This section further illustrates how the 2011 uprisings, and the transitional period that followed, were only a partially critical juncture for Libya. Because of deeply rooted predicaments that were not widely addressed or debated, over time the schisms that were already present in society became more evident. Thus, what actions NGOs could have undertaken to influence the building of new institutional models was inhibited because political decisions in the transitional period often reinforced these path dependent trajectories. In particular we observe clear path dependent outcomes when it comes to treatment of minorities, the absence of national unity, and the marginalisation of civic organisations.
The FDL launched a national initiative in January 2013 entitled “Nebbi f Dostoory” (My Demands in the New Constitution). The project provided the main source of empirical data on
81 Gilbert Doumit and Carmen Geha, “Libya’s Constitutional Twilight,” SADA Journal
http://carnegieendowment.org/sada/index.cfm?fa=show&article=49807&solr_hilite, (accessed April 21st 2014).
82 Workshop by International Centre for Non-profit Law and UNDP on a new NGO Law for Libya, notes taken from statements by representatives of 25 NGO members, attended by author, Tripoli, June 2013. 83 Libya still has no NGO law and current organisations are operating in a legal vacuum, activists fear that this freedom can be taken away from them by the new government unless GNC is able to pass a law during its current term. In my survey 61% of respondents supported that government has a role in regulating NGOs. Notes from workshop by International Centre for Non-profit Law and UNDP on a new NGO Law for Libya, notes taken from statements by representatives of 25 NGO members, attended by author, Tripoli June 2013
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citizens’ expectations and public demands vis-à-vis the new constitution.84 It was carried out
through 15 semi-structured ‘dialogue’ events organised as focus groups in locations across the country. The topics for the dialogue sessions were based on an initial set of focus groups held between July 2011 and February 2012 which had highlighted five priority issues: (i) the role of Shari’a and Islamic Jurisprudence, (ii) the meaning of freedom and equality, (iii) the shape of the political and administrative system, (iv) the role of minorities, and (v) women’s rights.85 The focus
groups also mapped specific priorities by region. Participants in the FDL sessions mentioned that oil and natural resources were their priority in the East, justice and reconciliation was their priority in the West, and citizenship and immigration were their priority in the South.86
The dialogues explored these issues in more detail with a sample of 900 participants between February and March 2013.87 The participants included (i) people from all regions of the East, West and South of Libya,88 (ii) representatives of tribal leaders, (iii) civil society activists, journalists, intellectuals and academics, (iv) business leaders, and (v) women and youth groups.89 The dialogues were based on a structured approach asking participants to list priorities, define their preferences and address key issues they wish to see addressed in the constitution.90 The participants were then invited to debate three key issues (i) The System of Governance, (ii) Public Liberties, and (iii) Regional Priorities. These three axes would indirectly cover the five issues that emerged
84 The field work documenting the results of the constitutional dialogue was carried out in three phases: the first phase was an initial mapping of priorities using consultations mainly in Tripoli and Benghazi between July 2011 and February 2012, the second more substantive phase was carried out between January and March of 2013 in 15 locations, the results were then validated in a series of interviews during field visits in June and August 2013
85 FDL initial findings were in tune with a number of policy reports on the constitutional priorities, see for instance Human Rights Watch, “Priorities for Legislative Reform: A Human Rights Roadmap for a New Libya.”
86 The topics also are reflected as priorities in the survey. See Forum for Democratic Libya (May 2012). “Libya’s New Constitution: Towards an Inclusive and Democratic Social Contract,” initial mapping report, translated from Arabic. Also see Ben Halim, “Conversations across Libya.”
87 600 out of the 900 participants agreed to fill the aforementioned survey before the dialogue started. Dialogue participants were a sample from the youth and women groups, military, former revolutionaries, local councils, media, civil society, political parties, academics, experts and tribal leaders.
