Libya’s parliamentary elections in July went smoothly for a country dealing with the aftermath of a civil war and four decades of autocratic rule. But forming a government to replace the interim National Transitional Council (NTC) and progressing plans to draw up a new constitution have been difficult. The NTC was officially dissolved in August, handing over power to the new 200-member parliament, the General National Congress (GNC), another interim body, tasked with drafting a constitution ahead of a new round of elections in early 2014.

“All … laws are in force, to the extent that they do not conflict with the temporary constitutional declaration”

Tareq el-Tumi, Hogan Lovells

The NTC codified the spirit of the 17 February revolution in a temporary constitutional declaration on 3 August 2011, setting out a plan for Libya’s transitional period. A permanent constitution has yet to be drafted and put to a national referendum, meaning many pre-revolution laws remain in effect.

“At the moment, all Libyan laws are in force, to the extent that they do not conflict with the temporary constitutional declaration in relation to things such as civil, political and economic rights,” says Tareq el-Tumi, a senior associate at UK law firm, Hogan Lovells. The firm represented the NTC during the revolution in recovering frozen Libyan funds in the UK.

Crucial role

“The drafting of the constitution raises several interesting questions that will affect how business is done in Libya in the future and the economic climate in general,” says El-Tumi.

The role of the state in the economy will be crucial to the constitution. Libya has always been a state-driven economy. “Will we continue to see centralised bodies with overall strategic control over national projects, or in line with the current hot debate of decentralisation? Will we see more regional autonomy for locals to develop their own fiscal policies, their own regulatory frameworks, and methods to deliver services?” says El-Tumi.

How the GNC will draw up its draft constitution will be a key test of how the body plans to pass laws under its short reign in Tripoli. “It could draw up a committee of lawyers, or members of congress elected by the public to draft the document, or [it could open] doors to civil society to contribute to its drafting.” says El-Tumi.

Many fear the GNC will choose its constitution drafting committee members on the basis of their appeal to Libya’s various regions, rather than their merits as legal scholars. The body has not even decided on the number of members the committee will have. The idea of 20 members from each of Libya’s three regions, Cyrenaica, Tripolitania, and Fezzan, has been mooted but remains unsettled.

There is also disagreement on whether the body should be appointed or elected. An elected committee could see a resurgence of the call for a federal Libya. This was manifested in the run-up to the GNC elections through roadblocks and the takeover of government buildings.

These are just a few of the questions now being asked across the country. The scale of Libya’s legacy is enormous and the GNC will have a tough time dealing with the ghosts of more than 40 years of autocracy and corruption. At the same time, the level of expectations from

ordinary Libyans is still high, following their achievement in bringing Muammar Gaddafi down, and their recognition that Libya has, so far, not lived up to its enormous potential since.

Legal review

One of the most persistent legacy issues is corruption. This will not disappear overnight and will require consistent and systemic efforts to stem and eventually halt it.

“The GNC has a clear mandate to lead the country during the critical stage of constitutional creation”

Salem Gnan, adviser to Libya’s president

Greater transparency will require the reform of the complex state audit process, which entails committee approval for signing government contracts and issuing invoices, adding to the potential for corruption. The basic legal and regulatory framework is in place, but it will also require the enforcement of existing anti-corruption laws.

“A legal review process is being undertaken by the GNC at the moment, which will hopefully see an improvement in the quality of the laws, by the inclusion of Libyan civil society and other actors,” says El-Tumi.

Muhammad Magareif, chairman of the GNC, is the de facto president of Libya, says Salem Gnan, an adviser to the president, speaking at MEED’s Libya Focus Day in Dubai on 5 December.

“The GNC has a clear mandate to lead the country during the critical stage of constitutional creation. It also acts as the legislative arm of the government,” says Gnan.

