ElectionsLegalTheIn Search Constitutional Analysis ofin LostLibya and Legitimacy: Process Review inof Libyathe Possible Constitutional Basis for Future opportunities TableI.C.B.A. OverviewLegalTowardsIntroductionof Content analysis a of Constitutional the main constitutional Referendum? options in place – challenges and 2.1.II.5.4.3. PresidentialParliamentaryScenariosThe Referendum2017February20111951 DraftConstitutionalConstitution for elections theCommittee electionsConstitution Lawelections without Declarationwithout Proposal referendum a Constitution TheIntroductionInterviewListBibliographyRecommendationsConclusion ofabsence persons Framework of interviewed a Constitution in LibyaIN since SEARCH 2011 OFis one of the main relatedTuaregmajoritypublicLibya.DraftingSincelegitimatelybecontext,setanyaamendments,challenges non-elected another anyclear they referendum.They toand clear amendingAssemblywas guidancelanguage were to Amazigh)legalentitledhad neededstability,time body,the elected achallenge, 2011 limits120have theandforthe Accordingto for hadpeace, inpresidential Constitutional doConstitutionaldays’Nationalculture. been it Februaryand toso,to since agree and bemandate mandatestasked orto The approved,Transitional whatforthe 2014,it by and timeline,holding iswith Constitutional Declaration, consensusDeclaration frameworktounclear parliamentarytheto doelaborating whilethese 48 future Councilso,however, members which cultural beforeoninstitutions. which shouldtoelections. Declaration,topics (NTC),set a mechanismwaselections, new putting of wasthesecomponents be the ofnot does Constitution Despite adopted.agreed their InConstitutional respected,terms the thenotanor concernswouldtwo draft uponcurrent provideseveraldoes (Tebu,would third for beasby toit definedrangetheremainNotwithstandingsuggestionslawafter,asconsideredDespiteas2017,multiple protestors perreferendumpoliticalin several aNovemberfrom Proposalarticlefor legaldraftsfor the legal thespectrum. ofrunning unsuccessfultriedchallenges 23werethe Constitution lack law thewasand 2018.of Highto producedcurrentand the of forthefinallybreak InKeyconstraints National Libya to againstpresidency,draftJanuary attempts, the areas intoconflict,toadopted by Politicalsentbe2017 the the Electoralthe of2019,passed on to CDAconcernCDA proposal aimportantproceduresby which presidentialcontestedtheAgreement thea between headquarters 2/3toCommissionHouse lawexcludes ina remain majority,referendum. legalthewas constitutional ofof2014 (LPA).power Constitutional theamended Representatives andcertainstrong in andto (HNEC). vote, political Thedifficulttoprevent 2017. Oppositionstheon candidates, thetoHoR referendum all reflectconditionsOn challenges voteProposalthe conditionssidespassed, 29 (HoR) vote. wasJuly the toofas thatDeclaration,ConstitutionstakeholdersDuemoreinreferendumfuturefearingminorities,outreachbycontributedwell Tripoliactors towouldas necessary progressthe theinadequate has bywho lack comeandresults the tolaw or renderedinhave do the of throughmembersCDA place,on passedforout progressnot ofpoliticization acalled sustainableitself.protection of aconstitutionalknow thestrictlythethrough aby National the Powerful constitutionalfor onUN-ledthe all High theelectionsmajoritarian HoRthe of anotherofpeace CDA Charter,Stateminorities’Nationalthe proposal’s referendum.Easternwas track constitutionalin Counciltoprocessquestioned amendmentLOSTLibya. itself bevotingConference tribes,and provisions,rights.organized LEGITIMACY: (HSC), the includedmoreThe process, federalists, constitutionalas fileconstitutionality These to complex,among well.and thewithoutduein have the serveThe Libya,concerns Constitutional to othermonarchists, Declaration, blockedand insufficientrecent aasfile, and durablegroups,yet a of basis have somealsooften waranythe thegoalsever2017,onetoproposalexplainbothThetheirInternationalgoverningfor go a constitutionaltransitional ofMay new since. callsupport forward.ofit the thewhatseems 2018 theforelectoral keydocument TheNational neededelections stakeholdersbasiswill Pariselements The to Augustperiod be haveprocess law. Abuthis AgreementConferencekey international until to throughIndeed,2019 been Dhabi couldofto be ortheconfer havea organizedSecretary referendumtheslowly be.UN2019 the parliamentary andfailed wereCDA legitimacy TheActionsupport Constitutional Agreementleftthe explicitly, to toprocess General“on out“adopt Novemberprovide Plan is and a of held.to constitutional for the and recognition athe thusand report alsoa roadmap LibyaclearDeclaration UNSMIL’s future parliamentarian 2018while failedfalls on guidelineadopted Palermo theconstitutionalLibya shortaimed tofor basis”, prioritiesConstitutionprovide remainsthe states ofin at until referendumDeclaration mentioningSeptember concluding but elections, thenow, that asLibya’s dotrack. CDA wellwas butthenot DeclarationConstitutionalanfirstframework,ortoprotractedDialogueNationsIncouldtheproposal.”which 2018, end attempting, importantonly be Constitutionwouldthe the Support“normal”considered. (HD), transition Thisconstitutionalreport themselves.for include breach stressedDeclaration, throughinstancephrasing Mission of andof the period. recommendations 1951, tolegitimate National theother The drawingprocess,thehintsin generalHoldingLibyaor as risks institutional political the that wellConference way,upon (UNSMIL)andand February frustrationsthe electionsas consequencescriticizedand means, previous referendumontoTHE processhowthatthe Process,by Committeein CONSTITUTIONAL tothe toother theLPA theofdocuments draft addressthe Centre absencein inability is facilitatedand of options Libyan placeno sucha Proposal),newthelonger thefor of (suchofbreach since people to Constitutional Humanitarianpoliticalconstitutionala for referendum“address considered the as the arewithwould Libya’s United elites 2011hard the it”be Aboutto predict. this Report wereillustrateintheThelostgatheredbringsforlegitimacyinternationalinto Libya futurelegal, constitutional varioustheinobjectivesreport conducted thetogether other sincepolitical,various before. elections. political of isexisting basedthecommunity,possible of1951. in between points,The thisvariousprocess and process,a Itlaws,on didactic To reportlegal issocialoptions. a meantseventeen support comprehensive constitutionaldecrees,Maybyin report and Libyachallengesexposes analysingmanner andItas looks aimsthe aissince qualitativedecisionsJuly knowledge to how argument,toat sources provide theto2019 its andguide howlegalPROCESS thestrict beginning,respective legal and init referendum,interviews both analysis aoftool can Libya.legality comprehensive feed constitutionalinformationframeworks decision-makersforbe IN in intofoundFor decisionlegal and LIBYAandorder with whilesecurity the alegitimacy validityagain. key desk tothat on analysismakers,frameworks alsounderstand overviewinformants the reviewwerereasons, and andlooking table, were and thenot of politically; MainTowardsStatesdoSeniormemberThethe not informantsreport FindingsThe reflectAgencyProgram Aof HoR Constitutional wasthe thefor2018 GNC,chose writtenAdvisor Internationalpositions vote Hisham to with atonremain Referendum? ABA