With Libya preparing to hold elections in December this year, concerns related to their legal framework threaten the whole process and raise questions about the effectiveness of ensuring Libya’s stability in the short and long term. Emad El Sayeh, the head of the High National Election Commission (HNEC), announced on November 7 that the schedule for presidential elections was set with the poll taking place on December 24, while no specific date has been set yet for legislative polls. Candidates for the legislative elections were given a month from November 8 to register, while presidential elections registration is open until November 22. So far, 10 candidates have submitted their candidacy for the presidential elections, among them Saif El Islam Gaddafi—Muammar Gaddafi’s elder son who is wanted by the International Criminal Court for crimes against humanity—and military commander of the Libyan National Army (LNA) Khalifa Haftar.
The post-Gaddafi transition in Libya since 2011 was rocky. It reached its peak in June 2014 when a new round of elections fueled already-existing tensions between the House of Representatives (HoR) and the Tripoli-based General National Congress (GNC). In July 2012, Libyans had been called to elect the GNC as the first parliamentary body chosen through a “mixed” system, then based in the capital Tripoli. After the expiration of its mandate, new elections were held in April 2014 giving birth to the House of Representatives (HoR) that moved to the Eastern side of Libya, to the city of Tobruk. Libya then was caught between two competing legislative entities with conflicting claims to legitimacy in the HoR in Tobruk and the GNC in Tripoli and their respective governments. The Libyan Political Agreement (LPA) was signed on December 17, 2015, in Skhirat, Morocco after UN-backed efforts at reconciliation, followed by efforts to make the Government of National Accord (GNA) an accepted authority. But, these efforts were halted when on April 4, 2019 when General Khalifa Haftar launched an offense on the capital Tripoli, as well as the headquarters of the GNA. After Haftar’s failed attempt to control Tripoli, UN-led peace talks led to the formation of a Tripoli-based government of national unity headed by Abdulhamid Abdeibah since March, charged—on an interim basis—to lead the country to presidential and parliamentary elections. These elections will be the first ones since internal war between the GNA and the Libyan National Army (LNA) began in 2015.
Elections have sparked a legal debate on their foundational basis, with the absence of a constitution on the top of the list. Indeed, several attempts to draft a constitution have been made, all unsuccessful. An elected Constitution Drafting Committee (CDC) was formed in 2014 and produced a draft constitution in 2017 that was rejected by Tubu and Berber minorities and by the House of Representatives that stalled the referendum process for months. The Interim Constitutional Declaration that was issued in August 2011 (and its amendments) is the only active constitutional document in Libya. Months and months of negotiations have gone into setting up of a legal basis for the elections. The Libyan Political Dialogue Forum (LPDF) a body of 75 Libyan representatives appointed by the UN attempted to mend disagreements between Libya’s two legislative institutions—the HoR elected in 2014 on one side and the High State Council (HSC) on the other—as part of the Berlin Process in October 2020. But no specific timeline for a constitutional referendum to prepare for the elections was agreed on. As such, Law No. (1) of 2021 Regarding the Election of the President of the State and Determining his Competences was issued on September 9, with one-sided support by the HoR, without consultation with any other bodies, namely the HSC. Indeed, Khalid Al-Mishri, chair of the HSC had expressed his concerns over holding presidential elections without a constitution stating that it could lead to a “possible coup in Libya.” On the same note, Law No. (2) of 2021 Regarding the Elections of the Parliament was issued on October 4, 2021.
The blurry legal foundation for elections raises also questions regarding the place of Gaddafi era officials in the upcoming period. The Political Isolation Law (PIL) was passed in 2013 by the General Nation Congress banning any Gaddafi era officials from holding any kind of public positions for a period of 10 years. However the law was revoked in February 2015 by the HoR, and there is still no agreement on the fate of officials from the Gaddafi era who are banned from participating in any kind of public institutions. As controversial as the PIL was—heavily criticized by human rights groups and observers like Human Rights Watch and the UN—political activists have denounced and warned of Gaddafi’s partisans organizing political parties to reoccupy the political sphere once again. Active laws—namely the Legislative Election Law and the Presidential Elections Law specifying the conditions and procedures of candidacy—open the door to anyone not “convicted of any crime or felony” to run for the elections, including officials from the Gaddafi era. As such, Seif El Islam Gaddafi, endorsed by his father to succeed him, has presented himself as a candidate. The Presidential Elections Law in Article 12 allows civilian or military officials to present themselves in the elections as candidates, on a condition that they step down three months before voting, which is what Haftar did to present himself as a potential president for Libya.
While elections in post-Gaddafi Libya have been held in hopes of establishing stability, it instead has fueled divisions and disparities between the different political groups. Territorial grievances, positions related to Gaddafi’s regime and the revolution, and the place of Islam in society are topics that should the primary focus of public debate in Libya for a solid foundation on which elections could ensure stability from the ground-up. Even though the UN Support Mission in Libya has urged leaders to stick to the December 24 timeline for presidential polls and to proceed with legislative polls in hopes that it will help stabilize the war-battered nation, past experience has shown that elections and elected authorities haven’t contributed to Libya’s stability at any point since the fall of Gaddafi. So, the question should not whether elections in Libya are happening or not. The real question is if these elections, with a blurry legal basis, are the way to make Libya stable and start building the country post-Gaddafi and post-civil war. Indeed, the takeover by Haftar in the southern part of the country has reflected the will of segments of the population to compromise civil liberties in exchange a minimum of stability.—taking Egypt as a model that a military figure can ensure the country’s stability, nation-building, and the construction of a new Libya with new principles of governance.
The constitution first or elections first debate seems to be common in the region post-uprising. In Egypt, Parliamentary elections in 2011-12 were conducted based on the country’s 1971 constitution as determined by a post-revolution referendum. The referendum and its result led to heated debates that fueled divisions between political actors, which later led to a 2012 Constitution drafted mostly by an Islamist majority, in turn deepening divisions further. Libya should look at is neighbors for lessons.
The focus of stakeholders in Libya should be on nation-building, the establishment of a political system that respects basic human rights like ethnic minorities and women, transitional justice, and national reconciliation—rather than assuming that elections can be the solution to Libya’s challenges, especially under unclear constitutional and legal terms and unanswered questions related to the effectiveness of the elections in bringing about stability. The will to establish legitimacy and unified authority through elections is understandable, given the political and security conditions in Libya and the history of conflicting authorities in the oil-rich nation. However, the legal and constitutional basis for public life in Libya should have been the utmost priority to guarantee a stable foundation in the long-run. The divisions in a country where parties cannot agree on a new flag cannot be resolved by the ballot boxes.
Nada Ahmed is a researcher, lawyer working in the field of human rights, and a PhD candidate at the Transitional Justice Institute in Ulster University.