By Lorianne Updike Toler
Tripoli, 2 February 2013:
Thirteen separate legal entities with different cultures and climates with little trust between them faced a common enemy. Eventually the separate entities were able to join political and military forces and defeat the largest superpower then in existence, the British. Part of declaring independence for the thirteen North American colonies in 1776 involved hurriedly writing a constitution in 1777, the Articles of Confederation.
After the American Revolution, the lack of a common enemy made unity much harder to accomplish, and it was another 11 years before the states of Massachusetts, New York, Pennsylvania, Virginia, South Carolina, etc. were able to coalesce into “We the People of the United States of America” under a 1787 constitution that still stands today.
Similarly, the various regions of Libya were able to overcome differences to overthrow their common dictator in Qaddafi. This despite regional differences and distance.
Now that Qaddafi’s threat is removed, however, unity is proving much hard to come by, especially when it comes to the monumental task of writing a constitution.
Just as a mythological snake coming back to life if its pieces were reassembled before sunset, Libyans have a closing window of opportunity, especially in light of looming 15 February protests, in which to piece together its vital parts and birth a successful constitution.
As discussed in a previous article in this series, Libya has all of the pieces of a successful constitution. It has robust, competent civil society organisations, an international community respectful of Libyan autonomy, and a GNC that is not yet dominated by political parties.
Yet if the major constitutional players do not quickly come together to plan and execute Libya’s constitutional process, they risk not only running at cross purposes, but of stalling the process unnecessarily, losing public trust altogether, and spiralling into dangerous chaos.
In an effort to facilitate transparency for the public generally and constitutional coordination between civil society, the international community, the GNC, and government, this article will provide a detailed reporting of the major constitutional efforts of Libyan civil society.
The largest multi-organisational constitutional initiative within Libyan civil society revolves around promoting what has become known as “the manifesto.” This grassroots document was designed with the help of an international constitutional expert in late August 2012. It reflects the desires of a quickly-growing body of civil society organisational signers (now 325) for inclusivity, transparency, and participation in achieving “the goals of Libya’s democratic revolution” through the constitutional process.
Somewhat similar to the Civil Society Monitoring Mechanism in Zimbabwe, the manifesto requests the GNC to define Libya’s constitutional roadmap to include a longer constitutional timeline, inclusion of women, minorities, and academic and other experts on the Constitutional Commission, civic education, public consultations, and transparency guarantees.
One of the first signers in August, Molay Jadeed—then head of the Sons of the Desert, now High Commission of Libyan Tuareg chairman, a newly-formed commission bringing together 126 Libyan tribes—explained his support of the manifesto: “We did not guarantee our right to participation and transparency in the GNC. We will not make that mistake with the Constitution Committee.”
The manifesto was warmly received by the entire GNC legal and constitutional committee at an Institute for Democracy and Electoral Assistance (IDEA) conference 31 October 2012. Specific action were requested. Yet the effective replacement of the legal and constitutional committee with the constitutional dialogue and outreach committee at the end of November halted further discussions. The new committee is tasked with recommending whether the GNC proceed with an election for the constitutional committee—as required by the 5 July constitutional amendment—or reverts to the original plan of selection by the GNC. Adopting the manifesto is therefore beyond the committee’s mandate.
To facilitate adoption, the initiative has formed themselves into a loose civil society constitution network over the last two days. This has involved organising and training a “national coordinating committee” of 28 from across the country—at least two from each electoral circle, and three for Benghazi, Tripoli, and Sebha. Coordinators were chosen based on nominations from Libyan civil society and international non-governmental organisations.
The coordinators are charged with engaging other CSOs within their electoral circles over the next six weeks to join the network by signing the manifesto and lobbying local councils and other local leaders, including tribal and religious leaders—all in an effort to apply pressure on the GNC to adopt the measure.
Meanwhile, other organisations are focusing on an element found in the manifesto: public consultations. As detailed in the last article in this series, the Forum for a Democratic Libya (FDL), with support from UNDP, has begun a series of 15 dialogues across the country to gather public feedback on five constitutional topics for the GNC and constitutional committee.
The organisation grew out of a series of revolution-vintage experiential workshops designed to train fellow Libyans about the obligations of self-governance. Instead of lecturing Libyans on democracy, participants, after being given general guidelines, took to the floor to debate and discuss the obligations of citizenship and the general framework of government.
