brd - constitution development in libya

“Libya’s New Constitution: Towards an

Inclusive and Democratic Social Contract”

Briefing Report

Insights from:

700 intellectuals, activists, and participants from “Active Citizenship and Democratic Participation” Workshops in Benghazi, Derna, Beyda, Misurata, and Tripoli (in collaboration with Beyond Reform and Development, July 2011 – present)

Dialogues in Benghazi and Tripoli (in partnership with Beyond Reform & Development, February 2012 – present)

Interviews and meetings with NTC members, UN agencies, civil society organizations, women and youth groups, thuwar and private sector representatives

“The Forum for Democratic Libya aspires to promote and

enhance the democratic culture and system in Libya by spreading

the values of diversity, participation, equity and inclusion for all

citizens across Libya”

The Forum for

Democratic Libya In Partnership with

© 2012 BRD/I Group s.a.l./ FDL

Table of Contents

The Political Background…………………………….. 3

The Initiative………..………………………………. 7

National Priorities…………….…………….......... 10

Processes of Participation…………………………. 15

The Role of Stakeholders………………….………… 17

Acknowledgements………..…………………........... 18

Who We Are ………………………………………… 19

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Beyond Reform & Development, part of BRD/I Group s.a.l.

3

© 2012 BRD/I Group s.a.l./ FDL 4

Libya has a golden opportunity to build a

modern nation that combines historical culture

and a futuristic progressive future. Libya can

become a precedence and example for the Arab

World through a democratic transition that

protects the rights of citizens. The

Constitutional Development Process is a

priority issue and that is open for debate during

this transition and foundational phase towards a

new Libya.

The Constitution is the legal foundation that

reflects the social contract agreed upon by

Libyan citizens. It organizes social relations,

political ties, authority and the governance

model. The Constitution will ultimately reflect

and embody the values that Libyans will agree

upon and adhere to, and is the guardian of

social cohesion for all segments of Libyans.

Political legitimacy of Libya’s new government

and public institutions will largely be drawn

from this social contract that citizens will

consensually agree upon. Designing a

constitution without the consensus of all

citizens and political factions will lead to

conflict and decrease of trust between society

and state institutions.

The 1951 preamble to the

Constitution included:

“In the name of God the beneficent,

the merciful. We, the representatives of

the people of Libya from Cyrenaica,

Tripolitania and Fezzan, meeting by

the will of God in the cities of Tripoli

and Benghazi in a National

Constituent Assembly. Having agreed

and determined to form a union

between us under the Crown of King

Mohammad Idris el Senussi, to whom

the nation has offered the Crown and

who was declared constitutional King

of Libya by this the National

Constituent Assembly. And having

decided and determined to establish a

democratic independent sovereign

State which will guarantee the national

unity, safeguard domestic tranquility,

provide the means for common

defense, secure the establishment of

justice, guarantee the principles of

liberty, equality, and fraternity and

promote economic and social progress

and the general welfare. And trusting

in God, Master of the Universe, do

hereby prepare and resolve this

Constitution for the Kingdom of

Libya.”

It is significant that Libyan’s embrace the choice and path of an honest and in-depth

dialogue process among all factions and regions around the issues that bring Libyans

together or that might potentially divide them.

This dialogue should address the values of governance, shape of the democratic system,

accountability mechanisms, as well as the relations between citizens and government,

and among citizens themselves.

The Political Background


The Political Background

5

“True Democracy is not the act of voting

but the culture of continuous dialogue and

interaction among all citizens. The Libyan

constitution should represent the will of all

citizens and the development of this social

contract is the most important milestone in

Libya’s contemporary history”.

Amr Ben Halim – Founding Member of

the Forum for Democratic Libya

This path coincides with the need to develop participation mechanisms, dialogue, and

negotiation processes that enable positive compromise and agreement to promote a

shared sense of responsibility towards Libya. It is this sense that can enhance a shared

identity through a democratic and representative dialogue around the constitution. Only

through shared values can the new Libyan identity overcome the divisions of sect,

regions, tribes, ethnicities and political allegiances.

