The Forum for Democratic Libya

In Partnership with

Libyas New Constitution: Towards an Inclusive and Democratic Social Contract

Briefing Report
Insights from: 700 intellectuals, activists, and participants from Active Citizenship and Democratic Participation Workshops in Benghazi, Derna, Beyda, Misurata, and Tripoli (in collaboration with Beyond Reform and Development, July 2011 present) Dialogues in Benghazi and Tripoli (in partnership with Beyond Reform & Development, February 2012 present) Interviews and meetings with NTC members, UN agencies, civil society organizations, women and youth groups, thuwar and private sector representatives

The Forum for Democratic Libya aspires to promote and enhance the democratic culture and system in Libya by spreading the values of diversity, participation, equity and inclusion for all citizens across Libya

Table of Contents

The Political Background.. 3

The Initiative... National Priorities........... Processes of Participation. 7 10 15

The Role of Stakeholders. 17 Acknowledgements............. 18

Who We Are 19

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Copyright 2012 BRD/I Group s.a.l. All rights reserved. The material contained in this document is the sole property of BRD/I Group s.a.l. and has been developed for confidential use by the party to whom it is addressed. This document and the information in it may not be modified, copied, distributed, republished or commercially exploited in any manner without the prior written consent of BRD/I Group s.a.l. As per international standards of intellectual property and combatting plagiarism and BRD/I publishing policies, any use of the content, facts, numbers, arguments, recommendations, graphics, and quotes in this document must be cited and referenced to the original publisher and author in this case 2012 Beyond Reform & Development, part of BRD/I Group s.a.l.

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The Political Background

Libya has a golden opportunity to build a modern nation that combines historical culture and a futuristic progressive future. Libya can become a precedence and example for the Arab World through a democratic transition that protects the rights of citizens. The Constitutional Development Process is a priority issue and that is open for debate during this transition and foundational phase towards a new Libya. The Constitution is the legal foundation that reflects the social contract agreed upon by Libyan citizens. It organizes social relations, political ties, authority and the governance model. The Constitution will ultimately reflect and embody the values that Libyans will agree upon and adhere to, and is the guardian of social cohesion for all segments of Libyans. Political legitimacy of Libyas new government and public institutions will largely be drawn from this social contract that citizens will consensually agree upon. Designing a constitution without the consensus of all citizens and political factions will lead to conflict and decrease of trust between society and state institutions.
The 1951 preamble Constitution included: to the

In the name of God the beneficent, the merciful. We, the representatives of the people of Libya from Cyrenaica, Tripolitania and Fezzan, meeting by the will of God in the cities of Tripoli and Benghazi in a National Constituent Assembly. Having agreed and determined to form a union between us under the Crown of King Mohammad Idris el Senussi, to whom the nation has offered the Crown and who was declared constitutional King of Libya by this the National Constituent Assembly. And having decided and determined to establish a democratic independent sovereign State which will guarantee the national unity, safeguard domestic tranquility, provide the means for common defense, secure the establishment of justice, guarantee the principles of liberty, equality, and fraternity and promote economic and social progress and the general welfare. And trusting in God, Master of the Universe, do hereby prepare and resolve this Constitution for the Kingdom of Libya.

It is significant that Libyans embrace the choice and path of an honest and in-depth dialogue process among all factions and regions around the issues that bring Libyans together or that might potentially divide them. This dialogue should address the values of governance, shape of the democratic system, accountability mechanisms, as well as the relations between citizens and government, and among citizens themselves.
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The Political Background

This path coincides with the need to develop participation mechanisms, dialogue, and negotiation processes that enable positive compromise and agreement to promote a shared sense of responsibility towards Libya. It is this sense that can enhance a shared identity through a democratic and representative dialogue around the constitution. Only through shared values can the new Libyan identity overcome the divisions of sect, regions, tribes, ethnicities and political allegiances. Until a newly elected National Government in June 2012, Libyas political leadership should answer to the following: How will consensus be reached around drafting the Constitution? How can Libyans guarantee the participation of all citizens in the dialogue around the social contract? What is the role of stakeholders, including the National Transitional Council, in achieving social and national cohesion?

