Libyan Congress Blunders Constitutional Moment

—Lorianne Updike Toler, Esq., Lorianne Updike Toler Consulting & The University of Pennsylvania Law School

The April 10 vote by the General National Congress of Libya amending their interim Constitutional Declaration was incredibly short-sighted.  Instead of fixing the largest problem with the Declaration, the GNC dealt with the issue for which they were receiving the most political heat: popular elections rather than GNC appointment of the constituent assembly that will write Libya’s constitution.

While Libya has many advantages, including a sophisticated intelligentsia, a returned and educated Libyan diaspora, and a respectful international community, they lack political and consensus-building experience—not to mention constitution-writing experience—thanks to 42 years of Gaddafi rule.  Their inexperience is demonstrated by the poor drafting and, now, poor amending of their interim Constitutional Declaration.

The Constitutional Declaration, passed by the interim National Transition Council on August 3 of 2011, initially provided the constituent assembly with 60 days to write the constitution.  The constitutional timeline was later amended by the NTC to allow 120 days.  Thereafter, the Declaration stipulates 30 days in which to stage a national referendum.

Few successful constitutions have been produced in so short a period.  True, the United States Constitution was drafted in four months, but this time period is somewhat deceptive.  It does not include the additional three years required for ratification in all thirteen states.  It also does not include the decade of constitution-writing experience in drafting the Articles of Confederation and the various state constitutions the Framers brought with them to Philadelphia.

A shorter timeframe is possible where consensus reigns, as in Namibia.  There, the constitution of 1990 officially required under two months to complete.  Yet this was after a draft had been worked on for two years and then abandoned, and then after all political parties represented in the constituent assembly had submitted drafts.

Libyans have neither the drafting experience nor the consensus to make a four-month plus one timeline work.  More time would allow compensation for the lack of experience through drafter capacity building.  Without added time, Libyans are left with two unattractive alternatives—heavy reliance on foreign expertise or, more likely, shoddy craftmanship that will probably require re-drafting within a generation. 

The lack of consensus is easily demonstrated by reviewing the slow progress of the GNC on key issues such as security and their recent exclusionary law.  Yet even more divisive issues will need to be dealt with in a constitution, including the distribution of oil revenues, the role of sharia, and federalism. 

Additionally, four months will not allow for any kind of meaningful public participation in the process, the litmus test for legitimate contemporary constitutions.  Currently, Libyans’ participation in the constitutional process extends to electing the constituent assembly of 60 and voting on a final draft via referendum.  This means that the months of work by various civil society organizations—including the Foundation for a Democratic Libya, the Benghanzi Research Center, H20, and Lawyers for Justice in Libya among others—collecting public opinion on the constitution will be wasted. 

A four-month drafting period also means Libyans will not be able to review a draft constitution before it is put up for referendum.  Without consulting the people on the contentious issues listed above, a referendum could very well fail in the first attempt.  A second attempt is allotted only 30 days under the Declaration.

The Declaration had to be amended to accommodate elections, a promise the GNC made to federalists prior to the threatened February 15, 2013 uprisings (the anniversary for much of the 2011 revolution).  Although the GNC voted to comply with one of the Declaration’s controversial amendments and host elections, the amendment was later invalidated by the Libyan Supreme Court.  The only way the GNC could keep their promise, then, was to re-amend the Declaration.  

Instead of using the moment to fix the major ailments of the Declaration, such as the timeline, the GNC chose to focus only on the issue of elections. For many within the GNC, this short-sightedness is intentional. Members have expressed to this writer that they are aware that the “street” already wishes them gone.  They fear that extending the constitutional timeline would be viewed as an act to extend their own power.

Without stronger leadership from the GNC, it is up to Libyans themselves to demand a voice in their constitutional process.  Just as they have in demanding elections, Libyans must also require the GNC to lengthen the constitutional timeline—enough to include them in the process.

Suggested Citation: Lorianne Updike Toler, Libyan Congress Blunders Constitutional Moment, Int’l J. Const. L. Blog, May 4, 2013, available at: http://www.iconnectblog.com/2013/05/libyan-congress-blunders-constitutional-moment