After the fall of the Gathafi regime last year, the National Transitional Council (NTC) led Libya to its first democratic elections where Libyans casted their votes to choose their first elected authority in decades. The General National Congress (GNC) was tasked with the appointment of a new government, and preparing for the constitution writing process alongside other legislative powers.
It is widely agreed that one of the first and crucial steps in the process of establishing a sovereign post-revolution government in Libya was to draft a new national constitution upon which all future political decisions in the country would rest. The process would not prove simple. With disputes resting along factional lines, they would bring to the forefront the depth of the competing interests of Libya’s many social groups and factions, as well as a new relationship between the political apparatus and regional players especially in eastern Libya whose voice had been silenced for decades under the Gathafi regime.
Controversy over the Constitution arose even before the election of the GNC, when tribal, political and civil society leaders in eastern Libya convened in March 2012 to demand more powers for the eastern region known as Cyrenaica or Barqa in Arabic, also demanding a federal system of governance for the new Libya. In addition, the Amazigh population in Libya fear that their fundamental rights would not be protected by the constitution despite the rhetorical reassurances by Libya’s political leaders.
Then the ruling NTC had to amend Article 30 of the initial constitutional declaration, to state that the Constitution Drafting Committee (CDC) would be directly elected by the Libyan people instead of being appointed by GNC, after federalists threatened to boycott and disrupt the elections of the GNC. The step was interpreted as an appeasement to the federalists’ demands.
Federalists are arguing that only a drafting committee chosen directly by the Libyan people would be acceptable, since this was the only way to ensure that the Constitution would rightfully represent and protect their rights and build for a fair, transparent and equal new democratic Libya. There are indications that more controversies are set to arise during the constitutional writing process, thus extensive efforts are needed to reach an agreement on an effective drafting and reviewing process.
The writing of the constitution should be a process of discussion of problems, conflicts, interests, preferences, and claims of need by the majority and minorities in the society. For Libya to build for a sound participatory democracy, participants in the constitution writing process should be allowed to offer solutions for the problems raised or proposals to address the needs mentioned. For example, federalists and the Amazigh of Libya should be allowed to present reasons and justifications to persuade other participants to accept their solutions or proposals. Through dialogue, the participants will be able to test and challenge the proposals and arguments of the other participants. Discussions and dialogue should continue until the force of the better argument compels the participants to accept a particular conclusion, thus, it would be dangerous for deliberations to be terminated without reaching consensus between different groups. Proposals should be rejected, accepted or refined based on their ability to withstand dialogue and cross-examination of proposals and arguments. Thus decisions should be based onproposals, that are supported by the best reasons, as decided by the participants, rather than whichproposals are supported by the largest number of people, and that would help minimise the possibility of “tyranny of the majority”. The idea that interests of different groups are interrelated and dynamic and that the process of consultations and wide-ranging discussions facilitates the transformation of these interests into a national interest,is a key premise of participatory democracy. The different actors in Libya’s political sphere deliberating political matters in an environment that is relatively free from political domination of certain groupswould most certainly result in developing consensus.
It is vital for Libya to ensure political equality of all affected groupsand ensure an inclusiveconstitution-making process on equal terms. An inclusive constitution would require giving the opportunity different groups and factions to express their interests and concerns and to question one another, respond to criticisms raised, and analyse the arguments and proposals of others. This requires that the participants have equal respect for others’ ideology, ethnicity and gender. Additionally, participants must be equal "in the sense that none of them is in a position to use force (i.e. militias and other power brokers) or threaten others into accepting certain proposals or outcomes that favour certain regional or factional interests. The political equality norm that Libya should be built on needs toensure that all citizens are free to speak and have the sameopportunity to speak.
Many of the members of the Libyan General National Congress (GNC) favour the appointment of the Constitution Drafting Committee (CDC). Some of them support this direction because they believe they can represent the needs of all Libyans equally, while others support the appointment of the CDC for political and ideological reasons. This is why the appointment of the CDC would be dangerous in the case of Libya. Some leading parties within GNC are now reported to be considering their position on whether to appoint or elect the CDC.
However, there is legitimate concern that elite discussions or deliberations concerning crucial and significant document such as the constitution generally focus on addressing the security, political and economic concerns of the elite and not the different sections of the society. Such a narrow focus during constitution making can cause drafters to miss out on effective substantive governance solutions and recommendations that would otherwise address the needs and problems of the masses. Participation by those with the complaints and thoseexperiencing the difficultiescan lead to the emergence of different types of recommendations, proposals, and solutions. Participatory constitution making recognises the public as a resource for democratisation. This approach to constitution making seeks to utilise the experiences, knowledge, ideas of the public, and that would make public participation effectivethrough the right to self-determination.
Direct election of the CDC would be the first step towards consolidating public participation in the constitution writing process for Libya. However, public participation needs be further consolidated by taking measures for collating and integrating public input through questionnaires, focus groups, forums etc.
Finally, the GNC needs to take the issue of the forming the CDC seriously and the committee should be formed sooner than later. A committee has already been formed within the GNC to conduct a national dialogue on whether to appoint or elect the CDC. The committee has been given a month deadline to present recommendation to the GNC on the matter. The count down for the lifetime of the GNC will only start when the CDC convenes for their first session.
Mohamed Eljarh is a UK based Libyan academic researcher and political, social development activist. He is from the city of Tobruk in Eastern Libya. Follow him on Twitter @Eljarh or email to: email@example.com