Op-Ed: No to aborting the political process and wasting the LPDF Roadmap compass

By Zahra’ Langhi.

23 March 2021:

Analysts who follow developments in the Libyan scene and the positions of some parties are surprised about whether there is an attempt to abort the current political process and prolong the period of a situation to serve private agendas, by failing the role of the Libyan Political Dialogue Forum (LPDF), in general, and the Legal Committee in particular as a guarantor for holding the elections as scheduled on December 24th, 2021.

If this is true, it will have dire repercussions on Libya’s stability, and it will represent a setback and a waste of all the cumulative achievements that have been made. This calls for us to take a firm and serious stance, the most important rule of which is the adherence to the Roadmap and the supervisory role of the LPDF.

In conjunction with the nomination of the Executive Authority by the Libyan Political Dialogue Forum (LPDF) in Geneva, a change occurred in the leadership of the United Nations Support Mission to Libya (UNSMIL) by appointing a new Special Envoy and Head of UNSMIL, Mr. Jan Kubis, in place of the former Acting Envoy, Mrs. Stephanie Williams, which coincided with an interruption in the work of the LPDF.

We have noticed a freeze on the political process. This concern was expressed by Mr. Emad Al Sayeh, Head of the High National Election Commission of Libya (HNEC) by saying that the UNSMIL’s consultations with the Legal Committee of the LPDF on the constitutional rule related to the elections are almost stalled. He also indicated that there is ambiguity in the current situation and the positions of some political parties towards holding elections. He also indicated that the HNEC fully disclaims its responsibility for delaying the fulfilment of this entitlement. He demanded that the Government of National Unity (GNU) have the actual will to develop an implementation plan for the electoral process.

Three trends of concern have emerged recently, which can be summarized as follows:

1. The claim that the mission of the LPDF has ended with the naming of the Executive Authority.
2. Demanding the termination of the role of the Legal Committee and the formation of a legal committee from outside the LPDF by the House of Representatives (HoR) with the facilitation of the UNSMIL to begin preparing the constitutional rule and issue the necessary legislation for the elections, in contravention of the deadlines specified in the UN Roadmap. This is taking into account that the HoR is one of the parties that have an interest in the sustainability and prolongation of the current situation.
3. The demand to limit the elections to parliamentary elections and the extension of the current executive authority for a period of four years to flagrantly exceed the specified transitional period of eight months and to oblige the next Parliament to give confidence to this Executive Authority even though the LPDF is the one who nominated it and defined its tasks within the context of unifying state institutions and supervising elections only.

LPDF Starting Points

In January 2020, the Berlin Conference on Libya was launched and called for a political track based on the Libyan Political Agreement (LPA) to address the political impasse. The UN Security Council approved this in Resolution 2510 (2020). This resulted in the establishment of the LPDF. The Berlin initiative was based on Article No. (64) of the LPA, which stipulates that ‘‘the 3 Libyan Political Dialogue may convene after the adoption of this Agreement at the request of any party to the Agreement to examine what it deems a severe breach to one of its items’’.

The LPDF was mandated to lay down the Roadmap for the Preparatory Phase of a Comprehensive Solution aimed at holding elections on December 24, 2021. The first Article of the Roadmap stipulates in the first paragraph that «the overarching objective of the Preparatory Phase is to strengthen the political legitimacy through presidential and parliamentary elections on a constitutional rule». Therefore, the role of the LPDF is to achieve the return of legitimacy to the Libyan nation, as it is the owner of the powers. This means that all new representative and sovereign bodies emanate from the will of the Libyan nation.

The entitlements of this Preparatory Phase include restructuring the Executive Authority by separating the Presidential Council from the Government and naming both of them. This happened after setting criteria for candidacy and a selection mechanism that the LPDF agreed upon. A document was drawn up defining the responsibilities of the Executive Authority and the priorities for its work. It was stated in the section on the Executive Authority in its first article that ‘‘the unified Executive Authority emanating from the Libyan Political Dialogue Forum shall be bound to organize Presidential and Parliamentary Elections within the dates specified for the Preparatory Phase of a Comprehensive Solution’’.

