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The Way Out: Libya’s 12th Constitutional Amendment and Entitlements

On 10 February, the Libyan House of Representatives (HoR) lodged a vote of no-confidence in the new Libyan government headed by Fathi Bashagha. However, a significant legislative step was taken earlier with the HoR approving a roadmap and incorporating it into the 12th constitutional amendment establishing, in its 11 articles, a framework that regulates the process of drafting a permanent constitution or a provisional constitutional rule, develops an approach for the promulgation of referendum bills and laws of general elections, and restructures the High National Election Commission (HNEC).

Permanent Constitution or Provisional Constitutional Rule?

The 12th Constitutional Amendment charted three paths meant to build consensus on constitutional grounds. Two of these paths are geared towards the endorsement of a permanent constitution while the third aims at approving a provisional constitutional in case the other two paths fail. These paths are:

Path One: Setting up a Committee to Amend the Permanent Draft Constitution

This path involves putting the draft constitution drawn up by the Constitution Drafting Assembly (CDA) to a popular referendum after amending the controversial articles. The constitutional amendment included a detailed elaboration of the controversial articles’ amendment process before submitting it to a referendum, where it defined the provision for the establishment of the committee, its duties, and general framework for action committee, as follows:

  1. Establishment of the Committee: The committee shall comprise 24 members of experts and specialists, equally divided between Libya’s three historic regions (i.e. Cyrenaica, Tripoli, and Fezzan). The Libyan High Council of State (HCS) and the HoR will equally share choosing members of the committee, taking into account cultural diversity. The amendment also provided for the committee to seek assistance from whomever it deems appropriate towards fulfilling its mission.
  2. Duties: According to the Amendment, the main task of the committee is “reviewing the controversial articles in the draft constitution completed by the CDA and introducing the necessary amendments.” Besides this, the committee is entrusted with electing its chair, vice-chair, and rapporteur and drafting its internal regulations.
  1. The General Framework of Action: Article 4 of the Constitutional Amendment established that the city of Al-Bayda be the permanent headquarters of the committee, given the symbolism the city signifies and it being the CDA headquarters. The article also permitted that meetings of the committee could be convened in any other city. When it comes to timing, the committee is supposed to hold its first meeting within 15 days from the date of the amendment, i.e. before 26 February, fulfill its initial task, and then move towards accomplishing its main task, i.e. “making the amendments” within 45 days of holding its first meeting which shall be convened no later than 13 April. If the committee manages to complete these tasks within the specified timeframe, the draft amended constitution shall be referred to the HNEC to be put to a popular referendum, and be adopted as a permanent constitution for the country if it is voted “yes” on by a percentage of 50+1 votes in each of the three historic regions.

Path Two: Re-Amendment of the Constitution by the CDA 

The constitutional amendment established that the draft constitution be returned to the CDA if the amendment submitted to popular referendum did not meet the quorum, i.e. 50% +1 votes of eligible votes in each of the three historic regions or if the referendum outcome was negative, i.e. 50% +1 votes voters rejected the proposed amendment.    

If either of these scenarios materialize, the CDA shall undertake the task of re-amending the draft permanent constitution, within a period not exceeding 60 days from the date of announcing the outcome of the first referendum. If the committee accomplished its task within the specified timeframe, draft amended constitution shall be referred to the HNEC to be put to a popular referendum and be adopted as a permanent constitution if it is voted “yes” on by a percentage of 50% +1 votes in each of the three historic regions.

Path Three: Forming a Committee for Drafting a Provisional Constitutional Rule

If the previous two paths got bogged down, the constitutional amendment established that a provisional constitutional rule be developed by a committee to be formed by the HoR and HCS. If the Committee for Amending the Draft Permanent Constitution didn’t manage to accomplish its work, a Committee for Drafting a Provisional Constitutional Rule shall undertake this task. If the CDA fails to conclude its work within the specified timeframe or if the outcome of the second referendum was negative, the CDA shall be dissolved and the Committee for Drafting a Provisional Constitutional Rule will take over this task.