Until a newly elected National Government in June 2012, Libya’s political leadership

should answer to the following: How will consensus be reached around drafting the

Constitution? How can Libyans guarantee the participation of all citizens in the dialogue

around the social contract? What is the role of stakeholders, including the National

Transitional Council, in achieving social and national cohesion?

Libyans can benefit and learn from the experience that preceded Libya’s independence in

on December 21st 1951, following the decision of the Security Council which proclaimed

Libya an independent state from the Italian colonization.

What characterized the constitutional development at that time was a national

dialogue that secured the participation of all social segments and stakeholders in

the country.


Berwin, M (2006). The Political Forces behind

the 1951 Libyan Constitution, Ph.D Dissertation,

Texas A&M International University, USA,.

Consensual Drafting of the 1951 Constitution in Libya

Dr. Mohamed Berwin, of Texas A&M

University and native of Misrata, described

the phases of drafting the 1951 constitution

that began with the committee headed by the

UN General Assembly representative Adrian

Pelt. The consultative committee was

comprised of 10 individuals representing

different countries in addition to

representatives of the three Libyan regions:

Tripolitania, Fezzan, and Burqah, as well as a

minorities’ representative.

As displayed in the following figure, the

committee of 21 representatives was formed

to develop the constitution and establish the

National Council of 60 members. It is

important to mention that the members were

selected equally from the three regions

irrespective of the demographics o each

region. This indicated the willingness of each

region to comprise on size as an obstacle to

national unity and to secure the participation

of all stakeholders. The technical writing of

the constitution was the result of 25-month

long dialogue and 187 meetings to design a

social contract that responded to the

aspirations of the Libyan people. The legal

development of the constitution was left to

the final stage where a committee was

formed and meetings with experts took place.


After declaring Libya’s independence, the National Transitional Council announced in

the Constitutional Declaration on August 3rd, 2011, that this government should

organize elections for a National Assembly of 200 members in 240 days following the

election.

The Phases of Constitutional Development

The process of developing the Constitution

will be influenced by the way that a

national dialogue will be managed and

coordinated by the Libyans themselves in

the next phase.

The dialogue will be effective only if it can

include all citizens and social factions and

enable them to reach a consensus on the

social contract that will govern their

relations, identify a system of

government, and determine social cohesion

to lay the foundations for a modern

government that reflects the aspirations

and priorities of all citizens.

The National Assembly should assign a

committee within 30 days to develop the

constitution in no more than 60 days

following its first meeting. The draft

constitution will be put up for a referendum

within 30 days.


An Initiative by the Forum for Democratic Libya

FDL Projects

Active Citizenship and Democratic

Participation

To address the growing need for citizenship

education and awareness on the democratic

process in Libya, FDL has developed a course

entitled “Active Citizenship & Democratic

Participation.” FDL has trained more than 550

citizens from all over Libya.

Ruwad Project

FDL selected a group of Libyan Pioneers “The

Ruwad” from all over the country and transferred

the knowledge and training skills enabling them

to conduct workshops and facilitate discussions

on “Active Citizenship & Democratic

Participation” in their communities and with

hundreds of citizens in Benghazi, Derna, Beyda,

and Misrata… and soon in Jabal Gharbi and

Jabal Nefusa.

Federalism and Decentralization: Choosing

a system for Libya’s Future

This initiative aims at presenting the concepts and

options for Federalism and Decentralizing using

evidence and worldwide research to inform

citizens and facilitate a dialogue among policy

makers. The project will share the requirements

and advantages for each option while

documenting and sharing citizen perspectives

with decision-makers.

8

In preparation of the National Council

elections and agreement around a new

Constitution, FDL has launched a series

of open dialogues across Libya with civil

society and political activists, lawyers,

experts, NTC members, and women and

youth groups. This project enables

Libyans to actively participate in creating

a dynamic Constitution that can respond

to their priorities, fit within their

expectations, and ensure fairness among

communities through:

• Raising the awareness of citizens on

the importance of informed civic

participation in the Constitutional

process.

