Libya's House of Cards: Elections Without Institutions

Editor’s Note: After years of civil war in Libya, the recent plan to hold elections there seems like a rare ray of sunshine, creating hope that the country may be on the path to peace. Jason Pack and Rhiannon Smith of Libya-Analysis, however, urge caution. They point out that because of a lack of judicial accountability and security, among other problems, elections risk exacerbating violence rather than resolving it.

Daniel Byman

***

Elections exist to facilitate non-violent transfers of power. They are meant to structure political contests among a range of opposing social and political forces, tailored to the relevant laws, historical precedents, and cultural factors of the country in which they take place. But elections are only one facet of democratic governance. They need to be supported by a coherent institutional framework in order to achieve peaceful transfers of power. They require a justice system that can enforce accountability, an education system that encourages freedom of thought, and a security architecture that allows citizens to vote without fearing for their lives.

So, what happens when a country is planning for elections but lacks the institutions around which a functioning governance system can be built, the legal framework to establish the rules of the electoral game, and a sovereign government to oversee and implement the technical process of holding elections? Welcome to contemporary Libya.

Elections Without Institutions

The UN-brokered Libyan Political Agreement (LPA) that was agreed in Skhirat, Morocco in December 2015 was intended as an internationally-recognized political framework that would allow rival political factions and institutions in Libya to work together to establish a temporary unity government—the Government of National Accord (GNA). The plan was for the GNA, supported by the LPA’s legislative body, the House of Representatives (HoR), to hold a national referendum on the draft constitution produced by the Constitutional Drafting Assembly. Then national elections based on this newly ratified Libyan constitution would follow as the final step that would conclude Libya’s multiple “transitional” periods (hukumat intiqaliyya), which began in 2011 with the overthrow of Muammar al-Qadhafi.

Fast forward two years: The HoR has failed to approve the GNA or ratify the LPA (necessary steps for either to legally come into force), while the new Libya Action Plan proposed in September 2017 by UN Special Envoy to Libya Ghassan Salamé—involving amending the LPA, organizing a “National Conference,” and holding elections—had stalled. So, when French President Emmanuel Macron hosted a “Libya summit” in Paris on May 29 that resulted in rival Libyan leaders agreeing to hold “credible, peaceful” elections this year, casual observers could just about be forgiven for interpreting this as a momentous milestone on Libya’s road to legitimate governance. Indeed, the holding of free and fair elections that can establish unassailably legitimate Libyan institutions would be a wholly positive development for the beleaguered, divided country.

Obstacles to Free and Fair Elections in Libya

Despite considerable French fanfare around this agreement, there are very real fears among other powers that a push for early elections will actually make peace more difficult to achieve if the “rules of the game” are not agreed upon first. These include a clear, uncontested legal framework delineating the powers and responsibilities of the positions to be elected, stability and security to allow citizens to vote and campaign freely, and perhaps most importantly, a genuine commitment by all actors involved to accept the results of the elections.

The Paris conference brought together the three heads of Libya’s legitimate political entities under the LPA—GNA Prime Minister Fayez al-Serraj (the executive), HoR President Agilah Saleh (the legislative), and president of the advisory body, the High Council of State (HCS), Khaled Mishri—along with Field Marshal Khalifa Haftar (military), the commander of the so-called Libyan National Army (LNA) forces based in Eastern Libya. They agreed to establish the “constitutional basis” for elections by September 16, 2018, hold elections by December 10, 2018, and pledged to respect the results of these elections. The final 8-point declaration was endorsed, but not signed, by the four men.

There are several key technical and political flaws in the Paris agreement as it currently stands.

First, no agreement was reached in Paris about what the constitutional basis for these elections will be—whether it will be formalized by amending existing legislation or approving a new constitution. The HoR has decided to pursue the latter, drafting legislation for a constitutional referendum. However, the parliament was twice forced to postpone its voting sessions in late July and mid-August after they descended into chaos. In the last session on August 14, a consensus was reached to pass the referendum legislation provided an amendment was first made to the 2011 Constitutional Declaration (which currently acts as Libya’s constitution). This would add an article which requires that in addition to an overall two-thirds majority, the constitution must also be approved by 51 percent of voters in each of Libya’s three regions (Tripoli, Cyrenaica, Fezzan). However, 120 votes are required to pass a constitutional amendment, and given that the HoR has only been able to muster around 90 of its original 200 members for its recent voting sessions, achieving this seems nearly impossible.