The 12th amendment regulated the process of setting up this committee and defined its tasks, with the HCS and HoR assigned the task of forming it. The committee’s main task is centered on developing a provisional constitutional rule by consensus between the HoR and HCS members and its work shall be accomplished within a maximum period of 30 days from the expiry date of the time limit set for the Committee for Amending the Draft Permanent Constitution and the CDA, without them referring their proposals to the HNEC for a referendum or from the date of announcing the negative outcome of the second referendum on the proposal by the CDA.

The constitutional amendment established that the provisional constitutional rule be valid for one presidential-parliamentary session, and the HoR and HCS shall commit to ensure this. The draft constitution prepared by the CDA shall be referred to the elected legislature for consideration towards approving the country’s permanent constitution.

Governing Contexts

In essence, the 12th Constitutional Amendment reflects a tendency towards addressing issues that have long represented a catalyst for disputes and a source of controversy between the competing parties in Libya over the past eleven years. The amendment was clear on adopting region-centric representation in the upcoming elections and building on consensus between HoR and HCS in managing this phase, much less other principles that will shape interactions of the Libyan scene within the upcoming months. These principles include the following:

  • Region-Centric Representation: The constitutional amendment laid down the principle of “region-centric representation” as a basic underlying dynamic governing the transitional phase. It set the representation of the three historical geographical regions as an organizational criterion for developments of the next phase. As such, we find that representation in the Committee for Amending the Draft Permanent Constitution is equally divided among representatives of these regions, notwithstanding requiring them to be experts and professionals. The amendment didn’t fail to refer to the need to ensure cultural diversity, another approach to addressing the problematic issues of region-centric representation.  

The adoption of region-centric representation manifested in the requirement that the draft constitution receives majority approval (50 %+1) in each of the three regions, which requires the amendment committee and the CDA to make sure the forthcoming constitutional articles are acceptable enough to all Libyan components and regions, as consensus has become imperative for the constitution to be put to referendum.  

  • Resorting to Consensus: Provisions of the 12th Amendment reveal an implicit agreement between the two committees concerned with developing the roadmap in the HoR and HCS to build consensus between them in managing the transitional period, which is considered a return to what the 2015  Skhirat Agreement established yet in a clear constitutional formula and on specific issues, including drafting legislation regulating the referendum and general elections and restructuring the HNEC and rectification of its legal status.

Beyond this, there is the task of setting up the Committee for Amending the Draft Permanent Constitution, which will equally include members of the HoR and HCS. This will be the first step towards putting forward a permanent draft constitution to popular referendum. Failure to take this step will entail approving a provisional constitutional rule, a step that requires the HoR and HCS to reach consensus to proceed through the sixth transitional phase successfully.

  • Establishing a Timeframe: The 12th Amendment placed emphasis on defining time limits for all stages of the roadmap. The whole process is estimated to not exceed 14 months from the date of adoption of the 12th Amendment. Therefore, by April 2023 the Libyans will have approved their permanent constitution or a provisional constitutional rule towards conducting presidential and parliamentary elections.

Notably, the first path is supposed not to take more than 60 days and the same goes for the second path, whereas the third path shouldn’t take more than 30 days. Therefore, the entire timeframe for these three paths should not exceed 150 days, i.e. five months, while the remaining term of the transitional phase, estimated at about 270 days, i.e. nine months, is necessary to refine the Civil Registry Authority (CRA) and voters’ records at the HNEC. The CRA and HNEC demonstrated the capability of shortening this period if the necessary allocations and security are available 

In short, the 12th Constitutional Amendment takes Libya to a critical juncture that could help the country get out of the successive phases of conflict and the several transitional phases it has been going through. The paths that have been developed and the relevant governing contexts are demonstrative of the desire to address the problems that have long squandered the opportunities for Libya to recover for about 11 years. That said, the success of the “parliamentary roadmap” remains subject to the ability of the competing parties to see their way to confront the new actors influencing the future of settlement in the struggling country, Libya.

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