• Building the capacity of citizens on

the process of drafting a new social

contract for Libya’s peaceful and

democratic future and the implications

of the constitution on their lives.

• Facilitating a dialogue around the

principles and priority issues that the

constitution should include in order to

reach a consensus that reflects on

Libya’s culture and political system.

FDL Initiatives

The Forum for Democratic Libya, is a group of activists, intellectuals, and youth who

came together with the passion and desire to positively influence the governance system

in Libya. FDL is a non-for-profit, non-partisan and non-governmental organization that

aims at: Building and sustaining a democratic culture and accountable governance

system in Libya through equal and free participation of citizens.

FDL was founded on the principles of diversity, inclusion, and independence to serve

the cause of democratic consolidation by raising awareness at the grassroots level and

providing opportunities for dialogue and interface among all Libyans…


A series of stakeholder dialogues were launched entitled “Libya’s New Constitution:

Towards an Inclusive and Democratic Social Contract” in Tripoli and Benghazi in

February and March 2012. The dialogues were attended by over 70 stakeholders,

journalists, political activists, civil society representatives, women, youth and experts and

build on the feedback of more than 550 participants who took part in workshops on

“Active Citizenship and Democratic Participation,” in Benghazi, Tripoli, Misurata,

Beyda and Derna.

This initiative is based on the need to strengthen the system and culture in Libya toward

enhancing the chances of success for the process of transition from conflict to positive

civic participation as per the model below:

Developing the

Governance System

Active Participation

Phase

Negative Conflict

Phase

Democratic Culture

Development Phase

Strong

Weak

Democratic

System

Strong

Weak

Democratic

Culture

Doumit, G. (2010). The Paradigm: From Contestation to Participation and From Transition to

Consolidation, presented at DGAP, Istanbul.

A Series of Dialogues

“The Forum for Democratic Libya is an enabler of democratic culture

and engaged participation, by providing the tools for citizens to influence

and be part of Libya’s political processes.”

FDL Founding Member Amr Ben Halim


The dialogue sessions addressed the

following key questions:

What are the national priorities and

issues that Libyan citizen expect to be

addressed in the constitution and new

social contract?

How can the largest number of citizens

and stakeholders be involved in

developing Libya’s new social

contract? What are steps required prior

to drafting the constitution?

Which stakeholders and entities

should reach out and engage citizens

and what is their role in preparing for

the drafting of the constitution?

Participants discussed these questions in

working groups and then presented the

results of their debates.

The dialogue was facilitated by specialists in

the field and assisted by a group of “Ruwad”

that were trained by FDL.

The Forum documented these results to be

shared with the NTC and the constitutional

committee upon formation.

The Constitution is the social contract that identifies:

Meaning of the state

Principles of governance

Shape of the new democratic system

Rights and means of preserving these rights

The relationship between citizens and between citizens and state

The social, culture, and developmental issues for Libya

The requirements of a successful

process of constitutional

development are:

1. The phases and mechanisms of

drafting the constitution:

influenced by the extent to

which citizens and stakeholders

can participate and approve the

process.

2. The shape of political system

and government: this will reflect

the extent to which equity,

justice, and equality in

participation is available for all

citizens and their ability of self-

protection.

3. The values and principles upon

which the process is built: this

will lead to the developing of

public opinion and the securing

of impressions around the level

of representativeness and

proximity to culture and political

society. Von Bogdandy, A., Häußler, S., Hanschmann, F.,

& Utz, R., State-Building, Nation-Building, and

Constitutional Politics in Post-Conflict

situations: Conceptual Clarification and

Appraisal of Different Approaches, 2005


The Revolution of February 17th carried a set of principles, aspirations and goals

for the Libyan citizens from all backgrounds and categories. Despite liberating

Libya from Qaddafi regime, the revolution’s goals will only be achieved via a

democratic path process, one which is sure to be long and that faces – naturally –

a lot of challenges.