Libyans can benefit and learn from the experience that preceded Libyas independence in on December 21st 1951, following the decision of the Security Council which proclaimed Libya an independent state from the Italian colonization.
What characterized the constitutional development at that time was a national dialogue that secured the participation of all social segments and stakeholders in the country.

True Democracy is not the act of voting but the culture of continuous dialogue and interaction among all citizens. The Libyan constitution should represent the will of all citizens and the development of this social contract is the most important milestone in Libyas contemporary history. Amr Ben Halim Founding Member of the Forum for Democratic Libya

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Consensual Drafting of the 1951 Constitution in Libya

Dr. Mohamed Berwin, of Texas A&M University and native of Misrata, described the phases of drafting the 1951 constitution that began with the committee headed by the UN General Assembly representative Adrian Pelt. The consultative committee was comprised of 10 individuals representing different countries in addition to representatives of the three Libyan regions: Tripolitania, Fezzan, and Burqah, as well as a minorities representative. As displayed in the following figure, the committee of 21 representatives was formed to develop the constitution and establish the National Council of 60 members. It is important to mention that the members were selected equally from the three regions irrespective of the demographics o each region. This indicated the willingness of each region to comprise on size as an obstacle to national unity and to secure the participation of all stakeholders. The technical writing of the constitution was the result of 25-month long dialogue and 187 meetings to design a social contract that responded to the aspirations of the Libyan people. The legal development of the constitution was left to the final stage where a committee was formed and meetings with experts took place.

Berwin, M (2006). The Political Forces behind the 1951 Libyan Constitution, Ph.D Dissertation, Texas A&M International University, USA,.

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The Phases of Constitutional Development

After declaring Libyas independence, the National Transitional Council announced in the Constitutional Declaration on August 3rd, 2011, that this government should organize elections for a National Assembly of 200 members in 240 days following the election. The National Assembly should assign a committee within 30 days to develop the constitution in no more than 60 days following its first meeting. The draft constitution will be put up for a referendum within 30 days. The process of developing the Constitution will be influenced by the way that a national dialogue will be managed and coordinated by the Libyans themselves in the next phase. The dialogue will be effective only if it can include all citizens and social factions and enable them to reach a consensus on the social contract that will govern their relations, identify a system of government, and determine social cohesion to lay the foundations for a modern government that reflects the aspirations and priorities of all citizens.

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An Initiative by the Forum for Democratic Libya

The Forum for Democratic Libya, is a group of activists, intellectuals, and youth who came together with the passion and desire to positively influence the governance system in Libya. FDL is a non-for-profit, non-partisan and non-governmental organization that aims at: Building and sustaining a democratic culture and accountable governance system in Libya through equal and free participation of citizens. FDL was founded on the principles of diversity, inclusion, and independence to serve the cause of democratic consolidation by raising awareness at the grassroots level and providing opportunities for dialogue and interface among all Libyans

FDL Initiatives
In preparation of the National Council elections and agreement around a new Constitution, FDL has launched a series of open dialogues across Libya with civil society and political activists, lawyers, experts, NTC members, and women and youth groups. This project enables Libyans to actively participate in creating a dynamic Constitution that can respond to their priorities, fit within their expectations, and ensure fairness among communities through: Raising the awareness of citizens on the importance of informed civic participation in the Constitutional process. Building the capacity of citizens on the process of drafting a new social contract for Libyas peaceful and democratic future and the implications of the constitution on their lives. Facilitating a dialogue around the principles and priority issues that the constitution should include in order to reach a consensus that reflects on Libyas culture and political system.
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FDL Projects
Active Citizenship and Democratic Participation To address the growing need for citizenship education and awareness on the democratic process in Libya, FDL has developed a course entitled Active Citizenship & Democratic Participation. FDL has trained more than 550 citizens from all over Libya. Ruwad Project FDL selected a group of Libyan Pioneers The Ruwad from all over the country and transferred the knowledge and training skills enabling them to conduct workshops and facilitate discussions on Active Citizenship & Democratic Participation in their communities and with hundreds of citizens in Benghazi, Derna, Beyda, and Misrata and soon in Jabal Gharbi and Jabal Nefusa. Federalism and Decentralization: Choosing a system for Libyas Future This initiative aims at presenting the concepts and options for Federalism and Decentralizing using evidence and worldwide research to inform citizens and facilitate a dialogue among policy makers. The project will share the requirements and advantages for each option while documenting and sharing citizen perspectives with decision-makers.