the ofsupport Al the ROLIreferendumDevelopment. Windi,anonymous. American Libya. from mediation AkramThe law Bar views is Associationexpert,contestedGnine, contained lawyerand both orKora in ofand legallythis the Andrieu, former reportUnited and TheDraftingOnrise.the electoralas ✓against July CDAproposalopinionTheSupporters 29th,trackAssembly districts districts,HSC,maininternational the of was and2017, inlessprovisionspoints particular,isvotedof (CDA)the andnecessary populatedafterthe ofreferendum, bycommunity the approvedoppositionreferendum 43of2 considers scenario yearsoutthe to areas prevent ofLPA; an of 44encouragingaredid official and attendingdeliberation,inlawthe aroundnot acase majorityreferendumminorities;argue provide draftof the CDA otherathat vote ofdivision “no”the clear members,the lawthealternative that Libyan Libyanvote; publicanddivision wouldof Libya the Constitutionand Constitution.support not optionsHoR inthein reflect three vote, vote to tosurroundingWhilethatdidandsufficientlyit.theonewas callTwo✓ not meetingmajority.consideredotherexcluded forthe Tebuadopt another EasternCDA itsprotect andHowever,CDA acertain building legalfullyvote issued, vote members constituenciesthe federalsince tookcandidates and 10 inrights shortlyal-Bayda,CDA sent,theplace governancerejected ofmembers,Constitutional on afterminorities.fromin did CDAJuly highly thenot therunning 30,President includingmodel, draftacceptvote, 2017,LegaltensedThe Declaration Analysis forfederalists,on a andofficial itNouhstrong boycotters, presidency.theconditions,either, and because Review Al-Moghrabibasis letters requiresstatement partly the that didit with to setmonarchists, because notaitthe 2/3refusedagainstcriteriadid riotersattend House plus not it transitionalofbeforeAccordingonethe Provisionsprepare(HSC) Representativespreparing HSCmonth andthe forare toto theonend aftera period. aArticleexpected Article referendum.the referendumHigh of having constitutionalthe (HoR), 51National23 CDA’s to of ofreceived providethe the and workPresidencyLibyanElection LPA, generalprocess thewritten to the Political document.establish Commission HoR elections inCouncil opinions the andAgreement LPA a (PC), the jointlaws, on (HNEC), HSC thecommittee to (LPA), High drafthaveput asking anState theConstitutiontwo endin HoR them monthsCouncilcharge to andthe to optioninternationalconsensusifinlaw,TheintoConstitutionalDuringtheNovember the view constitutionalpraisingUNthreeprocess, vote afterofthat Support the metpolling 26, between samethe instead referendum,communityhowever, 2018,theDeclaration, adoptionMission districts session,HoRreferendum afterthethe proceduraltook “efforts” HoR in severalneverof and (article the Libyato themuch and render wishingHoRlaw, fullylaw of didfailed the6)requirementslonger thememberswith bynotimmune and the HSC it HoR theattempts, success.theclearly referendumopenlythan HoR,required“toof approval thealsofrom issue expected, Possiblewelcome andconsiderably supported Itthat amended remainedfuture the byreflectedConstitutional ofthelaw’s the requiredover the andHoRlegal LPA. divisiontheArticle adoptionunclear 135Basisit weakening finally the challenges.wasreferendum legislation”In members. necessary30 fact, ofonly indeed passedofLibya the onits therequirement,LibyanHeadelaboration,especiallyTheeffects. CDA referendumreferendum Khalid Political and from theAl-Mishriand in Agreement. HoRcase lawthethat inissued altogether,HSC,of therejected case a noprocess which Inby thevote, particular,HoR the draft considering to claimed wasHoR’s was explain was therefore immediately the tworejected, that its for two themconstitutional Future reason, itbodies contrary aswasElectionsas met well being and HoRnot in with asLibya to alsoamendments consulted disagreedaton the wide oddsthe on LPA. the divisioncriticism, with roleonHSC’son and theits of nootherofformulateinisHNEC,However,ElectionThebasedandstakeholdersarguedLibya held.September thedetails referendumconsider, into issues,on Libyanand thatThe Commission afunding threetheiron could single Nationalthis theand2017,itPoliticaldue visionprovisionelectoralshould have law formatelectoral fromminorityto was Conference, adopted demographicbeenfor (HNEC) Agreementthehave meant andthedistrictswas purposefullydistrictPresidentialgroups, future clarifiedmechanisms againstbyon to the which provide29- toas imbalance,Tripolitania,andto HoR November theadvance anti-democratic. thethe delayed isgenerateCouncil Constitutional apartwas opposite, ofroadmapplatform the of referredthe the until Cyrenaica (PC)2018the supportNational politicalholding the UNfor supported wasofto Declaration.tofuture Nationalthe Actionstart for not theand Conference ofprocess.Libyan the transferred aHighpreparations. Fezzan.Plan elections. thisreferendum Conferenceinstitutions people National adopted EasterndivisionAmong Manywere Butto politicalconstitutionalBeforeboth2018wouldtoprobabilitytheThewasoutbreakgiven, fail associatedlack postponed theLibya bevoluntarily,and the commentatorsoutcomes HoR challengedofof theof brief thepoliticaloutbreak a and constitutionalreferendumlist offensiveindefinitely. amendmentsto knowingHSCof theof consensusinviteesin theof UNLibyanof have against thepurposelyNational Securitythusthat referendum remainedsuggested Tripoli courts.to theover appeared Tripolithe Conference, Council, lawdelaying war theConstitutionalEchoing secret onandthat in validityon Apriltothe SRSG the theelections.beApril untilthisnear 4th, which constitutionalmostlyHoRof viewGhassan thefuture4th, thetheDeclaration has couldlast during referendumNationaldependingthe veryset minute. Salame probability havethe unlikely. hisamendments Conferencerenderprocess November led upon After accusedlaw toSome of andthe up a andcouldFebruarythatConstitution,ofFacedGovernmentDialogue.PreparatorytoseeminConstitutionaladoption thealternativeholding limitswould, absenceto beby take of the adopted SimilarCommittee parliamentaryon a either dire moretheof Processthroughoptions,the ofDeclaration National CDA a prospects approachcontinued throughreferendum.consensualon process anotherProposal,whichthereport Accordor basisto the wasof presidentialweretransitional allow as the publishedamendmentreferendum NationalInterestingly, reflected (GNA)orgranted,of referendum,already theparliamentaryof any to1951 Conference,elections process. butexit bylaid in other law,of the ortheto the theout experts orthe 1963 recently-unveiledNationallegislative in currentConstitutionalCentretoInandwithout contrary the new thatConstitution,set presidentialhave National amendments Conferenceclearscenario, crisis.fora arguedopenedframeworknew Humanitarian basis, DeclarationConferencepermanent plan electionsorin itthe didwillfavourterms of to doorof that the notthebe automaticallythanConference.haveThetoandcanAdoptingSupremetheThisaup new support to capacity withoutalso lack option,Haftarserved a draft newly be of aCourt it.legal political andstrongproblematicofthe Constitutionhowever,The electedfavour the interestsSerraj,rulingframework National HoR international andthem. Parliamentalso againstto through without internationalamend ofConferenceafter raises