Ensuring Fair & Free Elections And Overcoming Obstacles In Selecting A Parliament, Forming A Government, And Ratifying A Constitution For Libya
A Public Policy Initiative
By Emadeddin Zahri Muntasser, President, Democracy And Human Rights Foundation
The 2011 Libyan revolution promised to bring freedom and democracy to a region that endured a brutal dictatorship for almost half a century. With tribes, Islamists, anti-Islamists, extremists, and pro-Kaddafi oligarchy all competing for power and claiming legitimacy, Libya is now at a critical crossroads. For more than five years, five United Nations envoys have tried to bring warring factions in Libya to the negotiating table without much success. The UN and Western allies have pushed for the formation of a Government of National Accord (GNA) through dialogue. The machinations of regional autocracies and local warlords further fragmented society and created competing spheres of influence funded by corruption and foreign money. While negotiations have failed, the UN is pushing to hold elections in the fall of 2018. With elections only a few months away, the UN has not addressed the lack of security or the lack of basic freedoms in areas controlled by various warlords. Incremental Elections provide the practical framework for ensuring free and fair elections under such circumstances.
The prospect of peace and democracy never appealed to Libya’s warlords. Public statements by Khalifa Hifter, commander of the self-proclaimed Libyan National Army, such as the “the UN negotiations do not concern me” and that “Libya is not ready for democracy” show that militias & strongmen do not see a future for democracy in Libya. Recently, Western powers warned Hifter against sabotaging the electoral process. In a manner typical of autocratic leaders when pressured by international powers, his public statements became more reconciliatory. But in regions controlled by his military governors and militias, individuals who announced their candidacy for the new elections were being hunted down and assassinated.
In addition to the oppressive rule of Libyan warlords, large swaths of Libya are under the effective control of foreign troops. The head of the Sebha Council of Elders, Hassan al-Ragaig, warned last week that there is no governmental presence in southern Libya and that foreign flags are flying over Libyan military installations. The House of Representatives (HoR) remains dysfunctional as some of its members are under the threat of physical violence by thugs loyal to Hifter. Other members, such as representative Ibrahim al-Dersi, have abandoned the democratic process and have publically called for the killing, assassination, and the bombing of their opposition.
Throughout these negotiations the war continued unabated, extremist groups such as the Madkhalis are mushrooming rapidly into a formidable force. A realistic reading of the facts on the ground does not bode well for the new UN initiative including holding wide-open nation-wide elections in the absence of security, a fair and valid election law, or a ratified constitution. Without a new course of action, holding elections in Libya would result in flagrant violations of international laws and produce another ineffective government that can only operate in Tripoli and nowhere else. Or worse, elections may vote in antidemocratic forces which will bring to an end Libya’s short-lived experiment with democracy and initiate a civil war. Libya is at an impasse and the situation is getting worse including the imminent collapse of the Libyan economy. The UN is working in a vacuum and is likely to repeat its devastating failures in Syria and Yemen.
Dr. Karim Mezran, Senior Resident Fellow at the Rafik Hariri Center, argues that “going directly to the people to appoint a president and a parliament would bypass all the legal inconsistencies and contradictions around the validity of the HoR and the LPA.” This argument is compelling. How exactly to conduct fair and free elections in Libya, however, has so far remained elusive.
A creative and realistic solution to this dilemma is holding Incremental Elections: not nationwide elections as the UN is suggesting but incremental elections held in regions that are under civilian control and deemed to be secure and free enough to hold elections. As elections are held in qualifying regions, a new parliament is formed. The new parliament will possess sovereignty and will have full legislative powers including the authority to form a government regardless of the number of members who were voted in. More members of parliament are elected into office when their districts satisfy the free and secure criteria. This process will continue and more elections shall be held in an incremental fashion with districts electing their representatives to join the newly formed and functioning parliament.
With international monitoring and support such elections will give Libya a fresh start in electing a new Parliament and Government. As outlined below, the process will offer huge incentives for districts to cleanup their act and hold elections thereby encouraging all citizens to take part in claiming back their cities, towns, and neighborhoods. The overwhelming majority of Libyans long for democracy and freedom. There will be tremendous popular support for this option.