88 FDL selected these regions in line with the historical areas of Fezzan (West), Cyrenaica (East), and Tripolitania (West). This selection was done to engage citizens from the historically divided provinces and explore the extent to which demands are similar or divergent. The locations within the regions also were intended to include both rural and urban areas as well as more conservative and liberal areas. Amr Ben Halim, Chairman of the Board of the Forum for Democratic Libya, interview with author, Tripoli January 2013.
89 Overall the participants were 40% women and 40% people under 45. 90 A copy of the survey and dialogue questions is in annex two.
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from the initial mapping. It was agreed between FDL and Libyan constitutional experts not to address Shari’a law directly as it might invoke negative reactions, but rather it was to be addressed by asking citizens how they wished to see public liberties addressed and thereby indirectly invoke the issue of freedoms, women and minority rights in the light of Shari’a law. As for the issue of the political and administrative system, in an effort to the term nizam idari that would immediately point to federalism, the FDL resorted to asking citizens about the general system of governance they aspired to. Lastly, it was agreed to leave one issue to be chosen at the local level and then analysed as regional priorities. The dialogues therefore included two pre-selected topics that would be systematically debated while also leaving room for local activists to identify issues they considered important.
Locations for the dialogues were selected to ensure that they included: post-conflict locations, locations with ongoing tensions and violence, locations containing significant numbers of (former) Gadhafi loyalists, as well as rural and urban towns. The 15 dialogue sessions took place in the Eastern Region (Benghazi, Darna, Tobruk, and Ajdabia), the Southern Region (Sebha, Murzuq, and Ubari), and the Western Region (Tripoli, Jadu, Bani Walid, Sirte, Misrata, Zawaya, Zleiten, and Khoms). Unlike the survey data on the constitutional process, which showed that most participants converged as to the significance and the need to partake in the development of the constitution, responses on priorities and preferences regarding constitutional solutions diverged. The following themes reveal this dyadic relationship. The three sections summarize qualitative observations of responses during dialogue sessions.
The System of Governance (nizam al hokm)
In the dialogues the state system was defined as the system of governance or governance ‘order.’ For ordinary Libyans the term often generated intense discussion as the only two systems they had experienced were the monarchy or the Jamahiriya. But after successfully toppling the dictatorship, Libyans were not in agreement on the form of the new system. In part due to the way the armed insurgency was organised, the period between 2011 and 2013 witnessed increasing calls for a federal system, especially from the Eastern region.91 Intellectuals and activists also openly
91 See more on demands for a federal Libya or an independent Eastern province in St. John, “Not Inclusive Yet.”
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debated whether Libya should have a presidential or a parliamentary system, whether the monarchy should return, and whether a liberal democracy was even possible.92
In the dialogues the most prevalent view among participants was that constitution should ensure federalism, or at least undertake decentralisation to empower local authorities. The second most popular view was that the constitution should account for decentralisation, but within a unified state system. However, probing into the reasons for this unveils the underlying aspirations of citizens for greater participation, the desire to have a greater voice, and greater equity.93 The
most repeated demand regarding the state system was for a system that could guarantee public services equitably across all regions. The second most common demand was that the state system should guarantee that dictatorship would not return. The third most frequent demand was that the new system should fairly distribute resources and provide sustainable development. These demands indicate two underlying issues. The first is that the terms ‘federalism’ or ‘decentralisation’ are politically loaded and that once asked about their basic needs, citizens across the regions had similar grievances and had similar expectations from the state system. The only regional disparities in the dialogue sessions were that there were more pro-federalists in the Eastern region, indicating an element of continuity from the pre-Gadhafi era. This situation primarily indicates citizens’ aspirations for an effective central state, but also for responsive and capable local authorities.
Public Liberties (al horiyyat al aama)
The question of freedom is contested in itself, as some personal liberties are still not openly debated in Libya. For example, “public order and morals” (al nitham al aam) is broadly accepted to take its foundations from Shari’a law.94 Thus when activists were asked what freedom meant
they mainly referred to freedom of political and public participation.95 At the outset, dialogue participants were divided between the most popular view that freedom is about political
92 Faraj Najem, intellectual and activist, Director of the Africa Research Centre in Tripoli, interview with author, Tripoli, February 2012, and Bodyszyski and Pickard, “Libya Starts from Scratch,” 89.