SomeLibya’s for it,thedeclaring elections supportthe a isthereforetohigh mainelectionsConstitutional legally Constitutionaloversee risked supportlegal politicaland thebased uncertain suspect indeed andthrougha theCDA UN to onplayerspoliticalreferendum, SecurityAmendment the processDeclaration, empoweringa that theConstitutionand CDA aheadthereNational challenges.could Council processnull. ormay of to afterbe other to the Conferenceenshrinethat Resolution contested. have elaborateseems Nationalthe Indeed, partiesdid been2014 not toit, Main andwouldLibya’skeystrongcoulda political1.I. for opportunities FindingsTheOverview also be basisthetransitional more 1951 deal haveprocess for ofConstitutiontolikely. contributedthe theabandon toperiod futuremain succeed. constitutional couldthe electoral to building entireIn continue the process. process.absence thebasis indefinitely, necessary for Such Butof future such the political political minimalelections: Nationalwhile support violent buy-in guarantees,Conference challenges will conflictand be a Aand Gaddafi’sanalystsamendment;system Historical✓ removefailsTheHowever, in andto documentdocument1951Libya,coup respondDocument referenceparticularly theConstitution onlywhich question is suspendedisto not tostillwascontemporary the ina remainsconsidered monarchy;replacedline offederalists Independence thewith 1963of international by how Libya’slegally a and Constitution,centralized to monarchists,amend establishedvalidaspirations standards bythe state variousand 1951/63 whoaas didthrough instrongly a manynot constitutional consider Constitution,democracy. abrogate theaspects, federal 1963 that it; respectdefinesleaders,conductedprocesslegislationTheofthusthe1950.aallResolution,wasAt Constitution thethree✓the United under1951became ThisUN. time forwassuchhistoricthe Constitution KingdomConstitution that withaallwhich overseen of StateUnitedasthe religions, establishing Libya’sformally theregionsthe first calledreligion Grand ofNationsapproval byLibya nationwasindependence, has offreedomfor codifieda MuftiLibya committeeas the adoptedawas (UN) toIslam ofconstitutionalspecial Sheikh establishment bydeclare a formallyof trusteeship,the Januarygroup thoughtand in of rightsAbuplace on Octoberits experts, upholds ofdeclared independenceal-Asad241952. and renownedinmonarchy of December of defined Libyan1951,Libyan expression. A aledpublic national sovereignal-Alim.24 by Decemberand Libyancitizens.Adrianrightshistory,underby 1951, under the assembly Thea It state November newandestablishedPelt,scholars King text theas The1951. freedoms, including nationexplicitly the and auspicescountrydraftedIdrisdrafting Libya firstwasand1949 ofin a basedGreen1969thisremovedandcouldabilitypoliticalamendment,Theitsevenfederal key ConstitutionthatConstitutionCyrenaica, with onlystill toonBookvalues system systemthechange through articlethedisruptedbe referencesuntil the theauthorityand with eachchanged and195 ofbasis mostis, thesimilarprinciples, Independence theinthreeevolve,of 2011with oftosignificantfact,the toapplication Libya’samendments.fromcollect a sub-nationalrevolution,specific1951 monarchicsomestill the a Constitution,taxes.federationlegallynewtext wasanalysts one of executive wonpost-revolutionary butdrafted theBecausesystem Othersbeingvalid,governments the did Constitution,have to approval notarguingwhicha in madeofeven and centralizedarguedit a government cancelwasway legislativein makestates considered inthat1963,of that replacing democratic Tripolitania,it.the the allowed Gaddafi’sthat:Thisstate. this Unitedwhen couldargumentbranches, Constitutionargument Dueinitthe for beNations. linewithsystem, Fezzan couptofuture easilyState's withthat this theand isin theremains,WhileoriginalLibyaCouncil,issued1969Accordingmartialbe“The impeded, 1951Constitutional is application isthe bylegally Constitution, law.” notitself Constitutionof avalidity to competenthow inthisexcept alsoinvalid, a would interpretation, constitutionalofof anDeclaration thisthetemporarily which becausebeunelected provisions body. provisionsargumentdeleted was With it adopted the onlyvacuum. body,was andrelated inthe canConstitutionaloftime temporarily contraryreplacedsame isthis be illegal.into ofWhat challenged,the 2011 constitutionargument,war, tomonarchywith isThus, thebysuspendedor neededProclamation athe duringConstitution presidential pursues itthe National iscould in is practicalnotthethe byto be fifththethe inapplicationreactivate of Transitionalandargueddemocraticany 1969argument,December chapterquestion was way coup. that not itstoof of ofalsotofederalistfairintheaccountFurthermore,useand1951willansystem. thebring emergency,amendment past arise distributionittoleaves constitution astext. some much60 Thisfor aas system basis Ityears. the fundamentalto alsocouldextent and neededwho door provides tooffor createdExecutive canmostcould thehaswealthindeed futureopena benational sourceConstitutionalthe importantly, further a changesweakanfor amongauthorityusefulrequireelections. monarchy imbalancethe ofunity judiciaryentrench abrogation inspiration,reference allineither the andto Libyan three Declaration,is formulate Constitutionof notreconciliation. aguarantees, thepower decree, regions.theto politicalof itfragmentation Libya’s rights onlywill suchand anda be anti-democraticof Afterand popularprotectionfailed constitutionalindependence amendment. andtechnicallyThethus social years 1951todoes legal of referendum,account landscapeLibya in of Constitutionnot difficulties adifficultconflict, While situation debates, doeselement and specifyfor thenotfailfor or to a andprotectsfurtherreligionTheChallengesunsuitedrelations- Constitutionmorals;Freedom claims (article publicforwith of Libya’s the internationalthat of ofrights5), thebeliefofthoughtPolitical sovereigntythe currentIndependence press and source(article (articleSystemfreedoms, andneeds,law and comes 21); publicationand 22),Established rightsreferenceexplicitly conventions. including:fromif it and does God(article states ofinternational by alone. notthe theTo 23); contravene that Constitution. that1951 The Islam extent, 1951Constitution obligations. Constitutionpublicis itArticlethe appears orderState 40 The1963.theConstitutionpowers39independenceestablishesIn (articlerelated -definesterms federal political RespectFreedom to24);usually of religion, natureathese names federalthesystem ofto of constitutionally the organizationeducationusingfederal of culture, both threeconstitutionalpersonal theestablished any State Tripoli provinces,powers, languages(articlejournalism, status wasof andassigned by the monarchyrepealed with 29); Benghazi oforthe Libyanin non-Muslimbranches,provincial publication,private1951 to by that theas state, constitutionalConstitution transactions nationalgrants offederalgovernments citizens the theor stronggovernment. in 1951capitals.government. public (articleis amendment or authority aConstitutionassuming anyhereditary meetingsHowever, 192). matterArticle Theand inall andunclear.satisfyUnlessratherisofbytherulepowers,aMinistersThemonarchy, House unconstrained,publiclaw”, ConstitutionSupreme extraditionKingon unsuited these.theit of“exceptForand