By Lorianne Updike Toler.
Tripoli, January 26 2013:
On Wednesday, the Forum for Democratic Libya (FDL), with the support of the United Nations Development Programme, launched a national dialogue initiative to consult Libyan citizens on critical issues regarding the constitution.
According to founder Amr Ben Halim, “The national initiative ‘I want… in My Constitution’ is launched out of our belief that a constitution is not only a legal document but a social contract that includes, indiscriminately, all sectors of society.”
Phases of the campaign include training dialogue facilitators (completed yesterday), hosting public workshops to equip Libyans with skills and tools to participate in an informed manner, conducting 15 dialogue sessions across the country, documenting the process, and submitting the collected information to the constitution drafting commission (CDC).
This project builds on many civil society initiatives such as the “manifesto” of the embryonic “Constitution Network.” The most recent version of the manifesto, signed by around 100 civil society organizations across Libya in September, recommends that public consultations “be recorded to ensure accuracy and integrity and public inputs should be analyzed, collated, and compiled into a report and presented to the Constitutional Committee for its consideration.”
FDL seems to be well on its way to accomplishing the manifesto’s challenge to record pre-draft public consultations. At this stage, FDL has trained facilitators on its tools for citizens’ voices to be recorded and has developed a thorough documentation process. Additionally, FDL will organize the dialogue sessions around several topics: forms of government (whether federal, central, parliamentary or presidential), the use of natural resources (specifically, oil proceeds), the role of women, the definition of equality and freedom, and minorities rights. Finally, FDL will also use the media to reach all sectors of society and to engage it in this initiative during the consultation process as well as to hold the constitutional committee accountable to the people’s will.
The issue, however, of how their public consultations will be “analysed, collated, compiled” in a format easily ingested by the CDC constitutes the next major step to be worked out by FDL.
The problem of incorporation is of no small proportion. In Wednesday’s launch event, Eric Overvest, country director for UNDP in Libya, praised the South African public consultation campaign as a model Libya could learn from. Yet South Africa’s campaign, though admirably successful in generating almost two million public submissions at a similar stage in their constitutional process, also generated doubts by South African civil society and the public at large that the expressed views could ever be seriously considered by the politicians writing the constitution.
Libya can do better than South Africa. To help ensure that the praiseworthy work of FDL and others conducting similar public dialogue might not be wasted, the purpose of this article, the ninth in a series on constitutionalism and the fifth in a series on public participation, is to provide historical and comparative models for the mechanisms of incorporating public feedback into a constitution for bodies designing Libya’s constitutional mechanisms.
South Africa had a secretariat for their Constituent Assembly that processed the public submissions, later summarised by the technical working groups and thematic committees of the Constituent Assembly. The issue there, then, was not personnel, but the inconsistent and varied formats of the publics’ submissions. FDL’s plan to organise participation around themes will help with this problem, but not solve it entirely. Consideration will need to be given as to how, for instance, a topic like the definition of equality and freedom will map to human rights that might appear in a bill of rights. Will specific minorities receive individual textual attention, or will all Libyans be afforded the same kind of guarantees against discrimination in a manner that a court of law may apply in an even-handed manner? Such technical application from policy to constitutional text will require the assistance of those experienced in writing terse constitutional text.
The Citizens’ Committee appointed by Morocco’s King Mohammed VI to draft the 2011 Moroccan Constitution — based on an outline provided by him — was assisted by a consultative body labeled “mechanisme de suivi,” or the “accompanying mechanism.” This consultative body operated as an ombudsman between the Committee and political parties, human rights organisations, labor unions, business associations and other groups or individuals who expressed views regarding the constitution. They provided submissions in the form of entire drafts or key points. Rather than collecting the submissions directly, the “mechanism” relied on localised bodies to gather information for their communities and then pass that up the chain of command to the “mechanism” for processing.
The “mechanism” and process of localised feedback was authorised by the king, thus giving it its legal mandate. However, because the submissions were criticised as unimaginative by some, varying little from the status quo, it is difficult to gage their impact on the final draft. However, the multi-tiered process taking advantage of existing local institutions in gathering public feedback may be a model worth emulating in Libya.
FDL has created a similar tiered structure within its own organisation, thus the Moroccan model may not be a structure they need to emulate. Yet the GNC may consider creating (and funding) a legally-authorised “mechanism” to assist the constitution committee by receiving and structuring public feedback.
Legal authorisation without political will, however, does not ensure the incorporation of public feedback. Despite a March 10, 2003 declaration by the Afghanistan Secretariat of their Constitutional Commission that “commissioners will strive to place [the constitutional aspirations of the people garnered through a public consultation process] within a constitutional framework,” such aspirations were “swept under the carpet in last-minute backroom deal-making.”
According to the legal requirement, public feedback was collected over a two-month period on vague discussion points and principles. From these consultations, the secretariat prepared a report detailing nearly 100,000 collected opinions. Additionally, as in Libya, independent civil society networks held training sessions and consultations.
Yet after all of the feedback generated and work done to process it, none of the public feedback was considered by constitutional drafters who negotiated a brokered constitution. Perhaps the feedback suffered from vagueness in the concreteness of constitution-drafting (a problem FDL may need to address for some of its discussion topics). Yet Libyans can learn from Afghanistan’s failed public participation process by selecting or electing constitutional commissioners who are committed to incorporating public feedback and, ultimately, by rejecting the constitution when put to a referendum if it does not reflect adequate public participation.
Through this sampling of recent constitutional processes, several factors emerge as necessary to successfully incorporate public feedback in Libya:
- A legal mandate to incorporate the feedback;
- An institutional body such as a secretariat, ombudsman, or dedicated public information office to synthesize the feedback;
- Gathering and formatting feedback in a concrete manner keyed to constitutional concepts;
- Drafters committed to incorporating the feedback; and, finally,
- A public willing to hold drafters accountable for doing the same.
While much remains to be done to make use of the feedback being produced by FDL, thankfully, the process of conducting pre-draft public consultations is well on its way.
This is the ninth editorial in a series on constitutionalism in Libya authored by constitutional legal historian Lorianne Updike Toler (reachable at lautoler at gmail dot com), founding president of The Constitutional Sources Project and president of Lorianne Updike Toler Consulting.