Perhaps the biggest challenge is identifying these principals, aspirations and

goals and agreeing upon them since they vary depending on the region, tribe,

ethnicity and citizen.

The dialogues organized by FDL until now showed many differences

between different segments of the Libyan people. It concluded with some

priorities and issues that need deep dialogues to reach a consensus:

The Role of Shariah and Islamic Jurisprudence in the Constitution

Libyan society is divided between a minimum of three opinions:

Some consider Islamic Shariah as the main and ONLY source of the

constitution where all legislations must be driven from the Quran.

Some think that Shariah should be the main source and constitution text

should not contradict it but at the same time are open for developing

constitutional texts that parallels the political reality.

Others think that the religion of the state is Islam but the constitution is a legal

reference and that Sharia should not determine its contents. Rather it has to be

drafted based on the choices of the Libyan society and it will not contradict

with Quran since all Libyans, or at least the majority, are Muslims.

No doubt this issue will reflect directly on the political divide most Libyans

are having; noting that most of the participants do not realize the reflection

level their choices have on their culture, political, social and economic

realities.

It is worth mentioning that there are many diverse and different interpretations of

Islamic jurisprudence even though most Libyans belong to the Maliki Madhab.

National Priorities and Public Issues in the Social Contract


12

The Meaning of Freedom and Equality

All participants demand freedom and equality and the words appear as slogans

repeated in dialogues but that have different meanings to different citizens.

There are those who reduce these concepts to the level of the political

participation and are afraid that interpreting those terms for fear of the

destabilization of norms and traditions; especially if it reaches the family and

equality between men and women.

There are those who want these terms to infer meanings that affect all social

aspects and seek to affect personal freedoms including freedoms of expression,

religion, and assembly. They think it is an opportunity to change some of the

cultural traditions and norms including those about the role of women,

availability of alcohol, and the market.

Others think that these terms/concepts are imported from the West and should

not replace Islamic values. They believe that introducing these concepts to

society is a danger since there no freedom exists except within the confines of

religion and there is no equality except for what Shariah allows.

National Priorities and Public Issues in the Social Contract

The phrase “Free Libya” gets repeated

by many participants and some even use

it when they want to drive through a red

light or throw trash in the street. This

points to the need to raise social

awareness regarding the responsibilities

that go with freedom, sets of

responsibilities toward others and

society as a whole.


13

Participants repeated the need for the separation of executive, legislative, and

judicial powers due to their fear of a monopoly of power and repeating the past

experiences of the country. They also stressed the importance of the need to limit

the duration of the presidency in the constitution and making it impossible to

renew the term in order to facilitate the peaceful exchange of power.

Most participants tended to demand a parliamentarian system so the larger

power remained in the hands of those whom they elected. Others demand

presidential system with direct elections from the people and others prefer

semi-presidential system with indirect elections.

Some participants expressed their concerns that the election results of The

National Assembly elections who will lead the formation of a committee to draft

the constitution. At the same time, many citizens do not understand the

practicalities of these systems and their respective impact on Libyan society.

The Shape of The Administrative System

The form of the administrative system was the most debated aspect among

participants. Opinions were divided between supporters of administrative

decentralization and supporters of Federalism.

Some demanded decentralization as “de-concentration” aiming for

decentralization of resources and services; equitable and sustainable

development is the main motivation behind it.

Some are demanded “administrative decentralization” with the aim of

insuring independence for some areas so they might be represented

geographically, tribally or ethically. Also their motive is to insure

administrative prerogatives for local authorities and equitable development.

Others demand Federalism so some areas might enjoy sovereign systems that

allowed for better use of resources – especially oil – in addition to demanding

partial or complete secession.

The Shape of the Political System


14

The main challenge in the transitional period remains in developing a system

that ensures unity and responds to the different groups’ desires with equitable

development and representation that reflects the cultural and social diversity.