The outcomes of the LPDF were not limited to defining the overarching goal of the Preparatory Phase, which is to strengthen the political legitimacy through presidential and parliamentary elections, but the Roadmap laid down the timeframe for reaching the general elections. Article No. (3) of the Roadmap states the following:

(1)- The Preparatory Phase for a Comprehensive Solution shall begin from the declaration of the outcomes of the Libyan Political Dialogue Forum held 4 in Tunis in November 2020.

(2)- The Preparatory Phase for a Comprehensive Solution shall end with the holding of presidential and parliamentary elections, in accordance with the constitutional process, on 24 December 2021.

(3)- The LPDF shall follow up on the progress of issues of the Preparatory Phase according to the specified dates.

The following items also came in Article No (4) of the Roadmap regarding commitment and deadlines:

(1)- All state institutions shall work to fulfil their obligations on schedule. They shall be held accountable for their work before the Libyan people.

(2)- In the event that the required decisions cannot be issued within the specified deadlines, these decisions shall be referred to the LPDF to take action.

(3)- The LPDF shall meet periodically during the Preparatory Phase. Its meetings shall be facilitated and supported by UNSMIL.

(4)- Should the need arise, the LPDF shall convene upon a proposal of 25 of its members or upon an invitation by UNSMIL.

Constitutional Arrangements and the Role of the Legal Committee

Constitutional arrangements are a major entitlement of the Preparatory Phase. It is an integral part of the Roadmap. It is based on what the first article of the Roadmap decided in the first Paragraph that ‘‘the overarching objective of the Preparatory Phase is to strengthen the political legitimacy through presidential and parliamentary elections on a constitutional rule’’. In addition, it is based on what the Roadmap stipulated in Article No. (4), Paragraph No. (1): The institutions concerned with the constitutional process shall agree to 5 accomplish the constitutional arrangements within a period not exceeding 60 days from the beginning of the Preparatory Phase; and Paragraph No. (2): The Libyan Political Dialogue Forum (LPDF) shall set up a Legal Committee to follow-up on the progress in the constitutional process. The LPDF shall define the structure and functions of the Legal Committee; and Paragraph No (3): In the event of expiration of the period specified in Paragraph 1 of this Article, without achieving the required result, it is for the LPDF to decide on the progress of the constitutional process and the legislation needed for achieving the elections.

The Legal Committee has started its work within this framework since December 20. An internal organizational bylaw has been drawn up defining the powers and authorities. Seven proposals were submitted in this regard. Then the committee embarked on working to prepare a consensual constitutional rule based on the amendment of the Constitutional Declaration.

It should be noted, however, that I have reservations about the constitutional rule proposal for fundamental reasons that require a special Op-Ed. Nevertheless, there was keenness to continue the work within the committee based on the conviction of the importance of the team’s work. However, controversy and division occurred in the committee regarding the relationship of the constitutional rule with the constitutional process. Some attempted to grant immunity to the constitution-drafting project and the Constitution Drafting Assembly for another five years, that is, until the middle of the next decade. This made us seek the advice of the official UNSMIL, headed by the General Coordinator and the Special Envoy on this matter. The issue was resolved through a statement that the committee does not have the competence to address the constitutional process, but rather to focus only on establishing a constitutional rule for holding the elections.

In all cases, the constitutional rule must adhere to basic principles, whatever their nature. Among these principles are the following:

1. Overcoming the formulas of arbitrary correlation between any 6 entitlements that may result in an avoidable aggravation. An example is the disengagement between holding national elections and the referendum on the draft constitution.
2. Rejecting the constitutionalization of disputes and prejudices.
3. Avoid holding the referendum at this stage, which may contribute to an increase in tension and cause a setback in holding the elections.
4. Empowering Libyans to participate, exercise the right to vote, cast their vote, and elect their representatives as a duty and a right at the same time, with regard to the legislative and executive authority.
5. The independence of the executive, legislative and judicial authorities and their non-interference, which is {interference and lack of independence} the basis for the complete collapse of the state and one of the reasons for the spread of political corruption during the past decade.
6. Inclusion of the political process and the constitutional rule, ensuring the representation of geographical balances of the three provinces of Libya, safeguarding the rights of all cultural components, and the representation of women in future representative councils by a percentage of not less than 30% according to Security Council Resolution No.(1325).
7. The need to ensure that all entitlements and the elections themselves are safe, legal and legitimate.

