Azza Maghur: Libya’s Next President Will Only Be Elected Via the Ballot Boxes – Al Marsad

Libya’s leading constitutional lawyer and member of the Libyan Council for Human Rights, Azza Maghur, published an article this weekend in Arabic in Al-Wasat detailing the reasons why the new President of Libya can only be selected via direct elections through the ballot box by the public on 24 December 2021. Maghur said: “‘let everyone compete’ based on democratic means in managing political competition, accepting the principle of peaceful transfer of power, adhering to the rules of integrity and transparency in elections, and acknowledging their results as stated literally in the Roadmap.”

(LIBYA, 23 May 2021) – Libya’s leading constitutional lawyer, Azza Maghur, argues that the issue of electing the President directly by the people has already been settled constitutionally, and the Libyan Political Dialogue Forum (LPDF) cannot amend or reconsider it. AlMarsad publishes here an exclusive English translation of her full essay.

LIBYA’S NEXT PRESIDENT WILL ONLY BE ELECTED VIA THE BALLOT BOXES
by Dr. Azza Maghur, Libyan Constitutional Expert

Libya’s next President will only come through the ballot boxes for the following reasons:

(1) The issue of the general election is already settled constitutionally:  According to the Sixth Amendment of the Constitutional Declaration which stipulated that “within the month of February 2014, the General National Congress (GNC) shall form a Committee to draft a Constitutional Amendment for Presidential and Parliamentary elections, provided that such committee concludes its work within 30 days from its date of formation. An election law shall be drafted based on this amendment.” Paragraph (12), Item (b) further stated that in case it will not be possible to draft a constitution, “the GNC shall implement the Constitutional Amendment and the Election Law issued by the February Commission in May 2014.”

This means that the February Commission is a constitutional committee, and its outputs are constitutional, and that the General National Congress (GNC) has entrusted it with the task of producing one constitutional amendment for one Presidential and Parliamentary elections, and that the task of the GNC was to adopt this amendment and put it into effect as it is.

This is what the February Commission decided, in response to the task entrusted to it, by stipulating in Article No. (43) of the February Commission Proposals’ document that “the President shall be elected for the transitional period by public, direct, free, and secret ballot with absolute majority of the casted votes. This shall be held simultaneously with holding the elections of the House of Representatives.”

This legal argument was formidably consolidated with the issuance of the Eighth Amendment to the Constitutional Declaration by the House of Representatives in August 2014, which confirmed the election of the President, in accordance with the February Commission’s document and Resolution No. (5) of 2014 issued by the House of Representatives, with regard to adopting a provision relating to the election of an interim Head of State. Accordingly, the issue of electing the President directly by the people has already been settled constitutionally, and the Libyan Political Dialogue Forum (LPDF) cannot amend or reconsider it.

(2) The outputs of the Berlin Conference approved by UN Security Council Resolution No. (2510) of 2020:

Paragraph No. (2) of the outcomes of the Berlin Conference, under the Chapter entitled Return of the Political Process, states the following:

“We urge all Libyan parties to resume the inclusive Libyan-led and Libyan-owned political process under the auspices of UNSMIL, engaging in it constructively, paving the way to end the transitional period through free, fair, inclusive and credible Presidential and Parliamentary elections organized by an independent and effective High National Elections Commission (HNEC).” Describing the elections, in the Berlin document, as free, fair, inclusive, and credible means that they must be conducted through direct voting by the people.

The crucial point in this text is the indication that these Presidential and Parliamentary elections will be organized by the HNEC, the body entrusted only with the process of organizing general elections by the people, in accordance with Article No. (30) of the Constitutional Declaration which states that “the High National Elections Commission (HNEC) shall conduct the public elections under the supervision of the national Judicial Authority, the United Nations and the international and regional organizations,” and also in accordance with Law No. (8) of 2013 on the establishment of the HNEC, specifically Article No. (3) that detailed the general electoral process by the people. In other words, by simply stipulating that these Presidential and Parliamentary elections are organized by the HNEC means that they are public and direct elections by the people in accordance with Libyan legislations.

To say otherwise is a transgression and deviation from the relevant texts, and a violation of the right to vote entrenched in national legislations and democratic systems. Rather, it is corrupting and damaging to the democratization process in the country; pushing it back into the fray of violence.

(3) The Roadmap for the Preparatory Phase of a Comprehensive Solution:

The date of 24 December 2021, set for the upcoming Presidential and Parliamentary elections, was stipulated in the Roadmap document that was issued in November 2020 by the LPDF under the supervision of the UNSMIL.

This document, signed by the Forum’s parties and accepted by the de facto authorities, states in Article No. (1) that, “the overarching objective of the Preparatory Phase is to strengthen the political legitimacy through Presidential and Parliamentary elections on a constitutional basis.” The document also states that the Preparatory Phase for a Comprehensive Solution shall end, within a maximum period of eighteen (18) months, with “the holding of Presidential and Parliamentary elections, in accordance with the constitutional process, on 24 December 2021.”