Variations on Incremental Elections include rolling or staggered elections such as those held in India or in the US presidential primaries. The fundamental difference, however, is that Incremental Elections produce a functioning parliament and government as soon as the first batch of districts conduct their vote.
There will be some opposition for this option. The GNA and HoR stand to lose power and may not support this option. If we take their statements at face value however, the GNA and HoR already announced that they will accept options that include new elections. The track record of the HoR in particular is a cause of great concern. The Libyan Political Agreement – the byproduct of the UN-sponsored dialogue – was never ratified by the HoR. This same agreement requires the HoR to work with the High Council of State to enact an election law and bring a new constitution to a vote. By employing an array of dilatory tactics, the HoR and its president managed to avoid action on all such vital legislation. As a result, Libya plunged further into uncertainty and was deprived of the prerequisite constitutional and legal foundation for new elections and a new parliament. Incremental Elections bypass these obstacles.
Incremental elections can and will work as long as the world community ensures that any threat to the process will be dealt with severely including imposing sanctions on travel and on bank accounts of spoilers. Pro Qaddafi forces need to be reined in. Regional powers have to be told to keep their hands off Libya. The international community must refrain from double dealing and interact only with the newly elected parliament and government. If these prerequisite steps are taken and the principles of the Libyan revolution are preserved, incremental elections will work and Libya will have a future. When democracy, justice, and prosperity prevail, extremism will fade away.
The existing Libyan High National Elections Commission will be in charge of the process and will have final say in all procedural aspects. Elections will be conducted in regions deemed to be secure and free enough to hold elections. Such regions must be under the control of elected civilian city councils with no military or militia members acting as governors. As regions elect representatives, a new parliament is formed in an incremental process. As evidenced by the fact that it derives its power from the people, the new parliament (even with only a few districts voting) possess sovereignty and will be responsible for forming a government, administering all national resources, especially military forces and petroleum receipts. As an added benefit, Incremental Elections would allow the Elections Commission to focus on smaller and safer regions thereby reducing fraud and increasing transparency. Decomposing large and intractable problems is a well-known engineering methodology that will work just as well in the case of Libya’s intractable security, pervasive corruption, and foreign meddling.
In exchange for conducting fair and free elections, regions would receive full budgets allowing them to set up the essential services for the population that allows a stable society to be formed. As none of this is happening in Libya right now, and none of it is likely to happen under the HoR or the GNA, these steps guarantee further stability in the country all the while ensuing democracy. Of course, in order to limit in-fighting among factions within Libya, the criteria of ‘fair and free’ would be policed by strict international oversight.
The prospect of receiving full budgets would motivate regions to quickly conform to the process and conduct elections. Many (if not most) Libyans are becoming desperate. Citizens will exert pressure on their local officials to make certain that clean elections are conducted. As towns and cities receive full budgets and international aid, neighboring districts will race to catch up, ensure compliance, hold elections, and become part of the new parliament.
This incremental process could also be used to ratify a modified 1963 constitution or the proposed constitutional draft that will govern the transitional period and prevent a legal vacuum. The ailing and expired elections law must also be updated in order to satisfy international standards of one-person one-vote and equal suffrage. Such update could be handled by an UN-appointed committee composed of international experts and Libyan judges. As more districts conduct elections and send representatives to the new parliament, further votes of confidence in the government could be held giving these late comers a voice in determining the future direction of the political process.
Finally, to further make sure that the voices of the people are being heard and not those of demagogues with links to extremists, the Qaddafi regime, or to present day oligarchy, there would be limits to the financial resources that candidates are allowed to use in their bids for office, as well as a prohibition on candidacy for those who have committed financial or other crimes. Those who fail to adhere to these rules, or attempt to incite instability through unrest or petroleum manipulation, would find themselves not only responsible to Libyan authorities, but also to international tribunals.
This process will give the Libyan people a chance to move closer to a functioning democracy, restore security, and be ready to do business with the outside world all in a phased and controlled manner that rewards compliance and success.
Disclaimer: The views and opinions expressed in this article are those of the writer, and do not necessarily reflect those of the Libya Observer