Libya's democratic transition is failing. Civil war is tearing the country apart as rival governments vie for power. An international attempt at mediation has produced few tangible results, and those in the know are pessimistic about the prospects for a deal. Meanwhile the economy is grinding to a halt; officials struggle to maintain basic services.
Against this apparently hopeless backdrop, one democratically elected institution continues to function: The country's Constitution Drafting Assembly (CDA), which was elected in February of last year. Based in the city of Al-Baida, in eastern Libya, the assembly is tasked with drafting the country's permanent constitution. The CDA began its work in April 2014 and released preliminary proposals for a draft constitution in December. These are currently under discussion in committees and plenary sessions. While the Interim Constitutional Declaration of August 2011 envisioned an unrealistic timeframe of 120 days for the constitution-drafting process, the CDA interprets the currently relevant provisions as allowing a more flexible timeline.
It would seem highly improbable, at first glance, that this group of 56 people could make a tangible difference under Libya's present conditions. Some Libyans would, indeed, dismiss the CDA as irrelevant to their everyday concerns—not least because of its modest performance to date. More than a year has passed since voters elected the CDA, and most of its committees are not close to agreeing even on first drafts of a text. Nevertheless, the assembly is uniquely positioned to help Libya overcome its dire predicament. While it cannot bring an end to the conflict on its own, it has certain unique qualities that can contribute to a solution.
The CDA is the country's only democratically elected institution that is not openly contested. There is no other body with a comparable standing or mandate. While the internationally recognized Tobruk-based House of Representatives was chosen in a democratic vote, a significant number of its members, mainly from the country's west, have boycotted it. Its legitimacy is challenged by the rival General National Congress, seated in Tripoli. To make matters even more complicated, Libya's Supreme Court decided in November 2014 that the House of Representatives should be dissolved. It is clear that this body is no longer in a position to play an effective role as the accepted forum for solving Libya's problems.
So far, at least, the CDA is not the object of any comparable dispute. It is broadly inclusive; its members represent a wide range of Libya's regional interests, ethnic minorities, and political groups, including people aligned with hardline Islamists who are not taking part in the UN-led dialogue. The country's warring factions have not contested the assembly's legitimacy. It is, therefore, the only forum where representatives from across Libya are still talking directly to each other and which also enjoys a democratic mandate. With mediators still struggling to engage the groups most relevant to securing a peace deal, this makes the assembly a precious resource, one which peacemakers cannot afford to ignore.
Apart from its unique status as a forum, the assembly has a mandate that goes to the heart of the problems that are tearing Libya apart. The underlying causes of the ongoing civil war are, after all, eminently constitutional: How decentralized should Libya be? How should the country's natural resources be shared? Which system of government should be adopted? To what extent should sharia serve as the basis of law? And how should the security sector function? It is exactly these pivotal issues that the assembly's members—representing the most relevant parties engaged in the conflict—are attempting to address.
The CDA, in short, brings together a group of Libyans with full democratic legitimacy who are trying to agree on solutions to many of the issues that any peace process would have to resolve. The question, then, is how to harness this process for the broader peacemaking effort.
For the moment, the CDA continues to work on its constitution-drafting duties in a technocratic mode, as if Libya were a functioning state. The assembly does not interact with any political factions, and its public outreach is limited. At the same time, the civil war is damaging the assembly as well, deepening divisions among its diverse members. The CDA's sketchy communication and cumbersome internal organization are additional challenges. Its presidency had promised to make public a first draft of a constitution in December 2014. What it published instead was a series of competing texts on key chapters, reflecting its members' deep internal divisions.
The CDA should re-orient itself to focus explicitly on contributing to the peacemaking process. This would require substantial changes to its outlook. First, its members should focus on finding workable compromises; too many of their proposals to date have been based on maximalist demands that have little hope of winning majority support. Such challenges are not specific to Libya, of course. Constitution-making always involves a certain degree of horse-trading. Tunisian drafters displayed the art of compromise when they agreed on a constitution last year. For example, they agreed on provisions about the relationship between the state and religion that were not anyone's favored solution, but acceptable to both liberal and Islamic parties.
Second, the CDA needs to find ways to communicate better with the public and with its main constituencies, including armed and political factions. Such communication can use informal channels, if need be, but it must take place. If Libya's various powerful factions are not made part of the process, they will block whatever the outcome may be.
Third, the CDA should adopt clearer and more reasonable timelines that would leave room for wide-ranging public participation and political consultation. Any adjustment of timelines should be done in full transparency with the public; the assembly's members should explain why more time is needed. Rushing the process now makes little sense, since the document will have no chance of becoming a legal reality anytime soon. According to the current legal framework, any draft constitution would have to be adopted by two-thirds of Libyan voters in a popular referendum. But holding a credible referendum under current conditions is simply not feasible. In the first place, Libya's two dueling parliaments would have to pass a law setting out the rules for such a referendum—a nearly impossible task. In any event, the country's main armed groups are unlikely to allow a referendum to take place if they have been excluded from the deliberations leading up to it.
If the CDA can demonstrate its ability to adapt in these ways—and if it succeeds in building a dialogue with all relevant stakeholders—it could, over time, become the accepted forum for finding answers to the long-term questions that divide Libya's factions. The peacemaking efforts led by the UN and other potential mediators could then focus on more immediate practical steps, such as ceasefire agreements, and on interim arrangements, including the composition of a national unity government and a timetable for stabilization and state-building. The CDA has the huge advantage of being a Libyan institution, rather than an international organization, and as such it offers an inclusive forum for addressing the conflict's root causes.
Moving the CDA away from its current technocratic approach and towards a more politicized one has its dangers. It could become more polarized as a result, perhaps even breaking up under the growing pressure. Yet it is worth taking the risk. The assembly can only become truly relevant for today's divided Libya if it accepts that it has a role to play in overcoming the country's divisions and reaching difficult compromises. Making the effort and taking the risk is certainly better than watching another Libyan institution sink into irrelevance.
Disclosure: The authors are employed by Democracy Reporting International, which supports the CDA through a project funded by the United Kingdom and Switzerland.
By Michael Meyer-Resende, Omar Ould Hammady
Published by Democracy Lab, a journalistic joint-venture between the Legatum Institute and Foreign Policy magazine