Ben Fishman is a Senior Fellow in The Washington Institute's Program on Arab Politics.
Articles & Testimony
If Libya rushes to elections without resolving its long list of contested constitutional issues, it risks creating a more dangerous form of the legitimacy crisis currently unfolding next door.
Libya is racing against the clock to hold elections in late December. A July 1 deadline for resolving the constitutional (or legal) basis to hold the elections came and passed. A key meeting of the 74-member Libya Political Dialogue Committee meeting whose January roadmap set the election timeline ended indecisively on July 2. The UN Support Mission in Libya (UNSMIL), which created the forum, failed to mediate and reach consensus when it was most needed. As of now, there is no agreement on what type of elections will be held (presidential, parliamentary, or both), what type of governmental system Libyans will elect (the content of a constitution), and how the elections will be carried out, among other technical issues. Five months is not a lot of time to resolve these issues. And instead of serving as a role model, Tunisia has now inflamed Libya’s deep polarization.
To Libyans skeptical of a strong presidential system, Tunisian president Qais Saied’s July 25 power grab vindicated their suspicions of what could happen with an elected president even with a strong parliament. Khaled Mishri, the head of the advisory High State Council and the closest thing Libya has to an Islamist official immediately proclaimed, “we reject coups against elected bodies and the disruption of democratic paths.” On the flip side General Khalifa Haftar, Libya’s would-be authoritarian who attacked Tripoli in April 2019 welcomed the “intifada against the Muslim Brotherhood,” and praised “eliminat[ing] the most important obstacle in the way of [Tunisia’s] development.” In other words, Saied’s firing of the government, suspending the Ennahda-led parliament, threatening legislators with prosecution, and prohibiting public assemblies would all be steps that someone like Haftar could take as president against a Mishri-influenced parliamentary bloc.
Although they are neighbors, Tunisia and Libya are two very different countries, and there’s a reason one became the Arab world’s lone exemplar of democracy and the other descended into civil war—or three of them. Tunisia had several advantages off the bat in 2011, mainly functional institutions that prevented the collapse of the state that Libya has not experienced after the devastation of Qaddafi’s 42-year rule. While certainly not perfect, the eventual constitutional compromise made by former president Caid Essebsi and Ennahda leader Rachid Ghannouchi enabled Tunisia’s democratic experiment to proceed through elections and two peaceful transitions of power—an essential test of a nascent democracy. Saied’s surprising 2019 election as a populist independent law professor was the latest example. There’s no way of walking back history, but if Tunisia’s economic malaise and mismanagement and poor response to Covid had been less egregious, Saied may not have had the confidence to suspend parliament under the guise of a popular mandate.
Regardless of the different interpretations of Saied’s actions and the debate of how to preserve Tunisia’s democracy going forward, there is one clear implication for Libya: preparing for elections takes time, especially without a clear constitutional mandate and agreements about the separation of powers and candidate requirements. If elections proceed without resolving these contested issues, the resulting challenges to their legitimacy could be more dangerous than delaying elections themselves.
There is still time to meet the requirements to hold free and safe polling in December, but that time is running out. UNSMIL should immediately reconvene the Libyan Political Dialogue Forum to hash out the remaining issues. That is the appropriate venue to finalize this debate based on UN Security Council Resolutions, which endorsed the group’s initial decision on the elections. If UNSMIL is unsuccessful mediating within this group, Secretary-General Antonio Guterres should step in with other UN resources, including constitutional experts and mediators to close out the final disagreements. The attempt by the HoR to independently determine the constitution and the electoral system is a dangerous distraction that is unlikely to produce the necessary consensus.
If it proves impossible to agree on a constitution and electoral system by September, a partial electoral strategy should serve as a back-up. Some Libyans are already advocating the election of a new parliament in December while postponing the presidential ballot until a clearer solution to the constitution exists. A new parliament would then select a prime minister whose government would replace the current LPDF-selected Government of National Unity until the constitution and final elections are agreed. This approach is different from having an elected parliament appoint a president, which was proposed during the last LPDF session as a means of diminishing a president’s independence and popular mandate. There are certainly downsides to such an approach since it extends the transitional period that continues to plague Libya’s governance. But if the controversial events next door can inform Libya’s democratic aspirations, a more methodical approach at this stage may be safer than a rushed one. Libyans were busy fighting a civil war for most of the last two years, not debating constitutional law. By the end of the year, if a freely elected parliament can assume office, replace the barely-functional HOR and renew legitimacy at least on the legislative front, that would represent major progress. Having a few prominent figures jostle over a potential powerful presidency with unclear restraints would make Saied’s power-grab look like a minor political scuffle given Libya’s still unsteady ceasefire and the continued presence of internal armed forces and mercenaries.
Ben Fishman is a senior fellow at The Washington Institute and former director for North Africa at the National Security Council. This article was originally published on the Newslooks website.