Despite this year’s progress in the Libyan peace process, the new interim Government of National Unity (GNU) still lacks a proper constitutional framework for itself and for the national elections which it is charged with holding on 24 December 2021. The constitution is another necessary step toward the full legitimacy of Libya’s governing institutions which has been elusive since the fall of Muammar Qadhafi’s regime nearly a decade ago. There is, however, a lack of clarity on the way forward and discussions on the constitution appear to have stalled in the House of Representatives (House) and the High Council of State (HCS). Meanwhile the High National Election Commission (HNEC) has warned that a referendum on a new constitution — an option favoured by a number of important political factions — will almost certainly delay elections beyond the 24 December deadline and thereby potentially derail the UN roadmap. This, combined with recent signals from senior GNU officials expressing ambivalence about their commitment to the elections, has led to nervousness in the UN and international community which devised and led the LPDF process. The current urgency is compounded because Ramadan begins this week so all work is expected to slow down significantly during the Holy Month.
On 7 April the UN Special Envoy Ján Kubiš therefore convened a three-day meeting of the LPDF’s Legal Committee in Tunis to finalise proposals on the constitutional basis for the December elections. Kubiš — clearly feeling the weight of international pressure to ensure that the elections proceed — repeatedly emphasised their centrality in his opening remarks. He noted that the election plans were a critical achievement which, after many years of division, will enable the Libyan people to directly elect their new leaders through democratic, inclusive, and representative elections. ‘This is what they want, what they deserve. A 9 April official UN readout of the meeting suggested that Legal Committee has reached a compromise and that its members had pledged to submit their final report on the discussions and outcomes to the forthcoming LPDF plenary meeting.
There is, however, some contention over whether the LPDF, and its associated committees, has the authority to make any decisions about the constitution. The LPDF’s originally role was to ‘follow up on the progress of the of the constitutional process’ but its powers were later expanded to include the right to ‘decide on the progress of the constitutional process and the legislation needed for the achieving the elections’ if other institutions fail to do so. Some argue, however, that the House and the HCS have not been given sufficient time to produce the necessary constitutional amendments, and that the international community is rushing things to keep the LPDF roadmap intact. Last week, for example, the US Ambassador to Libya Richard Norland met the HNEC head Emad al-Sayeh in Tunis and noted that the LPDF has a duty to ensure that the elections take place if the House cannot do so.
Part of the problem is that there is significant controversy and division within the Legal Committee itself on the extent of its competency vis-à-vis the constitution. On the eve of the Tunis meeting a prominent human rights lawyer, Elham Saudi, resigned from the committee and claimed that the constitutional basis for elections and permanent constitution have diverged in a way ‘that is dangerous for human rights and the rule of law in Libya.’ He alleged that the Legal Committee has exceeded its mandate in attempting to find an alternate route to an amended constitution.
Nevertheless, the UN, US and other actors have clearly placed their faith in the LPDF and its committee to come up with practical solutions to break the constitutional impasse. Saudi’s departure may indicate that those advocating a muscular LPDF stance on the constitution have prevailed but it also sets up a potential scenario in which some in the House and HCS claim that the LPDF lacks the necessary domestic legitimacy to decide on a matter as important as the constitution.