Constitution-making in Libya after the fall of Gaddafi: the role of national bodies and transnational actors
Parole chiave:Libya, Arab Uprisings, Constitution-making, 2017 Draft Constitution, Transnational actors
Ten years after the fall of Gaddafi’s regime, Libya still has not adopted a permanent constitution. Over the last decade, both national bodies and transnational actors have taken part in constitution-making; however, all efforts have been unsuccessful so far. While the scholarship on post-2011 Libya has mainly focused on the impact of local events and national actors on this process, this essay outlines the recent history of Libya’s constitution-making by stressing the intermingling of the activities of local bodies and transnational actors. By using the theorical lens of transnational legal orders (TLOs), it claims that two TLOs – the Western liberal democratic TLO and the Islamic one - will coexist if the 2017 draft constitution is adopted. Nevertheless, both TLOs would be necessary to reinforce the legitimacy of the constitution before, on the one hand, international organisations and Western countries and the Libyan population, on the other.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, Springer, 2016, 55.
Ibidem; J. Yeh, W. Chang, The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions, in Penn State International Law Review, No. 1, 2009, 91.
D.E.W. Johnson, Conflict Constitution-making in Libya and Yemen, in University of Pennsylvania Journal of International Law, No. 2, 2017, 298.
F.A. van Lier, Constitution-making as a Tool for State-Building? Insights From an Ethnographic Analysis of the Libyan Constitution-Making Process, Max Planck Institute for Social Anthropology, Working Paper No. 192, 2018, 18.
C. Geha, F. Volpi, Constitutionalism and Political Order in Libya 2011-2014: Three Myths about the Past and a New Constitution, in The Journal of North African Studies, No. 4, 2016, 702.
Y. Sawani, J. Pack, Libyan Constitutionality and Sovereignty Post-Qadhafi: the Islamist, Regionalist, and Amazigh Challenges, in The Journal of North African Studies, No. 4, 2013.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit.
A. Baldinetti, Identità nazionale e riconoscimento delle minoranze in Libia: le richieste della società civile, in E. Diodato, F. Guazzini (a cura di), La guerra alle frontiere d’Europa: incognite e prospettive nel Mediterraneo, Carocci, 2014, 113-116.
G. Shaffer, T. Ginsburg, T. Halliday (eds.), Constitution-making and Transnational Legal Order, Cambridge University Press, 2019, 6-7.
J.A. Thier, Big Tent, Small Tent. The Making of a Constitution in Afghanistan, in L. Miller, Framing the State in Times of Transition, United States Institute of Peace, 2010.
J. Morrow, Deconstituting Mesopotamia. Cutting a Deal on the Regionalization of Iraq, in L. Miller, Framing the State in Times of Transition, United States Institute of Peace, 2010.
See A.M. Morone, Idris’ Libya and the Role of Islam: International Confrontation and Social Transformation, in Oriente Moderno, No. 97, 2017.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 31-32.
See Constitution du Royaume-Uni de Libye, 7 October 1951, https://mjp.univperp.fr/constit/ly1951.htm#Chapitre_III.
See F. Cresti, M. Cricco, Storia della Libia contemporanea, Carocci, 2015, 144-146; D. Vandewalle, A History of Modern Libya, Cambridge University Press, 2012, 46; A.M. Morone, Libyan Intermediaries on the Eve of Country Independence: The case of the Bin Sha‘ban Family, in A.M. Di Tolla, V. Schiattarella (eds.), Libya between History and Revolution: Resilience, New Opportunities and Challenges for the Berbers, UniorPress, 2020, 46.
Federalism reflected the interests of Cyrenaica and Fezzan, which feared a unitary government dominated by the more populated region of Tripolitania. Conversely, Tripolitania believed that the federal formula would leave the central government with little power. At the end, federalism prevailed. D. Vandewalle, A History of Modern Libya, cit., 47; A. Bensaâd, Libya: The Dynamics of Fragmentation and the Circumvention of the (Re-)Construction of the State, in Afriche e Orienti, No. 3, 2018, 48-49; Draft of Libyan Constitution, 31 August 1951, http://www.ajcarchives.org/AJC_DATA/Files/5A1.PDF, 3.
See Libya’s Constitution of 1951 as Amended by Law No. 1 of 1963, https://constitutionnet.org/sit es/default/files/1951_-_libyan_constitution_english.pdf.
The Carter Center, The 2014 Constitutional Drafting Assembly Elections in Libya – Final report, 2014, https://www.cartercenter.org/resources/pdfs/news/peace_publications/election_repo rts/libya06112014-final-rpt.pdf, 9.