Conditions that must be met to ensure the realization of the constitutional arrangements

In order to implement the constitutional arrangements, a suitable climate must be in place to allow this. The following are the most important conditions that must be met to create this climate:

• Continuing to unify state institutions. This is achieved by rigidly implementing the provisions of the Roadmap, accurately and promptly, while ensuring that the deadlines stipulated are respected.
• Intensification of efforts exerted to establish security. Perhaps the most important steps that must be taken in this regard is ending the chaos of arms proliferation and the hegemony of armed brigades. It is a priori that elections should be avoided in a landscape of gun chaos and impunity.
• Enhancing community conciliation and unity, and prior commitment to the election results. This is achieved by abandoning the sharp polarizing rhetoric that reinforces the state of divisiveness. Perhaps the best mechanism for implementing this is the conclusion of a national charter that stems from the LPDF.
• Drafting fair and flexible mechanisms for the electoral process to secure the participation of all, to ensure that candidates will participate in the elections and citizens will go to the ballot boxes. This includes giving priority to solving the problems of the Forcibly Displaced Persons (FDPs) and the Internally Displaced People (IDPs).
• The existence of international monitoring committees, and the provision of international guarantees, to achieve a peaceful handover and rotation of power. This includes setting and announcing penalties for blockaders in advance.
• Enabling community monitoring. This is achieved through civil society organizations assuming their role, engaging and contributing to awareness-raising. It also comes through its involvement in monitoring.
• Removing and addressing ambiguities in the Roadmap. This can be achieved by enhancing the clarity of the mandate and tasks of the LPDF, its organizational framework and its internal regulations, to consolidate its institutional resilience during the preliminary stage, so as not to increase the state of institutional turmoil that the country suffers from. Furthermore, consideration should be given to establishing a mechanism to settle disputes related to the interpretation of texts in order to avoid a repetition of the impasse scenario of amending the LPA.
• The commitment of all concerned parties to the Preparatory Phase to full transparency, which guarantees the preservation of the legitimacy of the exerted efforts. This includes strict confrontation with all illegal and corrupt practices in all its forms, especially the influence of political money.

Recommendations

Based on all of the above, I recommend the following:

• The UNSMIL urges the House of Representatives (HoR) to convene to approve the outcomes of the LPDF and include them as one package in the Constitutional Declaration.
• Ensure that members of the Executive Authority, both in the Presidential Council and the GNU Cabinet, submit financial disclosure statements to the supervisory authorities, in accordance with the conditions for running for the functions of the executive authority.
• The necessity for the continuity of the LPDF, in order to continue to exert pressure on the two Chambers to reach consensus on the 9 constitutional rule and the selection of the seven sovereign positions. Otherwise, both issues are referred to the LPDF as soon as possible.
• The urgent need to convene the Libyan Political Dialogue Forum (LPDF) as soon as possible to send a message to both Chambers that they will continue to monitor their deliberations. It is necessary to hold a meeting in early April to decide on (1) the constitutional rule, (2) the selection of the seven sovereign positions, and (3) the monitoring mechanism that will be used to monitor the achievements of the new Executive Authority according to the Roadmap. In accordance with the provisions of the Roadmap, “should the need arise, the LPDF shall convene upon a proposal of 25 of its members or upon an invitation by UNSMIL”. In this regard, 40 signatures of LPDF members were collected to hold a session. However, this did not resonate with the new UNSMIL administration.
• The need to preserve the Libyan ownership of the political process. In this context, changing the leadership of the United Nations support Mission to Libya (UNSMIL) should not be a justification for changing the approach and strategy of the political process. Great efforts have been made at the Libyan Political Dialogue Forum (LPDF). Many achievements have been made and accumulated. We need to build on them to reach the ultimate goal of the Preparatory Phase, which is to strengthen the political legitimacy through holding the Presidential and Parliamentary Elections.
• It is imperative to have a clear international will to fulfil the obligations of the Roadmap in order to reach the elections as scheduled, with international engagement headed by the countries that participated in the Berlin process.