Libyan constitutionality and sovereignty post-Qadhafi

The Islamist, regionalist, and Amazigh challenges

Bibliographic Data

ID4887682
AuthorsYoussef Sawani, Youssef Mohammad Sawani (0000-0001-9499-8518, University of Tripoli), Jason Pack (University of Cambridge)
Year2013
Volume18
Issue4
Pages523-543
Publication date2013-09-01
Peer ReviewedYes
Open AccessNo
TypeARTICLE
VenueThe Journal of North African Studies (JOURNAL)
Journal identifiersISSN: 1362-9387 • E-ISSN: 1743-9345
PublisherInforma UK Limited (PUBLISHER • GB)
DOI10.1080/13629387.2013.838056
OpenAlexW2004762060
LanguageEN
Citations received15
References cited3

Since the overthrow of Muammar Qadhafi, Libya's political and security institutions have suffered from a power vacuum. The interim governments' absence of 'real power' has been mirrored by their corresponding absence of 'abstract authority'. Both dynamics are indicative of an ongoing struggle over what constitutes sovereign, legitimate authority in post-Qadhafi Libya. From the National Transitional Council's (NTC's) inception until its handover of power, it claimed to possess 'temporary' sovereign authority – sufficient to administer Libya and define the rules of the post-Qadhafi transitional phase. Throughout the protracted constitutional drafting process, the country has been 'governed' according to the Temporary Constitutional Declaration (TCD) issued by the NTC in August 2011. Amendments to – and popular contestation of – the TCD have constrained Libya's political evolution, impeded the constitutional drafting process, and impinged upon the legitimacy of the General National Congress (GNC)– the NTC's successor body. This article will illustrate how and why the TCD was contested by Islamists, federalists, and certain Berber groups. Our use of copious Arabic primary source material allows the views of these groups to be presented in their own words. The NTC's responses to its challengers reveal a distinct pattern: it attempted to incorporate Islamists into its framework, it appeased Cyrenaican federalists, and it ignored the grievances of Berber activists. The implications of this highly unbalanced strategy remain at the core of Libya's present instability and the GNC's inability to stand up against its myriad challengers. Keywords: Libyan uprisingsNational Transitional CouncilIslamistsCyrenaican federalismLibyan constitutionGeneral National CongressLibyan Berberspost-Qadhafi Libya Acknowledgements We would like to acknowledge the research, translating, editing, and formatting work of Haley Cook, Director of Research of Libya-Analysis.com. Without her great efforts and expert knowledge this article would not have been possible. We also thank Lorianne Updike Toler, Head of Libertas Constitutional Consulting, for her expert constitutional insights and Fred Pack, Vice President of Libya-Analysis.com for his excellent copyediting. Finally, we thank George Joffé of Cambridge University for seeing the merit of our analysis, providing astute guidance, and making sure that this article could see the light of day. Notes The NTC exercised 'a stranglehold over formal authority but an abject lack of institutional capacity [to exercise that authority]'. The quote is from Pack and Barfi (Citation2012) and this theme is developed more fully in Pack (Citation2013). Although almost all Libyans are Muslims, they differ strongly in the extent to which they wish the Shari'a to underpin the country's legislation. This has been documented via informal polling on the Facebook pages of various Libyan politicians and pollsters. Illustrating this trend, certain Islamist political parties maintain that Libyan society needs its laws to derive from the Shari'a and for its political leaders to possess Islamic credentials in order for the state to be considered Islamically legitimate. Conversely, other social forces (usually those on the Liberal side of the spectrum such as the National Forces Alliance) state that the political arena is inherently Islamic because the Libyan people are Muslim and that Libya's laws do not need to derive exclusively from the Shari'a, nor do its leaders need to possess personal religious credentials or inclinations for the state to be considered Islamically legitimate. Therefore, despite the relative religious homogeneity of Libya's population, religion has unfortunately become a source of polarisation rather than unification. For more on the history of the contested role of religion in legitimating political authority in Libya, see Sawani (Citation2013). The aforementioned earlier plans appear to have been scrapped because the NTC was afraid of too quickly losing power to be able to shepherd the transition. Our private conversations with former NTC leaders indicate that they understood by early August that Tripoli might fall abruptly after which point their authority and legitimacy would