Five Ways to Ensure the Public Has a Say in Libya’s New Constitution

Mahmoud Bader is CIPE-Atlas Corps Think Tank LINKS Fellow at the Project on Middle East Democracy (POMED).

Ever since Libya’s General National Congress’ (GNC) elections (dubbed the “electoral wedding”) had a 2.5 million-voter turnout according to the High National Electoral Commission (HNEC), turnout has never been the same. Libyans lost confidence in both the previous government and the GNC. Today, the Libyan people’s hopes rest on the Committee of Sixty – sixty members who are tasked to draft the constitution.

Despite the fact that the total voter turnout for the Committee of Sixty was low — a modest 1.1 million total voters according to the HNEC — it could still change. The Committee’s biggest challenge is to find a way to regain the people’s confidence and guarantee the public’s participation in the drafting of the constitution. It could do that by:

1. Creating a means of communication with citizens and public organizations to cover all issues. Civil society organizations, for example, have had on-the-ground experience, making them particularly aware to the public’s demands. They are also more aware of the studies that have been done about constitutional reform.
2. Establishing networks in several cities to discuss with the public and receive feedback on several issues, including government organization or structure and the legitimacy of the constitution, among others.
3. Connecting with the different factions invested in the constitutional process, such as the Amazigh, to find solutions that work for everyone.
4. Continuously communicating and cooperating with community civil society organizations
5. Using communication and media channels to publish anything related to the constitution, as well as document feedback, which will prevent the Committee of Sixty of having to redraft the constitution.

The purpose of transparency is to bridge the gap between the average Libyan citizen and the Committee. Transparency would then achieve the following goals:

1. The public would regain trust in the committee
2. It would build respect for the constitution prior to its adoption
3. It would allow the committee to draft specific articles to meet the people’s needs
4. It would pave the way towards national dialogue and agreement

Allowing the public to participate in the process would guarantee that the constitution would be respected after the drafting period. This would allow citizens to have an active role in drafting articles that would reflect their dreams and wishes, or at the very least part of his dreams and wishes. But is four months a sufficient time-period to achieve all these goals and draft a constitution at the same time?

If we compare the Committee of Sixty to constitution-drafting committees in other nations that went through revolutions, we would find that Libya has the shortest time-frame to draft the constitution. In Tunisia, the constitution was drafted in two years. In Yemen, the constitution should be drafted within a year after the conclusion of the national dialogue. In Egypt during Morsi’s era, it took six months for the drafting committee to finish the constitution, and another 60 days to amend it.

The timeframe is crucial if we are seeking to draft a constitution respected and agreed-upon by all parties. It would give the committee the time it takes to create the specialized mechanisms necessary for greater public participation. It would also allow the time to consult other expert nations, like South Africa, which was successful at incorporating the public in the drafting of their constitution. These nations would play an advisory role, without participating in the drafting of the constitution itself, which would be done by the Libyan people.

Public participation doesn’t only include the general population, it also includes all of the different factions within it: civil society organizations, the business community, revolutionaries, writers, thinkers, cultural groups etc. If these various groups participate, then different perspectives and needs would be expressed. The Committee of Sixty would then have a comprehensive view of all the issues faced by the different factions. As for political parties, considered by some to be failures, we ask ourselves: should these parties participate in the dialogue?

Drafting the constitution depends, in part, on the political parties, their will, and their power on the ground. But political parties should be represented equally with other factions in order to keep the dialogue balanced..

Moreover, there will be a lot of articles and materials in the constitution that would require details not known by the general public. But through the public and different groups’ participation they would be covered extensively. These articles include those focused on regional, local, health, and education sectors of the government, as well as the division of power between the three branches of government (the executive, legislative, and judicial).

Additionally, public participation would pave the way to a national dialogue. It would also allow greater understanding and respect of the constitution, especially since these articles would be explained more thoroughly in the future.

To solve controversies or disputes on these articles, the Committee of Sixty should engage the Supreme Court to help explain these articles to the public, thereby reassuring citizens and fostering sound understanding of articles that may be prejudged without proper comprehension of content. Public discourse is no longer convincing to the public because constitutional articles are open to interpretation, leaving citizens to judge the constitution based on real guarantees and not its nuances and details.

But the Committee of Sixty has to take into consideration that voters have a weak image of it, and that one of the challenges it faces is gathering a high voter turnout for the constitution. Additionally, the committee has to figure out a way to remain independent from the GNC. Finally, the committee has to be transparent. If it chooses to remain secretive, it would only make things more complicated and eventually create a greater divide with the public.

CIPE-Atlas Corps Think Tank LINKS Fellowship brings talented young professionals with strong research backgrounds to shadow researchers and experts at leading U.S. think tanks for six months. Mahmoud Bader is part of the Fellowship, serving at POMED.