsored path under the slogan of the Libyan political dialogue in Ghadames to bring together the HoR, bring its boycotters back, and activate its role. Then, this political dialogue expanded once and again by inviting multiple parties and figures all chosen by the UNSMIL, which aimed to engineer its form of government. This resulted in creating and appointing a multi-party presidential council that was supposed to take its decisions unanimously at the head of an “accord” government, which the HoR has never endorsed.

Add to this the fact that there was a legislative authority torn between two bodies, totaling 400 members. The most important chapters in that agreement were the two chapters on security measures and confidence-building procedures. The other chapter could never materialize without a conducive security situation and the provision of services to the Libyan citizens who were both afraid and hungry. However, these two important chapters, which were the litmus test of the political agreement and its institutions, were never enforced. Therefore, the Skhirat Agreement gradually cascaded into a mere distribution of powers, drowned into corruption, and was clearly unable to secure the citizens’ needs. The Libyan institutions fissured further, suffering intensified, and armed conflicts and wars have perpetuated.

Foreign interferences also increased, national civil institutions collapsed and disappeared, and the street no longer had a voice.

Foreign countries began gradually, under the UN alignment and sponsored compromises, to shape Libya’s future without effective Libyan engagement. The Libyan leaders prioritized their internal battles, sharing the country’s powers and wealth, and the struggle around these in a destructive and reprehensible manner while totally unable to provide the most basic necessities of subsistence and the needs of the exhausted Libyan citizens.

Thus, Libya has reached today a fifth transitional stage characterized by the lack of legitimacy and readiness for clay-like malleability at the hands of direct foreign interventions.

WHAT IS THE OUTLOOK?

I will address the political aspect of the next transitional phase (envisioning the regime) only, rather than the other tracks (security, military, and economic).

According to news sources and media interviews with public figures in office, the next stage will take shape through a dialogue committee that convenes abroad. This committee comprises representatives from the HoR, the High Council of State, and other figures invited by the UNSMIL. Its meeting follows many other meetings that took place in various capitals and after reaching understandings between members of the HoR, the High Council of State, and other figures. These understandings rely mainly on the following: The Skhirat Agreement, the Berlin Conference outcomes, and the Cairo Declaration.

Through the available information on the media, the outlook may be as follows:

1-The division of Libya into three regions each represented by members of the HoR and the State Council (chosen by both houses) and other figures (from the same region) selected by the UNSMIL.

2-The tripartite presidential council: the representatives of each region choose a member of a new presidential council consisting of three members from each region who will choose the president from among themselves (the selection mechanism of the president is unknown).

3-The government: it is independent from the Presidential Council. Each region chooses a deputy prime minister. The Presidential Council names the head of government who will not be from the same region as the president of the Presidential Council. The prime minister and his deputies select the members of the government. Ministries will be distributed among the regions, including the sovereign ministries rumored to be equally distributed.

4-Duration of the transitional period: 18 months, extendable for other six months.

5-During this period, a constitutional base for future elections will be established and an electoral law will be enacted

Thus, Libya is entering a new transitional phase based on a regional division and characterized by quotas. Offices will be allocated and occupied regionally. The Libyans sit at the dialogue table divided into three groups. Each group is concerned with choosing whoever represents the “region” and its interests, which will eclipse the general Libyan interest that has been the main priority since the establishment of the state of Libya.

EVALUATING THE EXPECTED PROPOSAL

This opinion is mainly an attempt to understand, stimulate discussion, prepare for the next stage, and absorb what has transpired from Bouznika, Montreux, and Cairo, and what may be prepared in the coming period. The bottom line is not the dialogue per se, but an attempt to understand, anticipate what may happen, and prepare for the future. What our country has gone through since 2014, the deviation of the national democratic path towards the internationally sponsored path of “selection and appointment” on behalf of the Libyans, the policy of imposing fait accompli through UN Security Council resolutions, and turning the national democratic legitimacy into “international legitimacy” without a local and national cover based on international recognition, should be a motivation for us to learn from the previous experiences, come up with results and lessons, and avoid mistakes.

Consultations at Montreux in Switzerland under the auspices of the Centre for Humanitarian Dialogue and in the presence of UNSMIL

More importantly, we must not go through cloned and uncalculated new political experiences and adventures that depend on adjustments and compromises lest we should relapse every time and enter one tunnel after another. However, it seems that what is expected is not that, namely it is the adoption, by direct force, of the regional quota system that will depend on regions and reinforce regionalism, tribalism and conflict. Its mechanism will be buying loyalties, relying on foreign advocacy, and exerting pressure.

NOTES

1-The starting point is not correct. There is no Libyan legislation that divides Libya into three regions. The third amendment to the Constitutional Declaration stipulated “elections” similar to the Sixty-member Committee of 1951. There is a big difference between elections and appointment. The elections rely on electoral constituencies and an electoral system in the core of electoral legislation based on “the individual, list, or other candidate” and a constitution. Appointment, as stated, relies on regional quotas based on political alignment that stems from non-national documents and declarations that have no constitutional basis.