wane. Second, the NTC promised to select a whole new cabinet after the mysterious killing of Abdul-Fattah Younis on 28 July 2011 had cast grave suspicions on certain NTC members. Third, Mahmud Jibril was seen by many revolutionaries as having amassed too much authority and he was willing to voluntarily step down to defuse such criticism. The NFSL was established at the beginning of the 1980s by exiled opposition figures. It has always maintained an Islamist orientation, though over time it incorporated other religious tendencies into its ranks in an attempt to transform itself into the most prominent umbrella grouping of the anti-Qadhafi opposition. Historically, many of its leaders belonged to the Brotherhood. For more see Pargeter (Citation2010). In fact, the US Senate is a good analogy for both the advantages and intrinsic unfairness of the federalists proposed electoral method. It would have granted Fezzanis overrepresentation in the GNC relative to Tripolitanians by about ten to one. This is roughly the same ratio by which Oklahomans are overrepresentated relative to Californians in the US Senate. However, the proposed Libyan system would lack a purely proportional representation body like the US Congress to counterbalance the effect of such overrepresentation. In 2013, there is no functioning federal democracy in the world whereby proportional representation does not play at least some component in the composition of the country's legislature. This highlights how peculiar and potentially destabilizing it is that the NTC caved in to federalists' demands for a purely non-proportional approach to apportioning delegates for the constituent assembly. It also illustrates that having extracted this compromise from Tripolitanians and the NTC, Fezzani and Cyrenaican delegates have many incentives to attempt to build it into the way the future constitution structures the permanent legislature. Second Author conversation on 4 March 2013 with former Libyan prime minister Elect Dr Mustafa AbuShagur. He related that in a poll conducted on his Facebook page over 200,000 Libyans voted for their preferred method of generating the constitutional committee and over 93% favoured election (i.e. even the vast majority of those from Tripolitania who would be thought to benefit from selection rather than election). For a comparative study of other cases of concurrent elected legislatures and separately elected constituent assemblies, consult Lorianne Toler Updike, 'Anticipating Sovereignty Power Plays: who will exercise it for Libya?', Libya Herald, 5 August 2013. http://www.libyaherald.com/2013/08/05/anticipating-sovereignty-power-plays-who-will-exercise-it-for-libya/She highlights the Icelandic example, where similarly to Libya, the Parliament possesses both oversight capacity and the requirement to ratify the drafted constitution. This arrangement led to the failure of the Constitutional drafting, ratification, and implementation process. See for example the 1890 'Report on Tripoli, Barka and Fezzan' preserved in The National Archives, WO 106/5962 and authored by Captain Charles Edward Callwell, then Staff Captain at the Intelligence Division of the War Office, who would later distinguish himself as a theorist of insurgency with his famous book Small Wars. He alleges that The Qaramanlis completely conquered Fezzan and Barqa and that the Ottoman reconquest and administrative practice from 1835 until 1879 substantially unified Fezzan, Barqa, and Tripoli into one unit and that later Ottoman practice in separately administering Barqa after 1879 as a separate Muttasarif reporting directly to Istanbul was not particularly relevant in undoing the commercial and cultural connections between the regions. This section draws on Sawani (2003b). The Tubu are another ethnic group who are considered by Amazigh activists as being Amazigh even though, unlike the Tuareg, their language is not in the same family as Tamazight. They represent .02% of the country's population numbering only in the tens of thousands. Citing both racial and linguistic characteristics, most Tubu activists do not however consider themselves to be Amazigh. Full text of the statement issued is available on Ahewar.org. See "Bayan al-I'tisam al-silmiy al-madani li-Amazigh Libya bi-Maydan al-Shuhada' ihtijajan 'ala 'adm dustra huquqihim w-iqsa'ihim wa-tahmishihim min al-musharika fi al-hukuma al-intiqaliyya al-mu'aqqita." Wikala Anba' al-'Ummal. 6 December 2011. http://www.ahewar.org/news/s.news.asp?nid=745414 For more on the long-term ethnic and tribal issues in Libya and how 2012 has been far more violent for Libya's minorities than 2011 consult Smith (Citation2013

Constitution · Constitutionality · Political science · Politics · Sovereignty · African Studies and Geopolitics · Global Peace and Security Dynamics · Global Political and Social Dynamics · Law

Tools

Open DOISci-Hub