D. Vandewalle, A History of Modern Libya, cit., 48.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 32.
D. Vandewalle, A History of Modern Libya, cit., 64.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 32.
Idem, 32- 33.
See The Libyan Arab Republic Constitutional Proclamation of 1969, https://constitutionnet.org/vl/item/libyan-constitution-1969.
International Commission of Jurists, The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws, 2015, 15.
D. Vandewalle, A History of Modern Libya, cit., 81.
M. Campanini, Storia del Medio Oriente contemporaneo, Il Mulino, 2017, 147.
See Declaration on the Establishment of the Authority of the People of 1977, https://www.ilo.org/dyn/travail/docs/1528/cONSTITUTION.pdf.
F. Cresti, M. Cricco, Storia della Libia contemporanea, Carocci, 2015, 229-231.
M. Al-Qadhafi, Green Book, Ithaca Press, 1999, 16.
The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws, cit., 15.
D. Vandewalle, A History of Modern Libya, cit., 121.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 33. See also L. Anderson, Muammar al-Qaddafi. The ‘King’ of Libya, in Journal of International Affairs, No. 2, 2001.
Protests broke out as a reaction to the arrest of Fathi Turbil, defence attorney of the victims of the massacre in the prison of Abu Salim. Thanks to the Internet, opposition movements in exile organised a “day of rage” with the organisers of the 15th February protest. As a result of the violent contraposition between the protesters and the police, there were 15 victims and hundreds of casualties. F. Cresti, M. Cricco, Storia della Libia contemporanea, cit., 275.
K. Mezran, The Libyan Conundrum, in A.M. Morone, Libya in Transition: Human Mobility, International Conflict and State Building, in Afriche e Orienti, No. 3, 2018, 10.
See S. Henneberg, Managing Transition. The First Post-Uprising Phase in Tunisia and Libya, Cambridge University Press, 2020, 102-106.
K. Mezran, The Libyan Conundrum, cit., 10. The NTC was composed of the president and 30 other members (including five women). However, by 23rd March 2011, only the name of nine of them had been made public, officially to protect those who were in the territories still under the control of pro-Gaddafi forces. Camera dei Deputati, Servizio Studi – Dipartimento Affari Asteri, L’opposizione al regime libico, in Documentazione e ricerche, No. 211, 23 March 2011, http://documenti.camera.it/leg16/dossier/Testi/es0728_0.htm.
UNSC, Resolution 1970 (2011), https://www.undocs.org/S/RES/1970%20(2011).
General Secretariat of the Council, Extraordinary European Council 11th March 2011. Declaration, April 2011, https://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec /119780.pdf.
Sénat, Compte Rendu Intégral, Séance du mardi 22 mars 2011, in Journal Officiel de la République Française, 2011, p. 2097.
UNSC, Resolution 1973 (2011).
See R. Erdağ, Libya in the Arab Spring. From Revolution to Insecurity, Palgrave Macmillan, 2017, 30.
See Libya’s Constitution of 2011, https://www.constituteproject.org/constitution/Libya_ 2011.pdf.
These elements show an evolution with respect to the 1977 Declaration and the 1969 Constitutional Declaration and even with respect to the 1951 Constitution. In fact, the ten articles of the 1977 Declaration simply specified that the Quran was the constitution of the state (art. 2) but did not devote any article to the protection of religious minorities. Similarly, art. 2 of the 1969 Constitutional Declaration recognised Islam as the official religion of the state but religious freedom was guaranteed as long as it was in conformity with established customs. Differently, going back in time until the 1951 Constitution, art. 5 stated that Islam was the religion of the state but art. 11 established the equality of all Libyans before the law without distinction of – among others – religion. Moreover, art. 21 established the absolute freedom of conscience, so that «the State shall respect all religions and faiths and shall ensure to foreigners residing in its territory freedom of conscience and the right freely to practice religion so long as it is not a breach of public order and is not contrary to morality». Libya’s Constitution of 2011, https://www.constituteproject.org/constitution/Libya_2011.pdf, art. 1.
Libya’s Constitution of 2011, cit., art. 1.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., p. 84.
See I. Kohl, Libya’s ‘Major Minorities’. Berber, Tuareg and Tebu: Multiple Narratives of Citizenship, Language and Border Control, in Middle East Critique, No. 4, 2014; C. Pagano, Militanza amazigh e questione nazionale in Libia. La costruzione di un immaginario, in Zapruder. Storie in movimento, No. 49, 2019, 99-101.