orderappointsresponsibleunderwent Representatives.where constitutionality instance, theCourt The according and forincanjudiciary power andcasesarelation doesthe isalsoPrime massiveto onlynothe presenttheis not prescribed be isto hastransferredarticlescontrary Ministerbetween King.Theofplaced internationalrestrictedhave nolaws.change, KingLibyan Theguarantee judicial189 above to Furthermore,by and,has nationalParliament tomorality.”and “according law,”contextthe significantthe withlaw.reviewthe 191 1951 ofeldestor Theandlaw. his defineindependence.and“so powers,Butis Constitution to consultation,rest many internationalThese longdividedson democratic the executivethe the ofof as manner rights powertheor provisionsthe statusintoit the is Constitution previous For andwoulda not protected aaspirations. authority ofSenatelawprescribed of Council legislative instance, atherefugees appearbreach isfail King. King alsoand bytoofis However,wasaLibyanCouncil”coupTheto25,Civilsilent “Constitutionalvote which Lastingconstitutionaltoand removed on serveArabin headedPolitical this Libyasecretenshrines LegacyRepublic astopic, King was, a byand Rights governingProclamation”, Colonelmonarchy and ofIdrisinthe periodicabolished thereality, ignores,(ICCPR,right and Constitution Muammar document toreplacedgovernedendedelections, the choose tofor on which previous instance, on 11Qaddafi. him ofuntil for freely1andDecember Libya IndependenceSeptember 42 with atheConstitution yearsone’snewthe isThe aright a International “RevolutionaryStateConstitution byheadrepresentative,1969. to1969,Qaddafi’s party)runof and Thethe whenfor issued newlyandproclamation wasCovenant office. Green Command aits the drafted. militarydeclaredinstead article rightBook, on eventualityfigurethem,showsrestoringFederalistsForces.”the1979,authorityestablishedwhich “Leader Qaddafithe thatcombinedshould There ofConstitutionthe their was the andofthe 1951 be the officially would“People” actually views “Thirdmonarchistsnationalism,named Revolution” or have ofbe1963 Independenceplanned Universalinstead throughrelinquishedno strong constitutionalConstitution remainIslamand byofdirect backing, Theory”, thedraftingpre-Qaddafi and all isthe“Supreme rule still ingovernment socialism. especiallyorder stronger andan Libyalegallywhich entirely committees laws,until Commandertoday. valid,sought inpoliticalIn 2011.position, the newwhich1977, andRecent East. toConstitution. a(Jamahiriya). provided new supportersa enshrineofthus According Declaration experiencethe sovereign becoming Armed for the This the toInof However,wouldguarantees,oftherespondinWhetheranduntilareplacement “Sovereign athis 1951monarchicalaclear a President. oversee newmakevisionary toConstitution,it thebalance canConstitutionthe as the oflegacyCouncil” thebe wellneedsthe 1951systemand argued formation ofKing asof powers andConstitutionhistorical totheandthe is underwasbe that 1951drafted, unclearaspirationsdespite elected toofand Qaddafi’s emergency Constitution beadocument, new the status removedclearfollowed unfitdirectly government,absenceof guarantees aforofcoup conditions,modern internationalby by throughrunittoday’s theelections doesonlyof deep trueLibyan suspended, democraticand notforanLibya. and through judicial amendment, itequalforseem laws people.wouldcannot a new rightsand theindependence toState. notgovern be The Parliament adequately standards,creationabrogated, denied. set theCouncil Even Libyaforth lack of Itif only Mainattending,adopted“Committeewhenforremains 2. future constitutional FindingsTheestablishing aby Constitutional 2011 keystonewerelaws the of Sixty”Constitutional Committee alsoand the frameworkin keptprocesses. thatLibya’s number Declaration, draftedin of the history, DeclarationSixty, ofuntil bylaws For CDAthe based now,votedwhose instance,1951 members of and the byConstitution.on provisions the CDAthewas the NTCin total modified2014,amendednumber in could 2011,number Quorum on bethe ofremainsin11 an 60 model2015.of times;regulations inspiration memberswas Libya’s of kept the governingOnAthatconflicts fromsporadicof Keystone the✓ February coulditsAmendmentsTheArticle transition, very violence inlow body, pass Document 30Libya, representationbeginning;27, of thesuch duringthe 2011,is partlyto Nationalthe Constitutional theamendments.and a mostthe due Constitutional unionMultiple of 2014 toTransitional womencontroversial the of elections, Amendments Declaration,contestedlocal and Declaration rebelminorities,Council weakenedand legitimacies groups which was (NTC), are asamended definesthe well formedoften recognized CDA’sof low the at the turnout repeatedly; anthelegitimacyauthorities roadmap interim coreby andthe of endedInoutoutlinestheintotransition.Constitution,establishedhadConstitutionalofficialLibya3,international accordance2011, aState,twoto timeframean with secure religion, maintheindependentthe democracy, Comprisinga functioning key peacefulNTC thecommunityparts. Declarationwithagreements principles forandelection promulgated the ThetheIslamic transferdemocratic and 37of Constitutionalfirsttransition. asofstate articles,forwashuman fromrepresentativethe Sharia governancepartof bodies drafted the legitimate power various State containsrights. theasConstitutional during the Declaration, intoConstitutionalwith agroupstheThe until principaltimebodiesgovernment provisionsits the newly second capitalthe oftransition engaged andongoing Declaration, adoptionelectedthesource half regardingDeclarationinthe NTC’s ofTripoli, timeframeperiodis Libya.inwar,ofGeneral ofmore legislation.the term a andIslamproclaimingthe permanentandOnfighting. ispractical, Nationalinthe nature dividedAugustsettingfor asoffice NTC theThe Itof andThethatcommitmentLibyannow,violence.mandateamendedtoofArticleCongress thebe Constitutional2019is andmore GNC’s basedPolitical30 andseveralofbybenefited(GNC), turbulent, the various termon toterms Agreement Constitutionalthethe times, during inDeclaration principles Constitutional tolegislativeoffice.from and lead demonstrating a ultimately (LPA),ceremonial wideLibya’sConsequently, ofDeclaration wasremainsbodies. democracyinternational signed Declaration, amendedtransition, triggered the Originally,eventthe in didimportanceSkhiratthe rulingand 11 not on war.supportandsecond andpeacefultimes clearly Augustthe Constitutionin Thisto to2015, Declaration avoid transferof inthe and article mandate cleartotaltransfer8, reiterates political recognition.future2012. betweenconstitutional of30of Libya theofpowermadewas However,cycles processpower.” its length to2011 until“full the Thebewasof Constitutionitimbalance.voicesownindeeddirectlyThetheAConstitutionalbyaelected.NTC bodydeprived fewthe Federalists,GNC representativesthe months wouldresponsible200claiming Itby decidedlegitimate defined electedtheThis andnot Committee beforeGNCLibya thedecision this betothereby fora members lead adequatelyright authorityfrom toprovision multi-party people,thedrafting the thecreatedthatfor ofGNCits constitutional transition.60the originaloftheinstead representativea wasrepresented elections,experts thepoliticalnewpeople constitutionalan changedGeneral important Constitution mandateof Theof(20 