Monday 23 May 2022 | 10:14 | SYDNEY
Monday 23 May 2022 | 10:14 | SYDNEY

Libya mysterious new constitution (part II)

8 September 2011 10:18

Minerva Nasser-Eddine is a Research Fellow in the School of International Studies, Flinders University.

My earlier post summarised the main elements of what is an impressive draft constitution (although the origins and status of the document remain unclear). But two Articles do stand out and require attention. First, Article 6 of the draft charter states that:

Libyans shall be equal before the law. They shall enjoy equal civil and political rights, shall have the same opportunities, and be subject to the same public duties and obligations, without discrimination due to religion, belief, race, language, wealth, kinship or political opinions or social status.

Of concern to women and other activists is that gender and age are excluded. Also in Article 6, following this statement, comes: 'The State shall guarantee for woman (sic) all opportunities which will allow her to participate entirely and actively in political, economic and social spheres'.

Does this mean Libyan women shall enjoy equal civil and political rights? Are the same opportunities available to women, without discrimination? If so, why is this added in the latter part of Article 6? How are opportunities and participation going to be determined, and by whom? Women have participated in the Arab Spring protests and revolts; to exclude or marginalise them will reverse some of the accomplishments to date, and will raise alarm bells regarding the nature of the role of women in a new Libya.

Article 29 is even more worrisome. It states: 

...the members of the TNC, of the interim government and of the Local Council may not nominate for or assume the position of the President of the State, the membership of the legislative councils, and Ministerial portfolios.

This provision is repeated in Article 33 under the heading 'Conclusive Provisions', perhaps implying a degree of entrenchment (although that is not explicitly stated).

Such a provision is unheard of in any post-conflict environment. The Obama Administration and many EU countries (particularly France and Italy) have invested greatly in endorsing and recognising the NTC as the legitimate entity representing the Libyan people. If there is no continuity of NTC members in a post-Qadhafi government, it will create huge uncertainty for the US, its allies, regional players and Libyans themselves.

This approach may give many young, ambitious professionals a chance to be elected to parliament but it may also give many of the old elite an opportunity to re-enter government and resume their hold on power. Tunisia and Egypt have managed to remove their corrupt presidents. To date, however, they have not succeeded in displacing either the old political elite or corrupt elements of their political systems.

The current NTC Chairman, Abdul Jalil Mustafa (pictured above with UK Foreign Secretary William Hague), and Vice Chairman Abdul Hafiz Ghoga have become the public and international faces of the Libyan rebellion. Yet their own document disallows them from holding a position in the post-Qadhafi government. Despite their professional experience and involvement in the overthrow of the Qadhafi regime they will not be able to share their knowledge in government.

This raises a number of questions, the first regarding the legitimacy of the draft constitution: who drafted and influenced it? Secondly, have individuals associated with the NTC been involved in a truly benevolent act (the overthrow of a brutal regime) with no desire to continue a job they started? Did they make these intentions known to US Secretary of State Clinton and French President Sarkozy in the negotiations which secured military assistance? Is there a potential leader sitting quietly in the background agreeable to the key players? If so, who?

How will this affect America's AFRICOM ambitions (ie. establishing permanent US military bases in Africa)? In light of the WikiLeaks cable release, which highlighted the close collaboration between the US Government and the Qadhafi regime, one needs to ask, 'does the removal of the Qadhafi regime now clear the way for the US to pursue plans for integrating Libya into AFRICOM under what the Americans must hope will be a pliable regime?'.

Of course, we don't yet know whether this draft constitution or something similar will emerge as the final governing document for a new Libyan regime. It seems more than likely that some changes will be forced to suit the geo-political interests of the big players interested in this conflict.

Photo courtesy of Foreign and Commonwealth Office.