2-The proposal is at odds with the norm in government systems. It does not even fall within the rules of the federal system, including what Libya knew historically in the 1951 Constitution before its amendment. The federal system relies on two levels, the first is state unity, which is the federal government, and the second the provincial level. In the proposed system, there is a quota division on one level that mixes the two levels. Thus, it is nothing but a pure quota system that has no basis in the customary government systems, sows differences, and fuels fragmentation of the cohesion of the state as an entity.

3-This division presupposes regional homogeneity and agreement, which is an incorrect logic. The conflict in Libya is multifaceted, the least of which is the regional strife, which is mentally simplified and divided into three regions, and the most intense is the individual struggle for power, money, weapons, or ideology. The logic of the three-region approach is a naïve simplification, which fuels the conflict. There is no real conflict between the three regions, but rather conflicts within the same regions (the South for example). Limiting the conflict between three regions is in fact opening a new front of conflict. The expectation of reaching an agreement based on the regions is an unrealistic and irrational perception. Indeed, there is a convergence between cities in the three regions that is closer than that between cities in the same region. It is also surprising that members of the HoR and the State Council, just because they are from the same region, agree on members of the executive authority while they have refused to agree with each other since 2016.

4-The triple syndrome: the idea of having a tripartite presidential council/presidency of a government consisting of a prime minister and two deputies / ministers and their deputies, will shackle executive action, sow discord, and cause administrative legal crises.

5-This quota system will inevitably lead to dissonance and disagreement among members, especially if the points set out below (participation of the parties to the current conflict / violation of the principle of conflict of interest) are not considered. Reducing the number of the Presidential Council from 6 to 3 will not be effective because it remains a multilateral council. Moreover, the fact that the prime minister does not choose his deputy or his cabinet will render the government weak. In addition, the ministries will be loyal to the region and to the presidential member who represents their region, and not to the entire Presidential Council. Thus, instead of the Presidential Council being a symbol of the country’s unity and sovereignty, it will turn into a council of regions and its interests. The ministers representing a region will follow the member of that region in the Presidential Council. In this way, the conflict will broaden and become both horizontal and vertical, which is worse than it is now. Thus, the dependency will become fissile rather than vertical and the government will lack effective management, which will weaken the prime minister and the government itself. The executive authority will enter into regional conflicts.

6-The role of the HoR and the State Council in the upcoming transitional phase and their relationship with the new Presidential Council and the government is unclear. The prescribed period of 18 months does not need this number of institutions that have been in conflict and ineffective. The next government will inevitably be an additional institution to the existing ones.

Berlin Conference

7-It would be a repetitive mistake if the members of the dialogue include those who eye executive positions. Unfortunately, this happened in the Skhirat dialogue. Should this happen, it would be ultimate corruption based on the principle of “conflict of interest.” Whoever participates in the next dialogue committee, which is a founding body for a new transitional period, must not hold any senior executive, sovereign, or administrative position at this stage, and not run for the upcoming elections.

8-Whoever heads the new presidential council or the government in the next transitional period should not run for two upcoming elections so as not to exploit his position and influence in preparing for a future election campaign or affect the upcoming electoral legislation and process.

9-It should be impermissible for the current members of the HoR, the State Council, and the Presidential Council to assume the executive authority or the sovereign or high-level administrative positions in the next transitional phase, based on the principle of conflict of interest, especially as they are part of the understandings and negotiations. They have exceeded the terms stipulated in the constituent instruments of these entities, in addition to being influential. It is unreasonable for a state representative to negotiate in his favor and to take advantage of his position and proximity to decision-making centers to obtain a position without honest and real competition that qualifies him for that.

10-The assumption of any positions by those referred to in the previous paragraph will impede the required national reconciliation. They are part of the conflict and lack commitment to the democratic path in terms of overstaying their terms of office and not handing over power. They have failed to manage their institutions and rather have contributed to dividing them further and could not mitigate the suffering of the citizens. In addition, their continuation constitutes an obstacle to uncovering the rampant corruption admitted in official national and international reports.

We have to admit that the coming picture is cloudy and unclear, especially since we do not know clearly what is happening in terms of understandings and arrangements. However, it is clear that the Libyan people and even those who announce that they may be part of the upcoming dialogue do not know much of what is happening. Their role may be weak because it will be in final phase without active participation in the arrangements for dialogue and without knowledge of its details. Therefore, this article is nothing more than an attempt to understand, open the door to discussion, anticipate what might happen, prepare for it, and avoid committing the same mistakes once again.

Source (in Arabic): Al-Wasat

 

FURTHER RESOURCES

Lawyer Azza Maghur Explains Why She Suspended Her Participation in the Geneva Talks