A Series of Dialogues
A series of stakeholder dialogues were launched entitled Libyas New Constitution: Towards an Inclusive and Democratic Social Contract in Tripoli and Benghazi in February and March 2012. The dialogues were attended by over 70 stakeholders, journalists, political activists, civil society representatives, women, youth and experts and build on the feedback of more than 550 participants who took part in workshops on Active Citizenship and Democratic Participation, in Benghazi, Tripoli, Misurata, Beyda and Derna. This initiative is based on the need to strengthen the system and culture in Libya toward enhancing the chances of success for the process of transition from conflict to positive civic participation as per the model below:

Strong

Democratic System
Weak

Developing the Governance System

Active Participation Phase Democratic Culture Development Phase

Strong

Negative Conflict Phase

Weak

Democratic Culture

Doumit, G. (2010). The Paradigm: From Contestation to Participation and From Transition to Consolidation, presented at DGAP, Istanbul.

The Forum for Democratic Libya is an enabler of democratic culture and engaged participation, by providing the tools for citizens to influence and be part of Libyas political processes. FDL Founding Member Amr Ben Halim
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The dialogue sessions following key questions:

addressed

the

What are the national priorities and issues that Libyan citizen expect to be addressed in the constitution and new social contract? How can the largest number of citizens and stakeholders be involved in developing Libyas new social contract? What are steps required prior to drafting the constitution? Which stakeholders and entities should reach out and engage citizens and what is their role in preparing for the drafting of the constitution? Participants discussed these questions in working groups and then presented the results of their debates. The dialogue was facilitated by specialists in the field and assisted by a group of Ruwad that were trained by FDL. The Forum documented these results to be shared with the NTC and the constitutional committee upon formation.

The requirements of a successful process of constitutional development are: 1. The phases and mechanisms of drafting the constitution: influenced by the extent to which citizens and stakeholders can participate and approve the process. 2. The shape of political system and government: this will reflect the extent to which equity, justice, and equality in participation is available for all citizens and their ability of selfprotection. 3. The values and principles upon which the process is built: this will lead to the developing of public opinion and the securing of impressions around the level of representativeness and proximity to culture and political society.
Von Bogdandy, A., Huler, S., Hanschmann, F., & Utz, R., State-Building, Nation-Building, and Constitutional Politics in Post-Conflict situations: Conceptual Clarification and Appraisal of Different Approaches, 2005

The Constitution is the social contract that identifies: Meaning of the state Principles of governance Shape of the new democratic system Rights and means of preserving these rights The relationship between citizens and between citizens and state The social, culture, and developmental issues for Libya 2012 BRD/I Group s.a.l./ FDL 10

National Priorities and Public Issues in the Social Contract

The Revolution of February 17th carried a set of principles, aspirations and goals for the Libyan citizens from all backgrounds and categories. Despite liberating Libya from Qaddafi regime, the revolutions goals will only be achieved via a democratic path process, one which is sure to be long and that faces naturally a lot of challenges. Perhaps the biggest challenge is identifying these principals, aspirations and goals and agreeing upon them since they vary depending on the region, tribe, ethnicity and citizen. The dialogues organized by FDL until now showed many differences between different segments of the Libyan people. It concluded with some priorities and issues that need deep dialogues to reach a consensus:

The Role of Shariah and Islamic Jurisprudence in the Constitution

Libyan society is divided between a minimum of three opinions: Some consider Islamic Shariah as the main and ONLY source of the constitution where all legislations must be driven from the Quran. Some think that Shariah should be the main source and constitution text should not contradict it but at the same time are open for developing constitutional texts that parallels the political reality. Others think that the religion of the state is Islam but the constitution is a legal reference and that Sharia should not determine its contents. Rather it has to be drafted based on the choices of the Libyan society and it will not contradict with Quran since all Libyans, or at least the majority, are Muslims.