According to art. 30, the NTC had to adopt the statute for the election of the GNC, appoint the High National Elections Commission (HNEC) and call the elections for the GNC. At the first sitting of the GNC, the NTC was to be dissolved and, within a delay of thirty days after its first meeting, the GNC had to designate the prime minister and choose a body for the formulation of a draft constitution that had to present the draft to the GNC sixty days after its first meeting. Then, the draft had to be approved by the GNC and submitted to referendum within thirty days of its adoption. The quorum in the referendum was of two thirds of the voters. After having obtained it, the committee had to certify the text of the new constitution that was to be promulgated by the GNC. In addition, the GNC also had to adopt an act on general elections within thirty days from the promulgation and those elections had to take place within 120 days after that. The HNEC had to organise the general election under the supervision of the national judiciary and the control of the UN and other international and regional organisations. Once the election results were certified by the GNC, the legislative power had to be invited to convene within 30 days and its first meeting had to mark the moment of the dissolution of the GNC.
In January 2012, a draft law for the election of the GNC was presented, but it stipulated a 10 percent quota for women, later abolished due to Islamist opposition. Islamists also pressured the NTC to abolish the ban on political parties based on religious or ethnic affiliation. N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 57.
In March 2012, a Conference of the People of Cyrenaica saw the participation of politicians, civil society activists, tribal associations and representatives of the military. The conference was led by Ahmed al-Zubair al-Senussi, a descendant of Idris. They addressed the NTC and asked to introduce a federal system in Libya with equality of all regions and to modernise the 1951 Constitution as a new Libyan constitutional charter. The NTC met the call for equality of the three historical regions and modified the composition of the Constitution Drafting Assembly by deciding that it had to be composed of 20 members of each region elected by the GNC, despite disparities in the population. However, they did not convince the NTC to re-adopt the 1951 Constitution. N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 73-74.
The team was independent from the member states, the EU Delegation to Libya and the European Commission. Election Assessment Team Libya 2012, European Union Election Assessment Team to Thoroughly Assess National Election in Libya, 22 June 2012, 1.
Venice Commission, Annual Report of Activities 2012, 2013, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-RA(2012)001-e, 69.
European Union, EU support to the Libyan National General Congress: Induction Programme to the Benefit of the 200 Newly Elected Members Started in Tripoli on 7 November, 9 November 2012, https://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/EN/foraff/133396.pdf.
Jebnoun pointed out that due to this process Libya emerged from the civil war without «a robust civil society, but with powerful and violent non-state actors». N. Jebnoun, Beyond the Mayhem: Debating Key Dilemmas in Libya’s Statebuilding, in The Journal of North African Studies, No 5, 836.
N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit., 61-62; see also G. Joffé, Can Libya Survive as a Single State?, in L’Année du Maghreb, No. 21, 2019.
See Y. Sawani, J. Pack, Libyan Constitutionality and Sovereignty post-Qadhafi: the Islamist, Regionalist, and Amazigh Challenges, cit.; N. Schnelzer, Libya in the Arab Spring. The Constitutional Discourse since the Fall of Gaddafi, cit.; A. Baldinetti, Identità nazionale e riconoscimento delle minoranze in Libia: le richieste della società civile, cit.
The Carter Center, The 2014 Constitutional Drafting Assembly Elections in Libya – Final Report, cit., 10.
Notably, this was the position of the Amazigh. According to unofficial estimates, they are about 10 percent of the Libyan population. K. Zurutuza, Libya’s Berbers fear Ethnic Conflict, in Al Jazeera, 6 January 2015, https://www.aljazeera.com/news/2015/1/6/libyas-berbers-fear-ethnic-conflict; The Carter Center, The 2014 Constitutional Drafting Assembly Elections in Libya – Final report, cit., 10.
Name of the state, identity of the state, flag and anthem, and language rights.
Relating to the case of the Amazigh, see C. Pagano, Militanza amazigh e questione nazionale in Libia. La costruzione di un immaginario, cit., 100-101.
C. Pagano, The Amazigh Issue in Post-Qadhdhāfi's Libya: Mobilizing History for Occupying a Political Vacuum, in Afriche e Orienti, No. 3, 2018, 69-70.
Venice Commission, Annual Report of Activities 2014, 2015, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-RA(2014)001-e, 67.
S. Ibrahim, Caught between Law and Politics: Judicial Review of Constitutional Amendments in Libya, in ConstitutionNet, 28 November 2014, https://constitutionnet.org/news/caught-between-law-and-politics-judicial-review-constitutional-amendments-libya.