system,nominated. committee,however,the per otherwise,GNC National through ofEastern andto committee region).and Libya thusthroughoversee lasting in called The Congress andtheanregions becameuntildue effort Federalists the7thforfearedwouldthelegal to a the appointment,demographicAmendment.to draftingnew a to(GNC),conflict, electbelegislativethatcreation appease bodyelected weretheir of isaasof theArticleThetobody the Constitutional Controversies with GNC 30, no the started clear largest Declaration, Aroundareas to grow.and or Articlemost limits provides controversial 30of authority a roadPolicy Brief mapandof the andresponsibility. thirty-seven a strict timeframe Oppositionarticles for of society,withsilentGNC.formeditbeArticleelectionsitsgroups,ofandthe is will itsadoption. responsible transitionalnecessaryuntil the importance,Initially,oncomprise 30 andwith to 7ththe the areinitially draft amended decision-makingits InnewAmendment,organized it to fact,cultural providedstage for60 understandLibya’sauthorities establishedthis membersdraftinganother repeatedly, untilarticle beforeand noConstitution thata language details amendmentarepermanent the wasthatprocess (on theit sometimes electedchallengesrequired permanent atheconstitutional onsource specificities. Constitutionmodelwithincriteriaof basedConstitution toindependence) considering of controversially,Articlearound the Libyanof conflictfor on the referendum.Assembly. nominationthe Drafting30 Article it,60-member Constitution, is Constitution. wouldand betweenthe written nominated 30its varietyinItAssembly be isthealsoToevolution.and onlyandnecessary rival that yearscommitteethen remained ofandBecause ratified,in extent,Libyanpoliticalby would 2014,sincestated thatthe if days constitutionbepopularinsubstantiallyThetwo-thirdsthat its•overseen the 7th fromThearticle vote,decisionsAmendment Constitutionalnewlyreferendum CDAmajoritythethe 10,bymodifyingandin approval issuance theelectedwouldthat: lessnot of Highof thethrough re-defined andvotesthan articlebe ParliamentConstitutionDrafting ofNationalof general tasked the theof 120an 30 the draftappointment referendumAssemblyof Electionsfromthe members,elections withthewould DraftingConstitution powers Constitutionaldraftingholding issue (CDA) Commission would by law.Assemblyplus and thea shallandreferendum its one. by takeGNC. mandate Declaration.thefirst approvingbe wouldplace The (HNEC).electedCDA. election ofmeeting.lessbelaw the madethrough the withinItthan stated, CDAwoulddraft by120 30 aby atTuareg,to60ItElectingelectionsformingprocedureSupremeThese took thatguaranteeingmembers thetimeframelevel, and thethe Courtwith GNC in Tebu CDA andofthe HNEC. severalthe found fair hadwantedvote.was prove constitutional representationexpressed upheld, the Butmonths toto 7th the ensurebe Amendment and principleto extremelyearly committee.draft thethat of on GNCtheminorities theirthey of unrealistic.electoral publicunconstitutional, went hadfears The consequential aheadelectionsbiggestand of law being women.In forwith Februaryquestion underrepresented theas dueplanning theelectionThe voting to method pertained Amazigh,2014issues powerfor of the itsof representativeCDAforThethemselvestheelectionschosen,ofAmazigh,onlyInanyThesewithin therepresentation, the CDA, decision election10%elections end,groups theinstitution which but offromTuareg, CDA, electoralthefrom ofmanyinvolving “failed pusheddid body”, itstheCDA especially the andnot start.and aswillCDA seats: Law toadopted wellpartly satisfy forminorityTebu.boycottthe achieveitselfTuareg Number aas process.six for specificdue The their withfailed proposal.votingseats rightsallthe and toAmazigh demands. the7 identity a desiredto According for Tebuenactedsessionsvery voting mustbuildvoting women, low CDA were andinclusivenessenoughframework,be They frameworkby turnout.and the membersagreed culture-relatedandthedissatisfied choseprogressivelyCarter support GNCtwo Mostthrough to seats according thattowillinCentre, boycott produceLibyansand2014 bethe witheach consensus. disconnect provisions.legitimacyelected allocatedCDA the thistheto fordoa 2014 trulyCDAwhichlevel hadthenot to Context

For over two years the political dialogue that The fact that the Constitution cannot be took place as part of the implementation of the amended for five years once it is ratified render United Nations Action Plan, and other meetings these concerns even more pressing, and in Paris, Abu Dhabi or Palermo, failed to provide encouraged more spoilers to interfere. Eastern a clear roadmap on the electoral process, or factions, Federalists, but also minorities to specify what would be the constitutional and other political actors, have blocked basis of future elections. The constitutional progress on a constitutional referendum process led by the Constitutional Drafting despite the adoption of the law by the House Assembly (CDA), which should have remained of Representatives in November 2018. In the a legitimate and generally accepted track, was absence of strong political will and international progressively marginalized, and hence became backing, the constitutional file has been prone prone to political manipulation. What should to politicization, and ended up frozen. have remained a strictly legal process turned into a political topic and a subject of heated However, most Libyan stakeholders continue disagreement. to agree that a permanent Constitution is the only way to put an end to the years of political Notwithstanding the current conflict, important turmoil, transition, and legal confusion that legal and political challenges remain for the has affected all of Libya’s institutions since the Constitution to be passed to a referendum. 2011 revolution, and which ended up calling Opposition to the 2019 Referendum Law and into question each of these bodies’ legitimacy. the 2017 CDA Proposal itself remains strong While a permanent Constitution will be key to on all sides of the conflict: restoring political legitimacy in Libya, in order to do so the constitutional process in Libya → Key areas of concern in the 2017 should be treated in an objective and rational Constitutional Proposal include: the lack way, removed from ideological or political of constraints on presidential power, the debates, and put back on track through an conditions defined for running for public inclusive dialogue that includes the House of office, inadequate protection of minorities’ Representatives and the High State Council, and women’s rights, the role of religion, weak key powerbrokers on the ground, as well as decentralization measures, and procedural a unified international community. A new concerns over the way the Proposal was Constitution should serve to promote national adopted by the CDA in July 2017; unity and reconciliation, not accentuate divisions. → Key areas of concern in the 2019 Referendum Law include: the division of Libya into three electoral districts, the scenarios in case the Proposal is rejected, as well as the very way the law was elaborated and adopted by the House of Representatives (HoR) in the absence of consensus with the High State Council (HSC). A Constitutional Framework… But Which One? And How?