No doubt this issue will reflect directly on the political divide most Libyans are having; noting that most of the participants do not realize the reflection level their choices have on their culture, political, social and economic realities. It is worth mentioning that there are many diverse and different interpretations of Islamic jurisprudence even though most Libyans belong to the Maliki Madhab.
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National Priorities and Public Issues in the Social Contract

The Meaning of Freedom and Equality
All participants demand freedom and equality and the words appear as slogans repeated in dialogues but that have different meanings to different citizens. There are those who reduce these concepts to the level of the political participation and are afraid that interpreting those terms for fear of the destabilization of norms and traditions; especially if it reaches the family and equality between men and women. There are those who want these terms to infer meanings that affect all social aspects and seek to affect personal freedoms including freedoms of expression, religion, and assembly. They think it is an opportunity to change some of the cultural traditions and norms including those about the role of women, availability of alcohol, and the market. Others think that these terms/concepts are imported from the West and should not replace Islamic values. They believe that introducing these concepts to society is a danger since there no freedom exists except within the confines of religion and there is no equality except for what Shariah allows.

The phrase Free Libya gets repeated by many participants and some even use it when they want to drive through a red light or throw trash in the street. This points to the need to raise social awareness regarding the responsibilities that go with freedom, sets of responsibilities toward others and society as a whole.

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The Shape of the Political System

Participants repeated the need for the separation of executive, legislative, and judicial powers due to their fear of a monopoly of power and repeating the past experiences of the country. They also stressed the importance of the need to limit the duration of the presidency in the constitution and making it impossible to renew the term in order to facilitate the peaceful exchange of power. Most participants tended to demand a parliamentarian system so the larger power remained in the hands of those whom they elected. Others demand presidential system with direct elections from the people and others prefer semi-presidential system with indirect elections. Some participants expressed their concerns that the election results of The National Assembly elections who will lead the formation of a committee to draft the constitution. At the same time, many citizens do not understand the practicalities of these systems and their respective impact on Libyan society.

The Shape of The Administrative System

The form of the administrative system was the most debated aspect among participants. Opinions were divided between supporters of administrative decentralization and supporters of Federalism. Some demanded decentralization as de-concentration aiming for decentralization of resources and services; equitable and sustainable development is the main motivation behind it. Some are demanded administrative decentralization with the aim of insuring independence for some areas so they might be represented geographically, tribally or ethically. Also their motive is to insure administrative prerogatives for local authorities and equitable development.

Others demand Federalism so some areas might enjoy sovereign systems that allowed for better use of resources especially oil in addition to demanding partial or complete secession.
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The Shape of the Political System

The main challenge in the transitional period remains in developing a system that ensures unity and responds to the different groups desires with equitable development and representation that reflects the cultural and social diversity.

Integrating Minorities
While many participants believe that there are no minorities in Libya since the Libyan and Islamic identities is common to all Libyans, Libyans do admit to the presence of tribal and ethnic minorities, especially with the presence of a small Jewish minority (that has largely immigrated from Libya in the past). On the other side, opinions are divided when discussing the linguistic aspects of the constitution. Some support adopting Arabic as the sole official language while respecting other languages and teaching them in the society, for example, the Amazighi language. Others demand considering Arabic as The official priority language while recognizing and allowing other languages in official places whenever they are used. Other groups think that Arabic and the Amazighi language should be accredited as two official languages in the State of Libya.

The problem of the people of Tawergha, Bani Waleed, pro-Qadhafis, Mashasha and other tribes who supported Qadhafi remains unaddressed. However The Libyan people realize that it will be an obstacle if it is not dealt with, with these people being integrated into society along with the other tribes while achieving Transitional Justice to ensure the rights of those who suffered during the revolution.
What I care about in regards to the governance system is to maintain the Libyan unity, ensures the development of all districts and enhances citizens prosperity at the same time. Political Party Leader from Benghazi If the constitution ignores women, youth, minorities and Qadhafi supporters, then who will participate in building the future of The Libyan State? Female journalist from Derna. 14 2012 BRD/I Group s.a.l./ FDL

The Shape of the Political System

The Role of Women in Society
The role of women rose up in many dialogues regarding the Constitution. It was a point of discussion on which everyone agreed about its importance but were divided over the details.
There are those who aim for equating women with men in all aspects of life including political, social and economic, considering that this does not conflict with Shariah.

