By Lorianne Updike Toler.
London, 27 November 2014:
Oil and the money its extraction generates . . .[restrict]are behind many of the issues facing Libya today. These issues include regional discontent and division, militia-related security problems, and lost confidence in management of Libya’s oil wealth. Many see the country’s new constitution as the solution to these oil-related problems.
But can the new constitution solve the central issue of oil governance when it seems many other countries within the Middle East and North Africa (MENA) region have been unable to do the same? The more oil a country has, the more likely it is to be plagued by the “resource curse” of corruption, lack of transparency, and authoritarianism.
It is tempting to think that constitutional provisions specifically addressing natural resources—such as those requiring transparent oil contracts or allocations of oil revenues to subnational regions —are the key to better governance in the sector. While these specific provisions are important, for best results, framers should also think of the constitution’s general provisions as an opportunity to set the tone of governance of the sector.
General constitutional provisions and structures that apply beyond oil can help foster a more stable political culture. Ensuring transparency as a general rule can help the citizenry hold its government accountable. Establishing structures that create a balance of power between branches of government can help the government better govern itself. Both transparency and accountability are especially crucial in the oil sector, and will help Libya escape the “resource curse”.
Transparency provisions within a constitution allow the people to hold the government accountable for the disposition of public property, including natural resources like oil. In a perfect scenario, transparency provisions would enable a concerned citizen or journalist to find information about corruption or conflicts of interest. Such a conflict could, for example, include a situation where an oil contract is awarded to a company partially owned by a relative of someone within the oil ministry.
The most central constitutional transparency provision is the right to information—also called a freedom of information (FOI) provision. This right is recognised in Article 19 of the Universal Declaration of Human Rights, and legally protected by 74 countries. The right is increasingly recognised in constitutions, especially in new democracies. The “right to access information” is a more specific subset of FOI rights that guarantees the opportunity to seek and receive information, and is therefore more helpful to citizens.
Within the MENA region, the most recently drafted constitutions are more likely to contain stronger transparency provisions. For instance, the newly ratified Egyptian and Tunisian constitutions include the more specific “access” right. However, there appears to be an inverse relationship between the amount of oil a country has and the presence of transparency provisions within its constitution. Five of 17 constitutions in MENA region countries contain FOI provisions, yet the most oil-rich regimes—Saudi Arabia, Iran, Iraq, Kuwait, Algeria, the UAE, and Qatar—provide no constitutional protection of the right to receive information. There may also be a negative correlation between natural resources and actual transparency. For example, Saudi Arabia, which produces the most oil within the region, received a failing assessment from the Natural Resource Governance Institute on its Resource Governance Index, a transparency ranking.
Other constitutional provisions of so-called “general applicability” (meaning not specific to a particular sector) intended to foster transparency include requirements that legislative meetings be open to the public and that the written records of meetings be kept. In Libya, when the GNC was in session, although a few seats were reserved for civil society subject to intensive security clearance and some plenary sessions were broadcast, GNC committee meetings were not open to the general public, nor did the GNC keep written records of plenary or committee meetings with any regularity. NGOs such as H2O and Bokra did provide a partial solution to the problem through their “Eye on the GNC” project. But limited access to proceedings, or the lack of any official records of them, means that Libyans, in whom true sovereignty lies, had a difficult time knowing or finding out how they were being governed under the GNC. This lack of transparency contributed to discontent with—and ultimate replacement of—the GNC, as well as the lack of confidence in the former and current governments.
Denying citizens and the media access is unusual in a democracy. All legislative proceedings in older democracies are generally open to the public in some fashion (mostly in person, but increasingly via live broadcasting). Even within the MENA region, most countries (12 of 17) require open parliamentary meetings. In new democracies, constitutions usually contain an open meeting requirement.
Record-keeping is implied by a FOI provision: there must be records for the public to access. Although older constitutions do not generally contain record-keeping provisions, most older democracies do in fact keep comprehensive records. Newer constitutions generally contain such a requirement, although in the MENA region only four of 17 countries require record-keeping. Among recent Arab constitutions, the Moroccan constitution (Article 68), but not the new Egyptian and Tunisian constitutions, requires legislative record-keeping.
While “vertical transparency” allows citizens to hold their government accountable, “horizontal accountability” as used here allows one branch of government to hold the other branches accountable for corruption or mismanagement (which are often discovered by citizens or the media leveraging vertical transparency in a transparent system). For example, the members of the legislature can—and in Libya’s case, have—questioned and removed the executive through votes of no confidence as permitted or required by the constitution. Accountability could also involve the judiciary charging legislative or executive officials with theft, conspiracy, or embezzlement where applicable.