93 Forum for Democratic Libya, “Constitutional Briefs: Towards an Inclusive and Democratic Social Contract,” translated from Arabic (2013).
94 Libyan society is traditionally very conservative and Islam is officially the religion of all its inhabitants. The vast majority of Libyans are Sunnis who adhere to the Maliki madhab (school of fiqh), see Sawani, “Post-Qadhafi Libya,” 5.
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participation and not private liberties, while the second most supported view was that freedom is about every aspect of life including religion, expression and assembly. The discussion about freedoms, what is allowed and prohibited, what is acceptable in society and politics, is a very nascent discussion in Libya. Probing deeper into these divergent viewpoints revealed more deeply rooted differences that the constitution must resolve.
Participants regarded the issue of political freedom as relevant to the constitution mainly because it leads to institutional accountability and guards against the emergence of a hegemonic power. Freedom was also said to be required for free cultural, political and intellectual expression, to secure the rights of women, and to encourage new economic activities. Participants linked political freedom to political stability and commonly expressed the view that the new system should not limit such freedoms. Another key demand was that the constitution should guarantee the right of expression and association, as many participants wanted to be able to form organisations, media outlets, and political parties.96 Lastly, participants cited freedom of cultural expression as a key priority for private and public liberties. In addition to these views on public freedoms, participants were also divided on the role of religion, with differences arising between whether Shari’a should be the main source or the only source of legislation.97 Libyans were also divided on the issue of women’s rights, with divergent views of the issue of equality between men and women, and of equality under Shari’a law.98 Lastly, the issue of minorities and language is
also a divisive issue, with some participants requiring the official recognition of the Tamazight language and others refusing this, stating that Arabic should be the only recognised language. For instance, in the Amazigh town of Jadu, teaching Tamazight and recognising the language officially was a recurrent demand.
That being said, Libya’s history makes citizens sceptical about the role of the state and the ability of any constitution to address these needs. Given this scepticism, the role of religion has become a more unifying factor than membership of the state. During the dialogues, the importance
96 Libya still has no NGO law but 25 NGOs are already supporting a draft law that the Centre for Civil Society has proposed, GNC is yet to respond. From two focus groups with representatives from 28 organisations, attended by author, Tripoli, June 2013, for the states on the NGO law proposal see Human Rights Watch, “Priorities for Legislative Reform: A Human Rights Roadmap for a New Libya.”
97 Forum for Democratic Libya, “Constitutional Briefs: Towards an Inclusive and Democratic Social Contract, translated from Arabic (2013).
98 Feedback from 15 women NGOs in workshop organised by UNDP on special measures and women quotas, attended by author, Tripoli, June 2013.
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of Shari’a law was generally agreed upon, and no one participant wanted to appear to be challenging this. But while participants could agree on religiosity, the role of political Islam and of Islamic-inspired policies within the state that could guarantee freedom and equality remain unresolved. This has had grave implications for the demands of women’s groups and the Amazigh in particular, especially after the Board of Trustees of the Ulama (Islamic authorities) had abandoned the notion of a quota system for minorities, a view that was promoted by women
members of the GNC throughout 2013.99The role that the armed Islamists played in toppling the
regime also granted them a large say in the NTC, particularly in relation to the adoption of Shari’a law as the source of legislation.