FDL founder Amr Ben Halim said the workshops “were very successful, and they resonated with the people in a way that surprised us. We invited people from academia, political parties, and the religious community to observe, so that they were comfortable with what we were doing. There was no political or ideological agenda—we simply wanted to create a forum for people to express their ideas.”
During the summer of 2011, the workshops were soon so popular that 23 facilitators were trained in a week-long intensive programme to run their own hometown workshops. In September and October of 2011, Amr founded FDL in Benghazi, with technical support from experienced ex-CSO partners from Lebanon. After the revolution, the constitution became a hot topic because it was fundamental to the Libyan democratic experiment. A series of dialogues on the constitution began, and the concept for the current series of national dialogues was conceived.
Another Libyan CSO, Lawyers for Justice in Libya (LFJL), a manifesto signee, has already completed a civic education and constitutional dialogue campaign. With support from the Maddox Jolie-Pitt Foundation, LFJL kicked-off its media awareness campaign in August—complete with graffiti and musical composition competitions—and conducted a Rehlat Watan tour to over 30 communities within Libya’s three regions beginning 21 November 2012. The tour was run by local Destoori (or “my constitution” in Arabic) Guides who encouraged residents to fill out 30-minute constitutional questionnaires and engaged them in constitutional games.
“We found that while several communities were initially slightly cautious and dismissive upon our arrival to their cities, these doubts were quickly put to one side, once it became clear our intention was to listen and help answer questions, rather than to preach ideology,” said LFJL Director Elham Saudi. “There was a real hunger from participants to learn about the constitutional process and have their voices heard.”
LFJL is currently compiling the information from the surveys and the experiences of the Destoori Guides in drafting a report with key recommendations for the Constitutional Committee.
The University of Benghazi’s Research Centre, as also mentioned in another article in this series, is also collecting constitutional public opinion, but in the form of quantitative polls rather than qualitative discussions.
The concept of polling grew out of the desire of an ex-beekeeping economics academic to contribute in some way to the revolutionary effort. Voluntary work lead to a directorship at the Benghazi Research Centre and a short-lived partnership with Oxford in the spring of 2011 wherein public opinion surveys were conducted.
In preparation for the constitutional survey, the Centre has undergone a three-part process to design the polling questionnaire. First, the Centre used the Comparative Constitutions Project’s data about 184 constitutions currently in operation, to design the survey concept. Second, they conduced ten focus groups in various regions of Libya to explore general constitutional issues. As part of this qualitative stage, they spoke with experts in law, Sharia, finance, economics, geography, and public administration to further develop the questionnaire.
The next phase of the project, conducting the survey, will begin in February and conclude by no later than early March. The scientific survey will collect information about what Libyans want in their constitution, including the role of Sharia, the system of governance, the structure of the country, the identity of the country as Muslim or Arab, the name, the flag, and the economic system among other topics.
The random sampling of 2,252 Libyans is designed to permit generalisations about Libyans with a confidence level of 95% for Libya in general (with a 2.5% margin of error); for each of the three regions (with a 5% margin of error), and for the various races found in Libya.
“We are following a procedure and methodology that will ensure that all Libyans have a fair and equal opportunity to participate,” said Dr Fathi A. All, executive manager of the Research Centre.
Additionally, a comprehensive survey will be conducted of various public actors, including 300 randomly-selected civil society organisations, 100 private sector companies, 100 members of government, with access to decision-making processes, both centrally and regionally, and all 200 GNC members.
“The voice of Libyans as expressed in this survey will be delivered to policy makers both in and outside Libya and to Libyans themselves,” said Dr Fathi. “If we want to be democratic, we should start practicing democracy, and polling and surveying are an important element to democratic processes.”
Key leadership of the GNC has expressed interest in the results of the survey. Such leadership includes GNC President Mohammed Magarief and Vice-President Jumaa Ahmad Atigah. At least three other members of the GNC from the now-defunct legal and constitutional committee have indicated interest, and the surveying of government officials will be done with the knowledge of the Ministry of Culture.
The Benghazi Research Centre survey is supported by the European Union and UNDP.
Yet another quantitative constitutional public consultation effort is that of H20, a university student-turned-revolutionaries-lead group founded in the first month after Tripoli was freed on 20 September 2011. It is also a manifesto signatory. After participating in several civil society workshops popular at the time, a group of life-long friends brainstormed what they could do to aid the transitional effort. They landed upon facilitating idea and information sharing between Libyan youth and government.
