*LFJL calls for an inclusive and transparent constitutional drafting process

LFJL welcomes the commitments to transparency and inclusiveness offered by Ali Tarhuni, the head of the CDA, at a press conference on 1 May 2014. LFJL also acknowledges the effort of the CDA to advance the process of writing the constitution as well those of the High National Election Commission (HNEC) in holding elections on 26 April for five unfilled seats. However, LFJL notes that the CDA is still not fully constituted, and remains concerned by the CDA’s decision to hold its first meeting on Monday 21 April 2014, without 12 of its members.  In its first session, the CDA elected Tarhuni as president and discussed rules of procedure, which have since been agreed on.The commencement of the constitution-making process before the CDA is fully constituted  severely limits the inclusiveness of the process and risks excluding whole communities within Libya. The CDA is charged with the task of writing a permanent constitution for all Libyans.

The CDA held a press conference on 1 May 2014 to provide an update on the progress of the assembly’s work. LFJL welcomes Ali Tarhuni’s references to issues of transparency and inclusiveness. The decision for all assembly members to carry out public outreach in their election districts next week, is a step in the right direction. The suggestions of publishing the recently agreed CDA rules of procedure, and recording all sessions are also welcome. Positive though these measures are, LFJL would like to remind the CDA that they will be redundant if applied to an assembly that does not have a complete set of drafters, and therefore does not represent all constituents.

The initial CDA elections on 20 February 2014, as well as supplementary elections on 26 February 2014, did not lead to a fully constituted assembly. Both elections were marked by attacks on several polling stations as well as by the boycott of the elections by the Amazigh and sections of Tebu people.

HNEC is currently conducting a third round of elections for the 12 CDA seats which could not be filled in the first two rounds. Elections in Murzuk and Kufra took place on 26 April 2014, and resulted in five further members being elected (subject to any arising appeals), including two of the positions reserved for Tebu candidates. Election dates for Ubari are scheduled for 3 May 2014, but arrangements for Derna, and Tukra are still unknown. As a result, 7 of the 60 CDA seats presently remain unelected. Amazigh people, and several other communities, are not represented in the CDA.

As LFJL noted in a recent statement, the empty seats severely hamper the legitimacy of the assembly and threaten to jeopardise constitution-making process. More than 20% of the CDA drafters representing significant parts of the population have not been included in the process to date. When and if those the five seats elected on 26 April are filled, more than 10% of the population will remain unrepresented.  Elections for the final seven seats will still need to take place.

The constitution drafting process was already suffering from severe problems regarding inclusiveness due to the low voter turnout of less than half a million Libyans for the elections. Further, the fact that women-only lists were allocated to so few seats meant that many districts did not have the opportunity to vote for a female candidate at all. These issues seriously affect legitimacy, and are further hampered by the decision to commence drafting without a fully constituted assembly.

In light of these concerns, LFJL calls upon the members of the CDA to refrain from taking any substantive or procedural decisions on Libya’s future constitution before it is fully assembled and the remaining representatives have been elected and have taken up their posts. The making of the constitution must strictly adhere to the legal process set out in Article 2 of Law No. 17 which states that the Constituent Assembly will be made up of 60 elected members. LFJL also reiterates its call for the process to honour the commitment made by Libya at the 25th General Session of the Human Rights Council to “ensure participation of all members of society, as far as possible, in the process of drafting the Constitution”. Starting the constitution-making process at the exclusion of large sections of Libyan society might raise legal and constitutional disputes in the future.

Libya’s new constitution, which is supposed to establish a new social contract between the state and the people, will play a central role in shaping the country’s future and therefore requires widespread support of, and ownership by, the Libyan people. It must be representative of Libya’s entire social and cultural fabric, and LFJL urges the assembly to seek the participation and input of as many Libyans as possible. LFJL Director, Elham Saudi, said, “The news that the CDA is taking the issue of inclusiveness seriously is very welcome. We urge the assembly to make the elections for the remaining seats the priority, and to continue and expand their planned outreach activities in order to garner the support of the people.  This is vital if that resulting constitution is to be a lasting document. Libya needs a constitution of substance, and which will achieve consensus.” She added, “LFJL looks forward to sharing the findings of our own Destoori outreach activities with the assembly in due course.”

[You can take part in the Destoori survey here]