Due to the lack of progress on the constitutional → The second challenge is to identify referendum track, and faced by its growing what this constitutional framework should politicization, various plans have been unveiled include, and on which basis. The main options over the past months calling for elections to be are analysed throughout this report: returning organized before a durable Constitution is put to the 1951 Constitution or its 1963 amended in place, either through another amendment version; adopting the February Committee to the Constitutional Declaration, or through Proposal of 2014; or adopting just parts of a National Charter adopted during the UN-led the 2017 Constitutional Proposal. Whatever National Conference and endorsed by a UN the basis may be, proceeding to elections Security Council Resolution. without a prior agreement on the constitutional framework will be dangerous for Libya. Holding These options have their values, but also their elections without restrictions on the power risks, both in terms of their content and how of the Parliament and the President, without they are adopted: clear mandates, or based on a document that does not reflect wide national consensus and → The first challenge is to determine a clear legal basis, could only trigger renewed which institution will have the required conflicts. legitimacy to endorse a new constitutional framework ahead of the general elections, in Based on a detailed analysis of various the absence of a referendum, and to amend constitutional options on the table, and on to Constitutional Declaration accordingly. a series of semi-structured interviews with Since 2014, the HoR has been the institution key stakeholders, this report is intended as responsible for amending the Constitutional a technical tool and knowledge basis for the Declaration. However, the 2014 Supreme international community, donors, and anyone Court ruling against the 7th Amendment has interested in this complex but important challenged its legitimacy in doing so, and matter for Libya’s democratic transition. The since then, the Constitutional Chamber of report proposes a two-fold roadmap, and the Supreme Court has been closed. In the formulates a series of technical and legally absence of clear national mechanisms to based recommendations to the international endorse that new constitutional framework, community, meant to put an end to the strong international support and a UN Security transitional period and finally restore political Council Resolution could be the only way to legitimacy in Libya. give it real legitimacy. Option 1 - The referendum track

This option appears as the most “natural” ① Modify the Referendum Law through one, given the current formulation of the consensual discussions between the HoR Constitutional Declaration and the existing and the HSC, in line with the Libyan Political Constitutional Proposal of the CDA. However, Agreement, possibly with support from procedural flaws in the CDA process, substantial the LPD and review the 10th Constitutional concerns about the Proposal, delays and Amendment accordingly, especially to clarify disagreements around the HoR referendum the division in three electoral constituencies law, have all contributed to marginalizing it and the scenario should the Proposal be and calling into question its legitimacy. The rejected. international community until now did not express a clear support for this track. In fact, WHY? the August 2019 Secretary General report The Referendum Law issued by HoR in on Libya states that the goals of the National November 2018 was immediately met with wide Conference were to “adopt a roadmap aimed criticism, especially from the HSC, which claimed at concluding the transitional period through that it was not consulted on its elaboration, and parliamentary and parliamentarian elections, that the process was therefore contrary to the which would include recommendations on LPA. In particular, the two bodies disagreed on how to address the constitutional proposal.” the requirement to explain the reason in case of This phrasing hints that the referendum is no a no vote, on the role of the HoR in case the draft longer considered as the legal and legitimate is rejected, as well as on the division of Libya into way, and that other options to “address it” could three electoral districts - Tripolitania, Cyrenaica be considered. In the current state of affairs, and Fezzan. Many argued that this provision several steps would be needed to conduct was against the Constitutional Declaration, the constitutional referendum in adequate which states the principle of equal citizenship. conditions: Eastern stakeholders, however, supported this electoral division and considered the holding of a referendum based on a single electoral district as anti-democratic due to demographic imbalance between the three regions.

HOW? To overcome these obstacles, dialogue committees could be created in both institutions to review the Referendum Law in a more consensual manner, in line with the LPA provisions. Past efforts of the HSC and HoR to agree on restructuring the Presidency Council in 2018 show that such cooperation can be possible, when both parties have common interest. International support, however, will be key to the process. ② Build political support for this amended ③ Include the National Charter in the Referendum Law through a National Constitutional Declaration to protect its Conference, and encourage buy-in for the provisions from future legal challenges, and referendum process with main political support it with a United Nations Security stakeholders in the National Charter. Council Resolution.