Integrating Minorities

While many participants believe that there are no minorities in Libya since the

Libyan and Islamic identities is common to all Libyans, Libyans do admit to the

presence of tribal and ethnic minorities, especially with the presence of a small

Jewish minority (that has largely immigrated from Libya in the past).

On the other side, opinions are divided when discussing the linguistic aspects of

the constitution. Some support adopting Arabic as the sole official language while

respecting other languages and teaching them in the society, for example, the

Amazighi language.

Others demand considering Arabic as The official priority language while

recognizing and allowing other languages in official places whenever they are

used. Other groups think that Arabic and the Amazighi language should be

accredited as two official languages in the State of Libya.

The problem of the people of Tawergha, Bani Waleed, pro-Qadhafis, Mashasha

and other tribes who supported Qadhafi remains unaddressed. However The

Libyan people realize that it will be an obstacle if it is not dealt with, with these

people being integrated into society along with the other tribes while achieving

Transitional Justice to ensure the rights of those who suffered during the

revolution.

“What I care about in regards to the

governance system is to maintain the

Libyan unity, ensures the development of

all districts and enhances citizens’

prosperity at the same time.”

Political Party Leader from Benghazi

“If the constitution ignores women,

youth, minorities and Qadhafi

supporters, then who will participate in

building the future of The Libyan

State?”

Female journalist from Derna.



15

The Role of Women in Society

“The role of women” rose up in many dialogues regarding the Constitution. It was

a point of discussion on which everyone agreed about its importance but were

divided over the details.

There are those who aim for equating women with men in all aspects of life

including political, social and economic, considering that this does not conflict

with Shariah.

Others demand equality between men and women as far as religion allows but

not crossing those lines, especially on the issues of inheritance and marriage.

There are those who think that a woman’s role is different from a man’s and

oppose female enrollment in political life and, occasionally, in the economical one.

The diversity of opinions regarding women and their rights is not purely

religiously or socially driven but it is also a reaction from some participants to

Qadhafi’s rule, where women were often used to humiliate men.


“We want a regime that allows political

plurality and ensures representation of all

Libyan social segments with accountability

mechanisms that prevent monopoly over

power as happened in the last 42 years.”

Female activist from Tripoli

“The mothers of Abu Saleem prison

launched the revolution in February 17th…

We, Women, raised the revolutionaries, fed

them and most lived the pain of losing our

kids. Why can’t we participate equally with

the rest of Libyan citizens?”

Martyr’s mother from Misurata.


16

Libyans expect to participate in the development of the new social contract and therefore in

writing the constitution. If necessary processes/mechanisms to achieve such expectation are

not available, the lack of confidence between citizens and political leadership will increase

and affect the relationship between citizens and the state. This is a challenge to the political

leadership, since Libyans feel they were deprived of this role during Qadhafi’s time.

The Libyan people see participation in writing the constitution as a major right and

will not be happy with just voting in the referendum as a participation tool. They came

up with participation processes during discussions or from experiences in other

countries and that can be used in the current time.

These processes are as follows:

1. Choosing monthly topics that represent one of the aspects of the new social contract to

be discussed via:

Media tools that enable these issues to be tackled by stakeholders, specialists and citizens.

Local councils to hold dialogue events and invite all local citizens.

Civil society to organize meetings and seminars that all sectors of society can participate

in.

Universities to organize dialogues and student activities which students and professors

will participate in.

Proposed organizers would send their suggestions to a coordinating committee made up of

independents and intellectuals. The committee would combine those suggestions and write

reports that will be handed to the constitution writing committee.

2. Every ministry would organize a series of dialogues specialized in its work, which

connects directly, or reflects on the constitution, with specialists and stakeholders in all

districts.

These suggestions are to be documented and sent to the constitution writing committee.

3. A committee would be formed from intellectuals, experts and independent civic society

leaders to organize the advertisement of all regional meetings in all areas in which

stakeholders combine any suggestions.