Political progress has been held back by the composition of parliament. The National Forces Alliance coalition led by Mahmoud Jibril, a rebel leader during the 11-month conflict in 2011, won 39 seats in the elections, the largest number of any single group. The parliament, however, is dominated by independents who hold 120 seats.

Mustafa Abu Shagur won the congressional vote to lead the GNC as prime minister, but his premiership was torpedoed by a vote of no confidence after he failed to gain enough support in his attempts to form a sustainable government. By September, Abu Shagur was forced to resign and was replaced by Ali Zeidan.

Shagur’s resignation caused considerable delay to the formation of a government and added to the political turmoil in Libya.

Zeidan, however, is seen as a much more credible independent candidate, according to delegates speaking at a meeting of the Libya working group of London’s Chatham House think-tank in October. One said he had “strong anti-Gaddafi credentials and a career in exile as a human rights lawyer”.

Zeidan’s government was sworn in at the GNC in Tripoli on 14 November following two weeks of wrangling. However, five posts were left vacant, following the resignation of one minister and the dismissal of four others by the Transparency & Integrity Commission for their connections with the Gaddafi regime. Among them was Ashour Shuwail, the interior minister candidate who was previously the head of the Benghazi police, when the revolution erupted in the city in early 2011.

Having seen his appointment initially blocked by the commission, Shuwail successfully appealed and now heads up the ministry with grand plans to improve security. In this he has considerable support among ordinary Libyans, who want to see the back of the militias.

Illegal militias

One of the key challenges facing any elected government, particularly one with a guiding council behind it, is how to maintain the development of long-term strategies, while also finding popular fixes to satisfy those voices demanding instant change.

As much as GNC and NTC members insist that security is improving and the headlines are exaggerated, safety remains at the forefront of investors’ minds when considering Libya as a destination. On 25 December, the Interior Ministry announced plans for the withdrawal of heavy weapons and the dismantling of the illegal militias across Libya, which are “hampering the government’s efforts to implement its development programmes”.

In the run-up to the formation of the government, the GNC’s own assembly hall was occupied at least five times by various armed groups, which stormed in to protest various issues affecting their localities, demanding the appointment of their favoured congress members.

Just over a year ago, the government issued a decree demanding the disbanding of militia checkpoints in Tripoli, but it took months before the armed groups would acquiesce.

It is unclear whether the new government under Prime Minister Zeidan’s leadership can achieve its security goals, reigning in the groups and enticing them to join the Libyan National Army.

The brigades are led by the Supreme Security Committee (SSC), which has nominally pledged loyalty to the GNC and is meant to act only under orders from Interior Ministry, upholding the law in absence of a nationwide police force.

Zeidan has promised to disband the body, but has not set a time frame for a replacement.

Benghazi, the birthplace of the Libya revolution, has seen more than a dozen killings targeting security officials, many associated with the old regime, culminating in the murder of former city police chief, Farag al-Dersi in mid-November. But the government’s lack of control is nowhere more evident than in the city of Bani Walid, in the western Misrata district, one of the last Gaddafi loyalist strongholds to fall to the revolution. The city was resolutely defended through the nine-month conflict until it was finally taken on 17 October 2011.

Stubborn influence

The GNC passed a decree in October 2012 ordering Libyan National Army forces to enter the town, following the killing of Omran Chaban, the militiaman credited with capturing Muammar Gaddafi. The decree, which was far from unanimous in the congress, resulted in a militia assault on the city and a siege lasting 20 days.

The Libya working group at Chatham House says shaking off the militia’s influence will be a difficult task, given the state’s continued reliance on them to maintain a degree of security, while its own law enforcement capacity is found wanting. The strategy has sown the seeds for the country’s descent into fiefs, with local brigades and their tribal patrons now having leverage over the weak central government in Tripoli, which has ceded significant authority.

Sixteen months on from the fall of the Gaddafi regime, Libya’s first democratically elected government is still struggling to assert its authority. The writing of a constitution that the entire country can fall behind is essential to securing the future of Libya as a single entity.