C. Sbailò, Libia, la posta in gioco. Un compromesso costituzionale su un bicefalismo dell’esecutivo di tipo tunisino, in Federalismi, 14 November 2018, 5-6.
W. Morana, The OSCE and the Libyan Crisis. Challenges and Opportunities for Comprehensive Security in the Mediterranean, in Security and Human Rights, No. 30, 2019, 26.
F.A. van Lier, Constitution-Making as a Tool for State-Building? Insights From an Ethnographic Analysis of the Libyan Constitution-Making Process, cit., 13.
See Libyan Political Agreement, 17 December 2015, https://unsmil.unmissions.org/libyan-political-agreement.
UNSMIL, Libyan Political Agreement, 17 December 2015, https://unsmil.unmissions.org/libya n-political-agreement.
A. K. Maghur, What Went Wrong With Leon’s Libya Agreement?, Atlantic Council, 24 November 2015, https://www.atlanticcouncil.org/blogs/menasource/what-went-wrong-with-leon-s-libya-agreement/.
UNSMIL, Libyan Political Agreement, cit.
M. Eljarh, The Libyan Crisis: Internal Barriers to Conflict Resolution and the Role of Multilateral Cooperation, in A. Dessì, E. Greco (eds.), Search for Stability in Libya. OSCE’s Role between Internal Obstacles and External Challenges, Istituto Affari Internazionali, Edizioni Nuova Cultura, 2018, 55.
Libyan Political Agreement, cit., 4.
W. Morana, The OSCE and the Libyan Crisis. Challenges and Opportunities for Comprehensive Security in the Mediterranean, cit., 27.
See J. Fedtke, Analysis of the Draft Constitution of Libya Thematic Committees of the Constitution Drafting Assembly Status: December 2014, International IDEA, 2015.
The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws, cit., 14. In fact, in 2014, the CDA had held several public meetings to explain the drafting process to the population, which included meetings in townhalls and attempts to reach out to specific groups, such as women. Actually, those meetings were criticised by some civil society organisations because they were advertised with a limited advance, they were often attended only by tribal leaders and senior members of the society, they resembled more to a lecture than a debate and they were not held in some parts of Libya due to security reasons. Different groups submitted recommendations to the CDA, but the results were disappointing: few suggestions were reflected in the December 2014 Proposals. Idem, 19-20.
S. Ibrahim, Libya’s Long Awaited Constitution: Will it Finally See the Light of the Day?, in ConstitutionNet, 22 March 2016, https://constitutionnet.org/news/libyas-long-awaited-constitution-will-it-finally-see-light-day.
See The Draft Libyan Constitution: Procedural Deficiencies, Substantive Flaws, cit.; S. Ibrahim, Libya’s Long Awaited Constitution: Will it Finally See the Light of the Day?, cit.
Democracy Reporting International, The New Vision of Local Governance in Libya by the Draft Constitution of 3 February 2016, Briefing Paper 65, March 2016, http://democracy-reporting.org/wp-content/uploads/2016/05/dri_ly_bp_65_local_governance__3___1_.pdf, p. 1.
F.A. van Lier, Constitution-Making as a Tool for State-Building? Insights From an Ethnographic Analysis of the Libyan Constitution-Making Process, cit., 15.
Abed, News Roundup – Wed, Dec 07, 2016, in The Libya Observer, 7 December 2016, https://www.libyaobserver.ly/inbrief/news-roundup-wed-dec-07-2016.
M. Toaldo, A Constitutional Panacea for Libya?, Carnegie Endowment for International Peace, 22 August 2017, https://carnegieendowment.org/sada/72878.
Z. Al-Ali, Libya’s Final Draft Constitution: A Contextual Analysis, International IDEA, https://constitutionnet.org/sites/default/files/201710/Analysis%20of%20Libya%27s%20final%20dra ft%20constitution%20-%20Zaid%20Al-Ali.pdf, 2.
Libya Constitution, Final Draft 2017, https://www.temehu.com/CDA/final-draft-libya-constitution-29-july-2017-english-translation.pdf.
Z. Al-Ali, Libya’s Final Draft Constitution: A Contextual Analysis, cit., 12.
CDA Calls on Election Commission to Prepare Referendum on Draft Constitution as Tebu Representatives Reject it, in Libya Herald, 31 July 2017, https://www.libyaherald.com/2017/07/31/cda-calls-on-election-commission-to-preparereferendum -on-draft-constitution-as-tebu-representatives-reject-it/.
K. Mahmoud, Libya: MPs Refuse to Recognize the Constitution Drafting Assembly, in Asharq al-Awsat, 21 February 2018, https://english.aawsat.com//home/article/1182411/libya-mps-refuse-recognize-constitution-drafting-assembly.
