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Prince Idris al-Senussi argues in this article that a restoration of the 1951 constitution is the way to get Libya out of its current crisis. But is he really right?
Libya is a deeply divided country. Field Marshal Heftar is considered by many in the East the savior of the country, while most Misrati and many other Tripolitanians consider him as their nemesis. Mos
t citizens of the capital Tripoli reject any major influence of Misrata, the major military power in western Libya, in their city. “Pro-GNA” and “Pro-GNC” militia coalitions are fighting each other in the greater Tripolis area. In the south Toubou and Tuareg are enemies since a long time. The Arab tribes Awlâd Sulaymân in Fezzan and Al Zuwayya in Kufra are fighting each other since centuries. These are just a few examples of many rivalries in today’s Libya.
Since the beginning of the revolution, Libya has had between six and eight prime ministers (depending on how they are counted) attempting to stabilize the country top-down. All of them failed.
A Constitution Drafting Assembly was elected on February 20, 2014, by a couple of 100,000 voters. Now, three and a half years later, there is still no outcome. The most recent draft is a weak compromise, not suitable to provide the framework for the stabilization of Libya.
The failed Libya Political Agreement is still discussed in numerous feel-good meetings, while the country is drifting further apart.
A “military solution” to the conflict is not realistic. No side is powerful enough to defeat all the others. However, this does not mean that no one will give it a try ...
In other words, Libya is on the way to a violent break up.
However, there are some parts of the country, which are more or less stable. This includes most of the northern Cyrenaica, the city of Misrata, the Jabal Nafusah and other regions. A bottom-up approach for the stabilization, building on these “pockets of stability” could be much easier, than the other way around. To this end, it would be necessary to empower the three (historic) provinces to assume responsibility. Eventually, the 10 former muḥāfaẓāt governorates could serve as building blocks.
When the last UN High Commissioner for Libya, Adriaan Pelt worked on the draft of the constitution for the independent country, he faced some of the same regionalism noted today, although not that violent. Pelt argued strongly for a federal model despite UK and Italian ambassadors’ resistance in 1950.
Consequently, a strategy for the stabilization of Libya should be based on an interim constitution which foresees only a very weak role for a central government. The real power should be with the governorates and the (historic) provinces.
The foundation for this process should be for an interim period the – amended – old Libyan constitution of 1951 or 1963, abandoned by Gaddafi in 1969 (with a king or president as a symbolic head of state). From a legal point of view, it could be argued, that the latter is still in place. Amendments must include a formula for the distribution of the oil wealth between the (historic) provinces and - if the 1963 version is chosen - some provisions of the 1951 constitution (e.g. article 36 about the powers of the central government and article 39 about the powers assumed by the (historic) provinces). Head of state should be someone with a unique characteristic, either a well-respected person as a president or Libyan Crown Prince Mohammed Al-Senussi, if he is willing to assume the role for an interim period - and accepted by the Libyans.
The prime minister of the (new) central government should not have a lot of executive power, but more represent Libya to the outside world and chair something like an economic steering board (including National Oil Corporation, Central Bank of Libya, Libyan Investment Authority).
This could be a new role for Fayez al-Serraj, as a head of a technocrat government.
As mentioned, this constitution should be used for an interim period only to allow the stabilization of the country bottom-up. After there is a certain amount of stability, a new constitution should be elaborated and made subject to a referendum. It is certainly up to the Libyans what kind of state they want, but the aim should be to have a final constitution in place within about five to seven years.