WHY? WHY? High-level political agreement, such as The Constitutional Declaration remains the one that the National Conference could bring, Libya’s legal framework until a new Constitution is necessary prior to the referendum to prevent or is adopted. Integrating the National Charter in the mitigate legal challenges and any contestations Constitutional Declaration would provide it both on the results of the vote. Experience shows legitimacy and legality, preventing possible future repeatedly that democratic majority in Libya is not challenges in courts, especially if the National enough to bring legitimacy to electoral results. A Charter includes references to the Referendum split outcome in the referendum could reignite Law. Otherwise, any outcome from the National political violence, if significant social forces and Conference could easily be legally contested. institutions reject it. HOW? HOW? Including the National Charter in the The National Conference should be Constitutional Declaration can be done through primarily focused on building this strong a new Constitutional Amendment voted by the social political support for the constitutional HoR. However, this could be legally problematic process, more than on fostering national given the position of the Supreme Court on the reconciliation. The National Charter, adopted HoR since 2014. Technically, it will be difficult in the Conference, should serve to set the to have the HoR reach the necessary quorum conditions for the Constitutional Referendum to pass any amendments, given the current and, thereby, for elections themselves, divisions. As an alternative, as with the HoR providing it with the necessary political and election itself, future decisions made at the social backing. Participants to the Conference National Conference and enshrined in the should be chosen with this objective in mind, National Charter could be considered legally and be limited to include committees of the valid through international recognition, with HoR, HSC, CDA, as well as key power brokers support from a UN Security Council Resolution. on the ground. ④ Organize a referendum on the CDA 2017 OR Constitutional Proposal in a timely manner, ↳ The Constitutional Proposal is rejected once sufficient outreach has been conducted and goes back to the HoR to form a committee and when security conditions allow. The to elaborate a new draft and propose it for scenarios in that case are multiple: referendum. This option seems to be implied in the current Referendum Law. However, it can → The Constitution is accepted by the Libyan also be challenged because it implies that the people, ratified by the CDA and endorsed by the CDA is dissolved, which could be considered HoR through a fair and transparent process. to be against the LPA. A national consultation would also be necessary to understand which OR articles were rejected. ↳ The Constitutional Proposal is accepted in a context of insecurity and with a low participation. In this case the vote would not be considered legitimate, it can lead to renewed violence, and even partition if the vote demonstrates large regional disparities.

OR ↳ The Constitutional Proposal is rejected and goes back to the CDA for review and amending controversial articles. However, this may be difficult given that the Referendum Law does not request voters to explain which articles they reject. The CDA may find it hard to reach another consensus in that case, and it will be difficult to reach a quorum. Furthermore, the current referendum law does not clearly empower the CDA to review the draft, and could be interpreted as mandating the HoR instead. A new Proposal from the CDA could thus be rejected or legally contested. Lastly, there is no guidance for what would happen should the draft be rejected twice. Option 2: The “other document” track

If no agreement on the Referendum Law can  Through the National Charter: Adopted be found, including through the National during the National Conference, supported Conference, or if the Proposal is rejected, by a UN Security Council Resolution and the UN and the international community international recognition, the National could move to the second option, and support Charter would also have to be integrated in Libyan stakeholders to adopt another basis the Constitutional Declaration through an for holding elections in the absence of a amendment. This, however, can be difficult permanent Constitutional framework, and to given the HoR’s present divisions. If that were secure its legal basis through a Constitutional to be impossible, a UN Resolution could be Amendment and/or a UN resolution, while also needed to enshrine the National Charter as giving it wider social legitimacy through the the roadmap for elections, without amending National Conference. the Constitutional Declaration, and to confer it international legitimacy. This new temporary basis for elections can be adopted through three different mechanisms:  Through activating article 64 of the Libyan Political Agreement (LPA), and recalling the  Through a Constitutional Amendment voted Libyan Political Dialogue (LPD) after having by the HoR, but with the risk that this vote, if observed violations to the LPA. While this it can ever take place in the current context of option can be seen as a duplication of the divisions, will be constitutionally challenged National Conference, it has the advantage of since the Supreme Court 2014 ruling on the 7th reinforcing the LPA as the sole framework of Amendment; Libya’s transition. The composition of the LPD, however, would have to be revised to reflect current realities. Decisions of the new LPD could serve as a basis for future elections.

Once the mechanism is agreed upon, the options, analysed in depth in the report, include the following. ➊ The 1951 Constitution, amended in 1963. a strictly federalist system could further This option would please the Federalists entrench the fragmentation of Libya and fail and Monarchists, as well as some Eastern to bring national unity. The 1951 Constitution components, but it would raise also important also leaves the door open for the abrogation of challenges from an international law and rights protection in a situation of emergency, human rights perspective, given the legal provides for weak judiciary guarantees, and shortcomings of the document. does not specify relations with international law and conventions. To that extent, it appears ANALYSIS unsuited for Libya’s current needs, rights, The 1951 Constitution has a special democratic aspirations and international place in Libyan history, as the first legislation obligations. that formally codified the rights of all Libyan citizens. Drafted with strong international ➋ The February Committee Proposal. support, the 1951 Constitution established Adopted by the General National Congress a federal system with three sub-national through the 7th Constitutional Amendment, in governments, each with specific executive 2014, the February Committee Proposal sets and legislative branches, and even with the clear mandates, oversight mechanisms and authority to collect taxes. The Constitution of division of powers. Although it was ruled out by Independence was elaborated in a way that the Supreme Court 2014 Decision, the February allows for amendment, the most significant Committee Proposal could still serve as a basis one being made in 1963, when the State's and inspiration for future elections, should the political system changed from a federation to a referendum fail to take place in the near future. centralized state. Due to this ability to change Adoption through the National Conference and evolve, some analysts have argued that this or the Libyan Political Dialogue (LPD) could Constitution could be the basis of Libya’s new, provide it with the required legitimacy. post-revolutionary democratic system, and that the references to a monarchic system of ANALYSIS government could be easily removed through The Constitutional Declaration remains similar amendments in the future. Others even the ruling Constitution of Libya, and benefits argued that this Constitution is, in fact, still from international support and recognition. legally valid, since Gaddafi’s coup in 1969 only The Libyan Political Agreement (LPA), disrupted the application of the Constitution, signed in Skhirat in 2015, reiterates its “full replacing it with the Green Book until the 2011 commitment to the Constitutional Declaration, revolution - but did not cancel it. and to the political process that is based on the principles of democracy and peaceful transfer While the validity of this argument of power.” Article 30, the largest and most can be challenged, the practical question controversial of the thirty-seven articles of the remains of how provisions related to the Constitutional Declaration, provides a roadmap monarchy in the 1951 Constitution could be for the transitional stage until a permanent replaced by a presidential democratic system. Constitution is written and ratified, and until Furthermore, and most importantly, the the new authorities are elected based on the Constitution of Independence does not account permanent Constitution. In 2014, the February for fundamental changes in the Libyan political Committee, a group of legal and constitutional and social landscape for the past 60 years. It experts created through the 6th Constitutional created an imbalance of power and failed to Amendment, was tasked to elaborate a new provide for the fair distribution of wealth among transitional roadmap. The February Committee all three regions. After years of civil