Legislative oversight of executive functions comes in varying constitutional forms throughout the MENA region. Egypt, Iraq, and Tunisia’s constitutions allow the legislature to question and remove the prime minister and specific ministers, including the oil minister. In Morocco, only the prime minister may be questioned and removed (and with him or her, the government). In Kuwait, specific ministers but not the prime minister (appointed by the emir) are removable. Questioning usually takes place in the form of a hearing, yet the Tunisian and Kuwaiti constitutions both specify that the legislature may also submit written questions. Lesser offences by the government may incur a censure rather than a vote of no-confidence in Tunisia and Morocco. In Kuwait, each ministry, upon formation of a new government, is obligated to submit its program to the legislature.
Specific accountability provisions are necessary but insufficient to provide true accountability, which must reinforced by a robust separation and balance of constitutional powers.
A history of the separation of powers, conceived by the Greek historian Polybius when the ancient Libyan polities of Tripolitania, Sebha, and Leptis Magna were at the height of their powers, is treated in a previous Libya Herald article by this author. Today, most constitutional systems still seek to separate, balance, and check governmental powers. Several constitutions in the MENA region specifically identify separation and balance of powers as a primary constitutional goal, including the constitutions of Egypt, Morocco, and Iraq.
Despite paper guarantees, for oil-rich countries within the MENA region and elsewhere, there has been little separation and balance of powers in practice. Vast oil reserves such as those in Libya pose a particular challenge to separation and balance of powers, as the powers of the executive or authorities in oil-rich regions are greatly amplified by oil, and difficult to contain.
In Iran, which has a pseudo-presidential system, the legislative and judicial branches were too weak to curb the over-reaching of president Mahmoud Ahmadinejad, who also proclaimed himself president of the state oil company. In Kuwait, implementation and real separation of powers lasted only so long as the “father of the Constitution,” Abdallah III Al-Salim Al Sabah, was emir. After his death in 1965, Kuwait’s post-constitution history has been pocked with parliamentary dissolutions, rigged elections, and absent parliaments. In Iraq, oil funds managed by the executive have been misappropriated with impunity, and high levels of corruption abound despite constitutional accountability provisions. Additionally, the government of the oil-rich Kurdistan region has taken oil sales into its own hands, which is viewed by many in Baghdad as a violation of the constitution. Access to oil seems to enable national executives or regional authorities who control the resource to significantly expand their power.
If separation and balance of powers is so vital in ensuring both accountability and transparency, and yet so difficult to maintain, especially within an oil and gas context, what is to be done? Although well-constructed constitutional texts may help to avoid problems, superficial commitments in constitutions, like those in Egypt, Morocco, and Iraq merely identifying separation and balance of powers as a goal, are not enough.
What oil-rich countries need more than textual commitments is to provide each branch with enough power to resist the encroachments of other branches. A constitution is more likely to succeed when the text as a whole endows a branch of government with sufficient power to both do its work and prevent others from encroaching on its power. If power is divided disparately, the dominant player will use its advantage to consolidate power. It is only through the equitable division of power— horizontally between legislative, executive, and judicial branches—that constitution-makers can accomplish separation and balance of power, especially within an oil-rich country like Libya.
Well-constructed constitutional texts are helpful but insufficient to guarantee good natural resource governance. Constitutions should contain vertical transparency provisions—including an access to information right, open meeting guarantees, and record-keeping provisions. They should also contain clauses allowing for horizontal accountability—including the legislature’s power to question the executive—which are helpful in creating a legal environment conducive to good oil and gas statutory schemes and governance. But provisions on parchment alone cannot contain the corrupting power that oil fuels.
The kind of power oil lends a government can be appropriately contained and controlled by breaking it into smaller pieces through the separation and balance of power. Unless the power of each part of government in an oil-rich state is comparable to other parts, the strongest part will grow and become dominant at the expense of the others. Equitable division of powers will instead permit each part to hold the others in check.
Designing a Libyan constitution that equally separates and balances will require that the Constitution Drafting Committee (CDA) be independent from those who could lobby or even require an imbalance in their favour. Further, the CDA should use full and frequent plenary discussions and review of draft texts, rather than authorship by committees (which was the case in Tunisia’s constitution drafting), in order to help to foster true separation. Finally, the CDA should retain experts on constitutional structure and separation of powers.
Following these guidelines and incorporating constitutional texts relating to transparency and intra-governmental accountability, as well as providing for an equal balance of powers, will help to ensure that one branch of government—or one region in the country—cannot capture the power of Libyan oil again, and that all Libyans will benefit from the blessings that oil can bring.
Lorianne Updike Toler is a constitutional legal historian and founder of Libertas Constitutional Consulting.
The views expressed in Opinion Articles do not necessarily reflect those of the Libya Herald.