The dialogues on these two sets of issues across the 15 locations mentioned above indicated three main issues. Firstly, while the FDL succeeded in generating debate and deliberation on these issues, the impact of this process was limited to those citizens it was able to reach. This was mainly due to the second issue; FDL and dialogue participants were directing their demands to the GNC but significant decision-making power resided in the hands of religious authorities, tribal leaders, and armed groups that were not successfully engaged by civil society. The issue of Shari’a law, which has a domino effect on personal and political freedoms, is being dictated by religious elites, meaning that the involvement of grassroots organisations was very marginal to the process. The issue surrounding what form the state system should take is shaped by the GNC’s attempts to appease federalist groups in the East and armed revolutionaries (as evident in the decision of election of the constituent assembly rather than appointment). This implies that demands for an effective state and capable local authorities are seen as secondary to this high stake political struggle.100
Regional priorities
Eastern Region: Regulation of oil and natural resources
Participants almost unanimously identified the issue of the fair redistribution of oil revenues as a main priority for the constitution to address. They saw the management of oil and
99 Hana’ Al Irfi, Head of the Women’s Caucuses/Committee at the GNC, interview with author, Tripoli, June 2013, and see Sawani and Pack, “Libyan Constitutionality and Sovereignty Post-Gadhafi,” 530. 100 GNC debate pertaining to the constitution during the period of this study was merely on election dates, districting and representation of citizens in the three regions. See more on this in Sawani and Pack, “Libyan
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other natural resources as indicative of whether the political system deserved their allegiance. For activists, redistribution was an issue of “integrity and recognition for those of us who suffered under Gadhafi.”101 They wanted the constitution to include a mechanism to direct investment outside of Tripoli, as well enshrine principles of transparency. The main stated fears of participants in the Eastern region were how revenues from natural resources would be distributed and how the government would create alternative sources of revenue. Feelings of economic injustice and concern over the manipulation of state resources go back to the times of the monarchy and were only heightened in the post-Gadhafi era.102 At the time of the dialogues (2012 – 2013) tensions
were growing in the Eastern region, with activists accusing the central government of Prime Minister Ali Zeidan of incompetence and corruption. What was of interest here was the connection participants made between natural resources and peace and stability, economic development, and local management of resources. This is an indicator of a rift between grassroots and elites approaches to governance. While federalist leaders in the East focused on the separation of institutions and greater representation, citizens had more substantive demands about equity that the broader discourse on federalism did not directly address. It is also additional evidence that FDL should have engaged with informal, local political leaders and opinion makers, in addition to formulating demands towards the GNC.
Southern Region: Citizenship and Immigration
The most commonly raised issue in the dialogues in the Southern region was the issue of acquiring citizenship; as it was linked to recognition, integrity and quality of life. This was not overly surprising, as the Southern region was historically seen as the “non-Arab” part of the country and therefore as default as alien to the rest of Libya.103 Participants explained that to be a
citizen is an administrative status that enables one’s ability to access resources and services, and provides a shared identity regardless of people’s background. It was the procedure surrounding the gaining of citizenship that was implemented unfairly and which lacked consistency in the
101 Mohammad Zaroug, project coordinator of Nebbi f Dostoory and resident of Benghazi, interview with author, Tripoli, June 2013.
102 Bruce St. John, “The Post-Gadhafi Economy,” in The 2011 Libyan Uprisings, 94-96.
103 More on differences in minority attitudes towards the rest of Libya in Fathaly and Palmer, “Opposition to Change in Rural Libya.”
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Jamahiriya.104 Participants in the dialogue recognised that citizenship had cultural, economic and political implications, especially when it came to women’s ability or inability to pass on citizenship to their husbands and children. Gadhafi had linked citizenship to survival and had historically used the attribution or non-attribution of citizenship to particular groups as a reward or punishment.105 Participants in the South wanted the constitution to address how Libyan citizenship could be obtained and set consistent standards to solve the issue of immigration and stateless citizens, especially in the southernmost regions (by the borders of Chad and Niger). To this day, there are thousands of individuals born in Libya in the south with no recognised citizenship and no official means of obtaining Libyan citizenship.106 Participants directly related this issue to security, identity, and basic human rights. Their demands for the constitution focused on specifying ways to obtain citizenship, the legalisation of stateless citizens, and for the state to control the borders in order to prevent illegal immigration.