In fact, both texts linked the presidential and parliamentary elections together and made them closely related to the same date, which is 24 December, 2021. The two texts also placed the Presidential elections in order before the Parliamentary one. This logically means that the international will and the parties to the document have moved towards the same goal, which is that the elections should be held simultaneously on the same date. This certainly means that they are general elections by the people. Consequently, it is inconceivable that presidential elections will be preceded by a legislative body that has not yet been elected, or that it is a body that chooses its president before holding its sessions.

Moreover, the Roadmap affirmed the inevitability of the deadlines set forth in its document, including the date of holding elections on 24 December 2021. The document also affirmed that fulfilment of obligations must be according to the scheduled dates, as stipulated in Article No (3) C, entitled Commitments and Deadlines, and thus “all state institutions shall work to fulfil their obligations on schedule and they shall be held accountable for their work before the Libyan people.”

The imperative and mandatory prerequisite of strictly complying with the specific date of 24 December 2021 is further confirmed in another document issued by the LPDF, in the chapter pertaining to the Executive Authority (the Presidential Council and the Government of National Unity) in which the Executive Authority is obligated to hold the next Presidential and Parliamentary elections on December 24, 2021, as stated in the following text: “the unified Executive Authority emanating from the Libyan Political Dialogue Forum (LPDF) is obligated to organize Presidential and Parliamentary elections on the date specified in the Roadmap for the Preparatory Phase of a Comprehensive Solution.”

Needless to say, the United Nations Support Mission to Libya (UNSMIL) used the expression of a “selection mechanism of a unified executive authority” specifically for the incumbent interim Presidential Council and the Government of National Unity during the voting process that was conducted last January which lasted for two days. It is clear that there is a fundamental difference between a selection mechanism and the electoral process.

Therefore, the bottom-line is that the presidential and legislative elections will take place simultaneously on the same day, on 24 December 2021, and that the two elections, with this correlation and connection, are linked to the same date and constitute a commitment before the Libyan people that must be honored and completely fulfilled on the same date. The date for holding the upcoming Presidential and Parliamentary elections has been fixed and cannot be undone.

(4) The post-Roadmap document UN Security Council Resolutions:

The UN Security Council Resolutions, subsequent to the Roadmap, confirm our affirmation of holding direct general presidential and parliamentary elections in the country as follows:

(a) Resolution 2570 (2021), adopted by the UN Security Council, referred to holding (national) Presidential and Parliamentary elections on 24 December 2021 as set out in the Roadmap, which means (general), and that both elections shall take place on one day on the same date (24 December 2021), and that a constitutional rule and an election law shall be established for them. It is recognized that the election law is designed for an integrated electoral process and not for a selection mechanism. Furthermore, this resolution stressed that the Presidential and Parliamentary electoral process shall be organized by the HNEC, which confirms the aforementioned.

(b) The Security Council resolution stressed that the Government of National Unity, which it described as interim, must take the necessary preparatory work to conduct “free, fair and inclusive national Presidential and Parliamentary elections on 24 December 2021,” which are the descriptions of general elections conducted through the ballot boxes. It also confirms that the presidential and parliamentary elections are not separate, and that they are held simultaneously on the same date.

(c) It is important to note that this resolution issued by the UN Security Council obligated the United Nations Support Mission to Libya (UNSMIL) to play its role “to provide support to the Libyan transition process, including the organization of elections,” which the resolution linked to the same date (24 December 2021). This means that the UNSMIL, according to this resolution, is responsible and guarantor of holding the Presidential and Parliamentary electoral process and is entrusted with it. Consequently, the UNSMIL must comply with all documents issued by it, or under its supervision and auspices, and the decisions of the UN Security Council, and not to be dragged into extraneous demands by some parties that are not related to these documents.

(d) In addition, the Statement by the President of the Security Council on Libya, on 12 March 2021 which clearly called on the interim GNU “to make the necessary preparations for free and fair national Presidential and Parliamentary elections on 24 December 2021 including arrangements to ensure the full, equal and meaningful participation of women.” This explicitly means that they are general elections, so that the full and equal participation of half of the society (the women component of the society) in the presidential elections confirms, unequivocally, that the elections will be via direct suffrage by the people.

(5) Definition of the Term “Elections” in National Legislation:

The term “elections” is a legal term that can only have one meaning, which is direct general elections, through Libyan legislation, as follows:

Constitutional Declaration: The word “selection” was used when the members of the Constitution Drafting Assembly (CDA) were selected from the General National Congress (GNC), and then the word “election” was used with the issuance of the Third Amendment, which got the members of the CDA elected according to general elections by the people. Also, Law No. (4) of 2012 on electing the GNC stipulated, in Article No. (3), that “elections shall be free, direct, secret, transparent and public in conformity with adopted international standards.”

Election in Law No. 14 of 2014, Article No. (4): “Elections shall be free, public, and direct.”