Second, no administrative framework for implementing this ambitious timeline was agreed in Paris and it remains unclear how a viable referendum on legislation as important as the constitution could be held in just one month, even if there were legislation in place. Although voter registration was reopened at the start of 2018, at present only 53.26 percent of potential voters are registered, and there is no process in place yet for candidates in the subsequent elections to register. Even if a referendum were held within an extended timeframe, the probability of the draft being accepted is slim given the bar for approval is set so high and many stratums of society have already voiced their concerns about the draft.

Third, despite a loose, top-down commitment to holding elections in Libya this year, the political underpinnings which would allow elections to function as a framework for reconciling socio-political struggles, rather than accentuating them, are wholly absent. Potential voters have no idea what type of governance structure they are endorsing by going to the polls, while potential candidates can only pursue political power in its own right as there is no shared political platform or social contract to give shape or form to their campaigns. In other words, campaigning will be focused on individuals not issues, making it more likely elections will deepen, not heal, divisions along regional and tribal lines.

The National Conference process launched by Salamé was conceived as a way to begin establishing a shared vision for Libya through a series of townhall meetings across the country. Some meetings have taken place and had some traction. However, as with the rest of the Libyan political process, there is a striking lack of clarity over exactly how the outcomes of these meetings can feed into a tangible political framework. Consequently, many fear that the National Conference will be just another talking shop from which the UN or rival Libyan factions can cherry pick “popular” sentiment to suit specific political agendas (e.g. holding presidential elections) without making inroads towards any kind of sustainable, shared vision of the country.

Elections as a Driver of Conflict

The promise of a new route to political power (elections) without any clarity over the roles and responsibilities of the victors (an agreed constitutional basis) has led to an intensified jostling for power and influence in Libya, creating fresh drivers of conflict and in some cases deepening existing divisions. If elections take place, the winners could become Libya’s new, internationally-recognized powerbrokers for years to come—without a clear, enforceable political framework delineating what that power entails. Even a cursory reading of Libya’s post-Qadhafi history should make clear that this set up risks causing electoral losers to feel permanently disenfranchised and then rebel militarily against the victors. As a result, the priority for most Libyan stakeholders is to ensure that they are not cut out of whatever new deal is agreed, encouraging military consolidation and opportunistic attempts to seize resources in advance of elections.

For actors who currently have access to power and wealth, either by virtue of the legitimacy bestowed upon them by the LPA framework or through their de facto control of key infrastructure, institutions, or resources, the priority is to ensure that they will not lose their power and legitimacy if, or when, elections happen. For actors who are currently excluded from power, the priority is to shake up the status quo in order to seize greater influence prior to elections or to delay and undermine any electoral process, as they are more likely to be able to access more power and resources in an unstable environment.

A number of significant developments in Libya over the last few months can be understood as a manifestation of the destabilizing effects of electoral rhetoric. LNA Commander Haftar has made recent attempts to consolidate and extend his military power and political leverage in Eastern Libya in the run-up to elections by “liberating” Derna from jihadist group that has controlled it for several years. In June, former Petroleum Facilities Guard commander Ibrahim Jadhran tried to seize oil ports controlled by the LNA. And later that month, Haftar made a surprise move to hand over control of the Oil Crescent ports to the parallel Benghazi-based National Oil Corporation (NOC) rather than the internationally recognised Tripoli-based NOC.

All of these actions have highlighted one of the fundamental issues that elections alone cannot solve: the inequitable distribution of resources. Haftar demanded an end to corruption in the Central Bank of Libya (CBL) and the establishment of an international committee to investigate the distribution of Libya’s oil revenues. When he received a pledge to establish the latter (and also came under significant international pressure), he relinquished control to the Tripoli-NOC shortly afterwards.

Punting the Political Football

For Libyans, the key question is not “who should be our president,” but rather “how should our country’s vast resources be used and distributed.” Yet nothing in this current electoral process allows for such questions to be resolved in a structured way. By setting elections as the final destination within a fixed timeframe, without any rules to govern the journey or delimit the powers of the winners, the process risks becoming a free-for-all, in which those who are willing to use brute force and play dirty are best poised to get ahead. Ironically, careless electoral talk risks further undermining the country’s fledgling accountable institutions and setting back any nascent process towards democratic governance.