On July 16, Libya's legislature, the General National Congress (GNC), finally approved the Constitutional Drafting Commission electoral law which outlines the rules and guidelines for electing the 60 member commission charged with drafting Libya's constitution.
Establishing this constituent commission was one of the main tasks assigned to the GNC in the Constitutional Declaration of 2011 and was originally due to take place 30 days after the first meeting of the GNC (which took place back in summer 2012). However, months of political wrangling over whether the 60 members should be elected or appointed has severely delayed this process, with the decision to elect the commission only being taken in April this year. Once the commission has been elected, they will have 120 days to draft a constitution which will then be put to a referendum.
The electoral law has raised a number of contentious issues including how best to ensure the participation of women and minority groups in the constitution drafting process, whether elections should be on an individual or party basis, and to what extent federalist demands can and should be met. Fundamental disagreements over such points meant it took several days for the law to be approved, and the law's eventual ratification was reportedly only achieved by putting certain interest groups under intense pressure to capitulate.
One of the main sticking points was over whether the law should provide a quota for women within the constituent commission, and if so how large this quota should be. Women's rights activists and the women's bloc within the GNC had been campaigning for the law to provide 15 seats for women in order to ensure that Libyan women's needs, rights and aspirations are recognised and protected within Libya's new constitution[i].
However, opponents of the quota (namely the Martyrs bloc and the Justice and Construction bloc) argued that members should be elected on the basis of merit, not gender. This position is understandable and echoed by much of the Libyan public, yet it is based on a flawed assumption that these elections will provide a level playing field for female candidates where they will be judged on equal terms with their male counterparts. In this highly patriarchal society that is simply not the case. Proponents do not think a quota is necessary because Libyan women are under-qualified but rather that, despite being qualified for the position, they are less likely to be seen as suitable candidates simply because they are not men.
The demand for 15 seats for women was rejected by the GNC and the final draft included only 10% of seats for women, or 6 seats out of 60. The women's bloc abstained from the vote in protest. Ethnic minorities also felt they lost out with only 6 seats assigned between the three main ethnic groups; the Amazigh, the Tebu and the Tuareg. The objection of both women and minority groups is based on the fact that a 10% quota is likely to have little impact on decision-making, given decisions in the constituent commission will require a majority to pass.
Although the ratification of the electoral law is important, as it means Libya's constitutional process can finally move forward, the significant amount of frustration, tension and dissatisfaction which the drafting of this law has created should serve as a warning for the future. Libya desperately needs an inclusive, legitimate constitution on which to rebuild the state and its institutions, and which will allow the country to disentangle itself from the quagmire of this transitional period. However, building consensus should not be mistaken for taking the route of least resistance, and there is a real danger that potentially prickly issues will be skirted around for the sake of pushing the constitution through as soon as possible.
The 60 candidates who are eventually elected must balance a huge range of competing issues and priorities in order to draft a document which the majority of Libyans will accept, and which will stand the test of time. This is no mean feat and with so much to consider it is quite possible that those who shout the loudest will be the ones who are given priority, as opposed to those who speak the most sense. For this reason it is essential that the next stages of this constitutional process engage the public and create dialogue on some of the more sensitive and controversial issues which must be addressed.
Libya's new constitution will form the bedrock of Libya's post-conflict, post-Gaddafi society and as such it is crucial that it guarantees equal rights for all Libyan citizens. Regarding women this should be done by explicitly prohibiting discrimination against women and ensuring that the constitution is consistent with Libya's obligations as a signatory of the Convention to Eliminate Discrimination Against Women. A lack of female participation within the constitution drafting process is likely to mean that key gender equality issues will be subverted as other issues are given greater importance in the process of dialogue, negotiation and consensus building.