The group took the 3 August 2011 Constitutional Declaration as their guide in establishing a multi-part project. It began with a civic awareness campaign about the NTC generally. This was followed by monitoring the 7 July 2011 election in Tripolitania and conducting a voter education campaign.
In partnership with Creative Associates Libya and USAID, H20 members underwent rigorous methodological training to prepare a youth questionnaire. This they will take via bus to 74 cities and villages in Libya to survey 4,000 youths aged 15-39. The Western region was surveyed the last ten days of November, and the South and East will be covered in March during the break between semesters (H20 leadership are all still in school).
“We have designed the questions so that a regular citizen can understand and focus on the needs of youths in the constitution,” said co-founder and project manager Ala’a Elganbur. “This can be particularised to various areas. For instance, in the Nafusa mountains, we found youths who refused to take our survey, because they cannot read or write in Arabic.”
Once the survey is completed by the end of April, H20 will use its results to draft recommended constitutional articles and texts. These will be given with the survey results to the GNC and the Constitution Committee, who will then be lobbied to incorporate the text into the new constitution.
In comparative perspective, the Benghazi Research Centre and H20’s efforts to quantify the people’s desires scientifically and incorporate them into Libya’s constitutional design are unique. There was a non-scientific volunteer telephone poll conducted during Somalia’s constitutional process by Voice of America. In East Timor, a survey prior to the election of their constitutional assembly, assessing knowledge of the election and democratic principles generally. It was conducted by the NGO Forum’s Working Group on Voter Education and designed by research firm AC Nielsen. IDEA also conducted a fairly comprehensive quantitative and qualitative study in Nepal between 2004-2007, regarding citizen and parliamentary views on federalism and democracy generally. Finally, Vote Compass polled Egyptians regarding articles in their constitution before the referendum. Yet none of these polls was initiated and conducted by an in-country research Centre and none was aimed at gathering scientific data to influence the constitutional process.
According to Interpeace’s Constitution-making and Reform: Options for the Process, as of its writing in early 2011, the authors were “not aware of a constitution-making body that has conducted a questionnaire-based survey using a probability sample.”
If the GNC and Constitution Committee were to accept and use the results of both the Benghazi Research survey and H20’s survey, it would be making constitutional history.
The combined effect of the GNC and Constitution Committee’s use of FDL’s qualitative public consultation and the Benghazi Research Centre and H20’s quantitative consultation, would truly make Libyan constitutional process exceptional and a global model in constitutionalism. Although other countries can boast active public participation programmes (Uganda, South Africa, Kenya, Iceland, and the United States), none would be as scientific or comprehensive as that being conducted by Libyan civil society. The key, as spelled out in the previous article in this series, is the incorporation of this information into the constitution.
Yet another civil society organisation, or consortium of organisations, is contributing importantly to Libyan constitutional process. Banded under the motto, “Where are you for the Constitution ?” a group of seven women’s organisations have combined to lobby for a minimum quota of 35% participation by women on the Constitution Committee and specific constitutional guarantees for gender equality. The consortium embraces Libyan Women’s Peace Platform, Libyan International Women’s Organisation, Moan Nabneena Movement, One Libya, Committee to Support Women Participation in Decision Making (CWSDM), the Libyan Women’s Union in Tripoli and the Free Communications Organisation.
“We know that Libyan women need a lot of education on this topic,” said Nadine Nasrat, Tripoli Branch Manager of CSWDM. “Sometimes we find women who are against what we are doing. Some say that the Quran is against us, but that is not true. All Libyan women should know to ask for their rights and not be ashamed.”
Thus far, the group has garnered 60 signatures from GNC members pledging to support the quota and many more who have made oral commitments. They have not yet met with opposition, including members affiliated with the Muslim Brotherhood.
All in all, Libyan civil society offers much to Libya’s constitutional process. Other countries’ recent constitutional experience (Sudan, Timor Leste, Zimbabwe, Kenya, Nepal) demonstrates that civil society can have an active and important role in monitoring, affecting the timing (both speeding up and slowing down), and involving the public in constitutional processes. Libyan civil society can increase their effectiveness by overcoming self-imposed enclaves and differences of opinion and uniting together. Unity, perhaps provided under the banner of the Manifesto and umbrella of its network, will enable Libyan civil society to engage the international community in enforcing their constitutional aims on the GNC and Constitutional Committee.
This is the tenth editorial in a series on constitutionalism in Libya authored by constitutional legal historian Lorianne Updike Toler, founding president of The Constitutional Sources Project and president of Lorianne Updike Toler Consulting.