conflict, Proposal, comprising 57 articles, calls for a newly elected “House of Representatives” be able to restructure the Presidential Council to replace the GNC, as well as for an elected (PC) from 9 to 3 members. Article 64 of the LPA president to serve as head of State. However, could provide an interesting exit to the current in November 2014 the Supreme Court ruled institutional crisis, by reviving the Libyan Paragraph 11 of the 7th Amendment, adopting Political Dialogue. This solution is particularly the February Committee Proposal, null and interesting should the National Conference fail void, out of procedural violations. This decision to take place in the near future. led to interpretations that the HoR was therefore defunct as well, and that the GNC ANALYSIS thus remained the only legitimate authority. The LPA expired in December 2017, and Others interpreted the effects of the Supreme opposition to its Article 8, according to which the Court decision differently, arguing that as long head of the PC is the head of the Libyan Army, as the electoral law, which was the basis of remains strong - especially in the HoR and in the HoR election, was uncontested, the HoR the East more generally. This explains why would continue to be legitimate because it is the HoR has not clearly and fully endorsed the based on this law, not on the 7th Amendment. LPA, nor fully integrated it in the Constitutional The UN and the international community, Declaration, until now. Some have argued that, notwithstanding the 2014 Supreme Court besides the temporal expiration, the LPA has Decision, seem to have adopted that point of been rendered de facto null and void due to view, repeatedly giving the HoR international multiple breaches and violations, including the recognition and legitimacy until now. fact that four members of the PC have either boycotted or resigned from it. However, the UN While the February Committee proposal and other international parties still consider cannot be defined as a Constitution as such, the LPA as the only legitimate political since it does not include any protection on framework, as was recently reiterated in the fundamental rights and freedoms or judicial September 2019 Security Council resolution guarantees, it provides clear guidelines for prolonging the mandate of UNSMIL. Resorting defining the mandate and relations of the main to the mechanisms of the LPA could serve to State institutions and powers. The proposal form a Presidential Council with 3 members establishes a semi-presidential system, with a to oversee the transition until elections can strong Parliament and a separate government, be organized. This option was attempted by which could be a thoughtful solution to Libya’s UNSMIL in 2017, as part of the UN Action current turmoil. Adopting it, however, would Plan, and then again by the HoR and HSC require overturning the 2014 Supreme Court alone in 2018, but the process was blocked decision. due to the difficulties in finding consensual personalities to form this new executive power. ➌ The full integration of the LPA in the The Legitimacy of this new PC, which would Constitutional Declaration and reactivating not emanate from a popular vote, would also of the Libyan Political Dialogue (LPD). While be likely questioned. the LPA formally expired in December 2017, it remains, along with the Constitutional While the legitimacy of the LPD and its Declaration, the current framework for members is contested, and reconvening them Libya’s political transition and was given after so long could be problematic in the eyes strong international support. The HoR finally of the Libyan people, the UN or the National partly integrated the LPA in the Constitutional Conference could suggest a new composition to Declaration through the 11th Amendment, in the group, adding new legitimate stakeholders November 2018, but only indirectly, in order to who reflect realities on the ground. Decisions of the LPD would thus gain more weight and Opening a new debate on the CDA legitimacy. A UN Security Council Resolution Proposal, to amend it or choose specific could help to support this option. parts of it for referendum, is currently being suggested by some CDA members, and could ➍ A national referendum on some parts of indeed lead to a more consensual version that the 2017 Constitutional Proposal only, for would get more political support for passing it instance on those related to the organization to a referendum. Minorities and Federalists, of executive and legislative powers, to allow among others, remain strongly opposed to for the organization of election, while the rest this Proposal and continue to argue that the of the text will be decided upon by a newly CDA vote in July 2017 was not legal. They will elected and more legitimate Parliament. This continue to block the referendum, fearing was recommended by some participants to that, due to majority rules, their views will not the National Conference preparatory process, be reflected. A revision of the Proposal could and is currently advocated by various CDA lead to modifying some controversial parts, members themselves. including with regards to the conditions for running for presidency, decentralization, or ANALYSIS the rights of minorities. However, it is not clear This option has the advantage of taking that this revision is legally possible, once the the process forward, while leaving controversial Proposal has already been submitted to the points to be decided upon at a later stage when HoR. Nothing indeed in the Constitutional security and political conditions allow, and once Declaration plans for the possibility of more support is built for the process. However, withdrawing the draft after its adoption by the it can be legally problematic, as nothing in the CDA and the HoR. Constitutional Declaration states that the work of the CDA can be divided in parts, or how to do so. The Constitutional Declaration, and the LPA, would therefore have to be revised to allow this option to proceed. There will also be complex legal and political debates about which parts to put to vote, and which ones to discuss later. The 2017 Proposal would have to be legally “withdrawn” from the HoR as well. There is no perfect solution. But the analysis » Presidential elections first provided in this report shows that a clear The risks are even bigger for presidential constitutional and legal basis that enjoys the elections, which, more than any others, require full support and agreement of Libyans is a a clear definition of the terms, mandate and necessary prerequisite for any future elections. responsibilities of the elected candidate. It is crucial that neither the constitutional basis So far, these can be found in the February of the election nor its outcomes are subject to Committee proposal, which would have to be any strong doubts about their legitimacy, and reactivated to allow for presidential elections can be accepted by the clear majority of the to take place before the Constitution is population. adopted. But this reactivation of the February Committee Proposal can raise legal and Should none of the options above be adopted, practical challenges since it was annulled conducting presidential or parliamentary by the Supreme Court decision on the 7th election presents important risks, and similar Amendment, and after the 8th Amendment challenges. conferred all presidential powers to the HoR. Voting districts would also have to be clarified » Parliamentary elections first to ensure a geographical balance between According to the Constitutional Declaration’s each region and avoid electing a President 9th Amendment and the LPA, the HoR remains by one region only, which could trigger more the only legitimate legislative body until a new violent conflict. Constitution is adopted. As a consequence, electing a new Parliament in the absence of a Constitution would require amending both the Constitutional Declaration and the LPA. An electoral law would also need to be adopted through consultations between the HoR and the HSC. These steps would have to be carefully thought through. Indeed, as witnessed in 2014, parliamentary elections can be a source of conflict, especially in the current political context. Electing a new Parliament without a constitutional basis would only prolong the transitional period for an indefinite time, potentially exposing Libya to new security challenges. Conclusions

Elections in a democracy are meant to facilitate non-violent transfer of power. They structure political contests among opposing forces through pacific means. However, they need to be supported by a coherent institutional framework to ensure a fair, transparent and open voting process. In the absence of a legal framework to establish the rules of the electoral game, including the term limits and the mandate, elections can prove to be a source of conflict.

Holding elections that might produce a body without checks on its powers, which fails to adhere to rules and procedures of states and institutions, is highly dangerous in Libya. No “blank cheque” should be handed to any future elected body. A constitutional basis that enjoys the full support and agreement of Libyans is a prerequisite for any future elections.

The analysis conducted throughout this report has shown that such consensus is very hard to find, and that legality and legitimacy in Libya have become elusive at best. To exit the current crisis and find lasting peace, Libya urgently needs to find a new source of political legitimacy.

The views in this report are those of its writers, and do not reflect those of the ABA or the USAID.