Bertelsmann Stiftung, Libya Country Report 2020, https://www.bti-project.org/en/rep orts/country-report-LBY-2020.html.
See A. Mattiello (a cura di), Verso una nuova Roadmap della Libia?, Senato della Repubblica, Servizio Affari Internazionali, 12 November 2018, http://www.senato.it/service/PDF/PDFS erver/BGT/01081241.pdf.
He stated: «This Action Plan for Libya was not designed by me, but by the Libyan people who I crossed in towns, cities and countries to speak to. It is, in essence, a synthesis of their hopes and goals». UNSMIL, Remarks of SRSG Salamé at the High-Level Event on Libya, 20 September, 2017, https://unsmil.unmissions.org/remarks-srsg-salam%C3%A9-high-level-event-libya.
Centre for Humanitarian Dialogue, The Libyan National Conference Process. Final Report, November 2018, 8.
See S. Haddad, Dialogues, ambiguïtés et impasses libyennes, in L’Année du Maghreb, No, 19, 2018; F. Saini Fasanotti, A. Varvelli, Libia: l’anno di Haftar?, Istituto per gli Studi di Politica Internazionale, 27 December 2018, https://www.ispionline.it/it/pubblicazione/libia-lanno-di-haftar-21870.
A. Al-Shadeedi, Are the Next Libyan Elections Doomed to Fail?, Clingendael, 14 June 2018, https://www.clingendael.org/publication/are-next-libyan-elections-doomed-fail.
Bertelsmann Stiftung, Libya Country Report 2020, cit.
A. Mattiello (a cura di), Verso una nuova Roadmap della Libia?, cit., 4.
UNSMIL, Remarks of SRSG Ghassan Salamé to the United Nations Security Council on the Situation in Libya, 9 November 2018, https://unsmil.unmissions.org/remarks-srsg-ghassan-salam%C3%A9-united-nations-security-council-situation-libya.
A. Mattiello (a cura di), Verso una nuova Roadmap della Libia?, cit., 4.
K. Mezran, E. A. Neale, Libya, the US, and the Palermo Conference, Atlantic Council, 9 November 2018, https://www.atlanticcouncil.org/blogs/new-atlanticist/libya-the-us-and-the-palermo-conference/.
Conclusions, Palermo Conference for and with Libya, 12/13 November 2018, http://www.governo.it/sites/governo.it/files/conference_for_libia_conclusions_0.pdf, 1-2.
UNSMIL, Berlin International Conference on Libya, 19 January 2020, https://unsmil.unmissions.org/berlin-international-conference-libya-19-january-2020.
In particular, it talked about «the central role of the UN to facilitate intra-Libyan political and reconciliation process […] as well as the important roles of the African Union and its High Level Committee of the Heads of State and Government on Libya, the League of Arab States, the European Union and the neighboring countries in Libya’s stabilization» and «all these International Organisations will closely work together». Bundesregierung, The Berlin Conference on Libya. Conference Conclusions, Press release 31, 19 January 2020, https://www.bundesregierung.de/breg-en/news/the-berlin-conference-on-libya-1713882.
UNSMIL, Libyan Political Dialogue Forum, https://unsmil.unmissions.org/libyan-political-dialogue-forum.
UNSMIL, UNSMIL Welcomes the Meeting of the Constitutional Committee in Hurghada, 20 January 2021, https://unsmil.unmissions.org/unsmil-welcomes-meeting-constitutional-committee-hurghada.
S. Zaptia, HoR-HSC Joint Constitutional Committee Hold Third Hurghada Meeting, in Libya Herald, 9 February 2021, https://www.libyaherald.com/2021/02/09/hor-hsc-joint-constitutional-committee-hold-third-hurghada-meeting/.
UN-led Libya Forum Selects New Interim Government, in Al Jazeera, February 2021, https://w ww.aljazeera.com/news/2021/2/5/libyas-factions-head-into-runoff-on-interim-government.
J. Jawhar, Libya’s CDA Warns against Discussing Draft Constitution in Geneva, in Asharq Al-Awsat, 12 February 2020, https://english.aawsat.com//home/article/2127546/libya%e2%80%99s-cda-warns-against-discussing-draft-constitution-geneva.
A.A. An-Na’im, The Legitimacy of Constitution-Making Processes in the Arab World, in R. Grote, T.J. Röder (eds.), Constitutionalism, Human Rights, and Islam after the Arab Spring, Oxford University Press, 2016, 38.
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