As per Article No. (3), Law No. (10) of 2014: “Elections shall be public, free, direct, secret and transparent.”

Based on the above-mentioned data, it is quite evident that the term “elections” is a legal term associated with direct and general voting, and it has no other interpretation. All of these were electoral processes that were organized, administered, and supervised by the High National Elections Commission (HNEC).

The Proposal Submitted by the Legal Committee of the Libyan Political Dialogue Forum (LPDF): The proposal made by the LPDF-emanated Legal Committee shows that this committee, while abandoning its commitment and constitutional gains, fell into the trap of political accommodation and violated the contractual will of the LPDF parties who committed themselves to it before the Libyan people and the international community at the Berlin Conference, and deviated from the determinants and documents reached by the Forum. This is to be expected as long as most of those in the committee are not legal professionals. This committee deviated from the context of its founding document (the Roadmap). Rather, it went even further by addressing the constitutional issue, leaping over the will of the Libyans.

What was required of this committee was to develop a proposal for the constitutional rule on which simultaneous “Presidential and Parliamentary” elections would be held on 24 December 2021, which is a matter of drafting a formulation that rigidly adheres to the Roadmap and its inevitable deadlines, and not to depart from the Roadmap track, by presenting two equal options that have no basis for choice nor selection in it. Rather, it should adhere to the event of direct Presidential and Parliamentary general elections on the specific date of 24 December 2021, and to formulate a constitutional basis for that; not adding anything that deviates from its mission stipulated in the Roadmap, which is to formulate the commitment related to the election date, and not to develop consensual political solutions outside the Roadmap document.

Nevertheless, if there is another will that some parties seek to impose on the Libyan people and deny them their legitimate right to cast their votes in free, public, fair, and direct elections guaranteed by the Constitutional Declaration, enforceable legislations, and international conventions, or the dissolution of obligations that the said committee must fulfil—this constitutes an impediment to the democratization process, and falls within the scope of the sanctions stipulated by the UN Security Council Resolution 2571 of the year 2021 issued on April 16, 2021 against individuals and entities that “obstruct or undermine the successful completion of its political transition.”

Accordingly, the current stage is the stage of “elections” and not the stage of “selections” and “bargaining.” It is the critical stage associated with the specific date of 24 December 2021, by which all entities will have their mandate ended, including the incumbent interim executive authority of the Presidential Council and the Government of National Unity entrusted with adhering to the same date and working with the supreme goal of preparing for these elections.

The work of the Libyan Political Dialogue Forum (LPDF) is restricted under the Roadmap to two points:

Therefore, and based on the above-mentioned reasons, the next President of Libya will only be elected by the Libyan people directly through the ballot boxes. He will assume his position as Head of State as a result of a general, inclusive, fair and transparent electoral process with the participation of all Libyans who are entitled to vote. The High National Elections Commission will organize it on 24 December 2021, with national and international monitoring, that restores balance to the ailing governance system, and where Libyans do away, forever, with long-lasting miserable bodies with expired tenure and mandate. The slogan of the stage will be “let everyone compete” based on democratic means in managing political

  • The date of holding simultaneous Presidential and Parliamentary elections on December 24, 2021.
  • LPDF legal measures are temporary. According to Article No. (7), Item No. (4), the LPDF rules shall be “a temporary legal measure. Its provisions should not be considered a principle or an established custom.”

Therefore, and based on the above-mentioned reasons, the next President of Libya will only be elected by the Libyan people directly through the ballot boxes. He will assume his position as Head of State as a result of a general, inclusive, fair and transparent electoral process with the participation of all Libyans who are entitled to vote. The High National Elections Commission will organize it on December 24, 2021, with national and international monitoring, that restores balance to the ailing governance system, and where Libyans do away, forever, with long-lasting miserable bodies with expired tenure and mandate.

The slogan of the stage will be “let everyone compete” based on democratic means in managing political competition, accepting the principle of peaceful transfer of power, adhering to the rules of integrity and transparency in elections, and acknowledging their results as stated literally in the Roadmap—which some of the LPDF members and some elements in the de facto authorities violated after they accepted the document of the Roadmap and pledged to respect its provisions.

The international community and the United Nations Support Mission to Libya, which pledged, according to the outcomes of the Berlin Conference, the subsequent documents and decisions of the UN Security Council, and the statements issued by world powers, to be up to their obligations and responsibilities towards the Libyan people and their legitimate right to cast their votes in a direct, transparent and fair general Presidential and Parliamentary electoral process to be conducted simultaneously on 24 December 2021.

© ALMARSAD ENGLISH (2021)

FURTHER LINKS

Azza Maghur | Commentary on the Statement by the LPDF Legal Committee of 23 March

Statement by Political Movements Demand Follow Up to Ensure Direct Elections Are Held on 24 December

EXCLUSIVE | Azza Maghur: The Next Presidential Council and the Powers of the New Regime in Libya

Azza Maghur: Five Issues Threaten Transitional Phase, Political Agreement Cannot Disregard Military and Economic Tracks