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By Sami Zaptia.
London, 4 August 2021:
The House of Representatives (HoR) failed to pass the election law to elect Libya’s president through a direct popular vote during its Monday and Tuesday sessions.
Indeed, the debate was very divergent on some points of the draft election law, with members setting varying degree of criteria for Libya’s next elected president. Often, the debate was perceived by observers to be about how to prevent specific personalities from being elected.
There were members who felt the next directly elected president should not hold another nationality/passport and those who did not want a military personality (Khalifa Hafter) to be able to stand without having first given up their military post. Some wanted the military post to have been abandoned by several years prior to being elected.
Whilst there were others who insisted that those wanted by the International Criminal Court (Saif Al-Islam Qaddafi) should be able to stand debate veered between whether the president could hold a foreign passport.
The session was ended until the next meeting – probably next week.
The debate on the urgently needed 2021 budget had been postponed from the start – at the request of the government as it was making further amendments.
However, during the debate on the presidential election law it was announced that the government had presented its latest updated draft budget totalling LD 111 billion.
The draft law for electing the president through a direct popular vote
During the sessions, discussion of the draft law to elect the president through a direct popular vote centred on the first article of the law related to the conditions for running for the position of head of state. This article is considered by many members to be the centrepiece of the law and one of its most important articles:
Conditions of candidacy:
Article 1
To be a Libyan, Muslim and of Muslim parents.
There was general agreement on this point.
Article 2
Neither the candidate’s parents nor his wife should have held the nationality of another country.
Most of the members supported this condition, but several members had reservations about this issue and some of them see that the nationality of the parents has nothing to do with a candidate.
Article 3
The candidate should not be married to a non-Libyan.
Most members agree with this condition, and a few had reservations about it.
Article 4
Candidates must have at least a university degree or its equivalent.
Most members agree with this condition, with an emphasis that the qualification is from one of the accredited universities.
Article 5
Candidates shall enjoy their civil and political rights.
Most members agreed with this condition.
Article 6
Candidates must not have been convicted of a felony or a crime involving moral turpitude or dishonesty, even if they had been rehabilitated.
There was a difference in viewpoints on this point. Some members believed that final rulings may have been issued against the candidate to be exclude them from standing. Others wanted to stress this condition so that it includes even those who have been accused in corruption or other cases and are being investigated or their case has been referred to the courts for consideration.
Article 7
Candidates should not be less than 40 years old.
Most members agree with this condition, with some emphasizing the need to set an upper age limit either by the candidate reaching the retirement age or 75 years as a maximum.
Article 8
Candidates should not have a physical or mental illness that would affect their performance of the duties of the head of state.
Most members supported this condition with the deletion of ‘‘physical illness’’ as they considered it a kind of exclusion for a segment of society, especially for those whose physical injuries did not hinder them from carrying out the duties and tasks of the position.
Article 9
Candidates must submit a declaration of their immovable and movable assets inside and outside Libya, as well as those of their spouse and minor children.
Most members approved this condition but demanded that the word minors be deleted.
The Libyan Political Agreement: need for consensus between the HoR and High State Council
Several members emphasized the need to adhere to the (2015 Skhirat) Libyan Political Agreement (LPA) and the need for coordination with the High State Council (HSC) regarding the election laws so that this would not obstruct the 24 December electoral process.
In response to this, HoR head, Ageela Saleh said the HoR represents the only legislative authority in Libya and therefore it is its duty to issue laws, and it is not obliged to consult with any party.
However, some deputies responded, and asked again: what is the fate of the Libyan Political Agreement in this case, and what if these laws are obstructed, and what is the extent of their impact on the 24 December electoral process.
Analysis
It must be kept in mind that there is debate as to whether Ageela Saleh’s interpretation of the LPA is correct.
Does the LPDF Roadmap supersede the LPA on elections?
His reading of the LPA holds that the new Libyan Political Dialogue Forum’s (LPDF) Roadmap supersedes the LPA in that it makes the holding of the 24 December 2021 elections mandatory, and that no prescription can contradict this – including the HSC. The holding of the elections is also backed by UN resolutions.
Specifically, this reading of the LPDF holds that the LPDF Roadmap, which gave birth to the new Government of National Unity, the Presidency Council and the 24 December 2021 elections, has prominence over the LPA and makes no specific reference to the HSC or consulting it on election laws. They point out that the amended Transitional Constitutional Declaration and the LPA make no reference to the 24 December elections and that the HSC recognizes the LPDF’s Roadmap and the holding of elections on 24 December 2021.
Many HoR members hold this view and see the drafting of laws as the exclusive concern of the HoR.
The HSC view
The HSC disagrees with this reading. They insist the LPDF does not contradict the LPA and therefore, the HoR can only move forward with their consent.
The HSC object to holding elections without first holding a referendum on the draft constitution. It also objects to the electing of the president through a direct popular vote, preferring the president to be voted by parliament.
Critics also say that the next elections will end the existence of the unelected HSC which was created in exceptional circumstances in the 2015 LPA after the militia coup of 2014. They are, naturally, not keen to end their existence as an unelected body by hastening elections.
No functioning constitutional court
The problem is that Libya does not have a functioning constitutional court to rule on these issues which continues to hold the country in a political quagmire.
HoR Committee completes drafts of 2021 election laws at Rome meeting | (libyaherald.com)
For detailed background to the ‘‘constitutional basis’’ controversy see:
HoR Committee arrives in Rome for four-day deliberations on election laws | (libyaherald.com)
Over 51,000 new voters recorded on the electoral register | (libyaherald.com)
Hafter calls on Aldabaiba government to implement the Berlin Agreement in full | (libyaherald.com)
HoR has begun preparing election law: Saleh to Kubis | (libyaherald.com)