4. Social media could be used to make writing of the constitution an interactive process

and launching organized discussions via forums (for example, Libya Wiki-Dustur). These

forums allow the constitution to be responsive to youth expectations, their opinions and

allows the participation of as many youths as possible.

The Process of Participation in the Social Contract


17

Stakeholders and their Role in Developing the Social Contract

It is the responsibility of all governmental and non-governmental stakeholders to

mediate the dialogue about the constitution. Libyans are divided about the advantages

of the governmental participation – especially the transition council and cabinet – due

to the lack of confidence regarding the neutrality of some of the leadership and their

capabilities. Others think that mediating the national dialogue without exerting influence

should be one of the main responsibilities of the government during the transitional

period and it is the body most capable of doing such a thing.

The direction of the constitutional context will be influenced by how the dialogue is

mediated:

Who will invite the participants?

Who will participate and where?

What are the stages of building consensus and assuring the political and legal

legitimacy?

No doubt the above will be very important to determine the different sides, their roles

and coordinating between them to reach the highest possible level of participation.

The main sides are:

National Transitional Council

The Government and Ministries

Local Councils

Civil Society

Media

Academic and educational institutions


18

Summary and Suggestions for Libya’s New Constitution

The process of developing the Constitution will determine the success of the democratic

transition and Libya’s political and social future. In a few years, Libyans will look back

to see lessons learned. They will either be a role model for other countries or they will

suffer due to the failings they will face.

This period will be influenced by many conditions especially:

1. Dialogue skills that should be built and engrained among all sectors of society.

2. Proper management of a participatory dialogue path that ensures public,

political and legal legitimacy for the constitution.

3. Awareness among political leadership about the importance of dialogue and

its capability to mediate conflict and compromise for the sake of consensus

rather than having to turn to violent tools.

4. Partnering with all stakeholders, even those who were anti the revolution, for

the sake of achieving real national reconciliation.

Dr Muhammed Berween summarized the reasons behind the success of Libya’s 1951

constitution by highlighting the following:

Huge effort and continuous dialogues for 770 days, or 25 months.

Big compromises from the society and political factions for Libya’s unity,

independence and sovereignty.

Openness and flexibility to accept political ideas and new governance systems

without holding to the familiar.

Will, determination and political awareness.

Knowing “what we want” and how we want to live in The Future Libya.


19

Acknowledgments and Appreciation

The Forum for Democratic Libya extends thanks and gratitude to all those who

prepared, organized and participated in the series of dialogues about “Libya’s New

Constitution: Toward a Democratic and Inclusive Social Contract”. FDL promises The

People of Libya to continue this initiative and to initiate others to establish a democratic

system and culture in Libyan society and building consensus about the different, divisive

issues to learn from the past and to improve the future.

Special Thanks to

The National Transitional

Council, especially those who

participated in the dialogues

The Libyan Government,

especially those who

participated in the dialogues

The political and military

leadership

Intellectuals and experts

Civic society leaders

Journalists and media actors

Libyan youths, male and

females

Citizens of Tripoli, Benghazi,

Albyda, Tobrok, Darna, Misrata

and everywhere else

Ruwad of the Forum for

Democratic Libya

Representatives of various

international organizations

Representatives of United

Nations Development Program

Special Acknowledgement to

The Forum for Democratic Libya Amr Ben Halim

Dr. Faraj Nejm

Dr. Lamya Abu Sedra

Spokespersons during the dialogue Dr. Meftah Al-Swaisy

Hussein Al-mezdawi

Ibrahim Qaradah

The Forum Pioneers Dr. Najla Daghman

Libya Idris El Mismary

Muhammed Khleef

Muhammed El Tarigi

Muhammed Al Zaroug

Faraj El Hasi

Beyond Reform & Development Report Team

Gilbert Doumit

Lara Chaaban

Carmen Geha

Marwa Abu Dayya

Najat Rizk

Rania Baroud

Hicham Jadaoun

Nabil Hassan

Amal Hmayed

Natalia Menhall


20

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