Others demand equality between men and women as far as religion allows but not crossing those lines, especially on the issues of inheritance and marriage. There are those who think that a womans role is different from a mans and oppose female enrollment in political life and, occasionally, in the economical one.
The diversity of opinions regarding women and their rights is not purely religiously or socially driven but it is also a reaction from some participants to Qadhafis rule, where women were often used to humiliate men.
The mothers of Abu Saleem prison launched the revolution in February 17th We, Women, raised the revolutionaries, fed them and most lived the pain of losing our kids. Why cant we participate equally with the rest of Libyan citizens? Martyrs mother from Misurata. We want a regime that allows political plurality and ensures representation of all Libyan social segments with accountability mechanisms that prevent monopoly over power as happened in the last 42 years. Female activist from Tripoli 15 2012 BRD/I Group s.a.l./ FDL

The Process of Participation in the Social Contract

Libyans expect to participate in the development of the new social contract and therefore in writing the constitution. If necessary processes/mechanisms to achieve such expectation are not available, the lack of confidence between citizens and political leadership will increase and affect the relationship between citizens and the state. This is a challenge to the political leadership, since Libyans feel they were deprived of this role during Qadhafis time. The Libyan people see participation in writing the constitution as a major right and will not be happy with just voting in the referendum as a participation tool. They came up with participation processes during discussions or from experiences in other countries and that can be used in the current time. These processes are as follows: 1. Choosing monthly topics that represent one of the aspects of the new social contract to be discussed via: Media tools that enable these issues to be tackled by stakeholders, specialists and citizens. Local councils to hold dialogue events and invite all local citizens. Civil society to organize meetings and seminars that all sectors of society can participate in. Universities to organize dialogues and student activities which students and professors will participate in. Proposed organizers would send their suggestions to a coordinating committee made up of independents and intellectuals. The committee would combine those suggestions and write reports that will be handed to the constitution writing committee. 2. Every ministry would organize a series of dialogues specialized in its work, which connects directly, or reflects on the constitution, with specialists and stakeholders in all districts. These suggestions are to be documented and sent to the constitution writing committee.

3. A committee would be formed from intellectuals, experts and independent civic society leaders to organize the advertisement of all regional meetings in all areas in which stakeholders combine any suggestions.
4. Social media could be used to make writing of the constitution an interactive process and launching organized discussions via forums (for example, Libya Wiki-Dustur). These forums allow the constitution to be responsive to youth expectations, their opinions and allows the participation of as many youths as possible.
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Stakeholders and their Role in Developing the Social Contract

It is the responsibility of all governmental and non-governmental stakeholders to mediate the dialogue about the constitution. Libyans are divided about the advantages of the governmental participation especially the transition council and cabinet due to the lack of confidence regarding the neutrality of some of the leadership and their capabilities. Others think that mediating the national dialogue without exerting influence should be one of the main responsibilities of the government during the transitional period and it is the body most capable of doing such a thing. The direction of the constitutional context will be influenced by how the dialogue is mediated: Who will invite the participants? Who will participate and where? What are the stages of building consensus and assuring the political and legal legitimacy?

No doubt the above will be very important to determine the different sides, their roles and coordinating between them to reach the highest possible level of participation. The main sides are: National Transitional Council The Government and Ministries Local Councils Civil Society Media Academic and educational institutions

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Summary and Suggestions for Libyas New Constitution

The process of developing the Constitution will determine the success of the democratic transition and Libyas political and social future. In a few years, Libyans will look back to see lessons learned. They will either be a role model for other countries or they will suffer due to the failings they will face.

This period will be influenced by many conditions especially:

1. 2. Dialogue skills that should be built and engrained among all sectors of society. Proper management of a participatory dialogue path that ensures public, political and legal legitimacy for the constitution. Awareness among political leadership about the importance of dialogue and its capability to mediate conflict and compromise for the sake of consensus rather than having to turn to violent tools. Partnering with all stakeholders, even those who were anti the revolution, for the sake of achieving real national reconciliation.

3.

4.

Dr Muhammed Berween summarized the reasons behind the success of Libyas 1951 constitution by highlighting the following:

Huge effort and continuous dialogues for 770 days, or 25 months. Big compromises from the society and political factions for Libyas unity, independence and sovereignty. Openness and flexibility to accept political ideas and new governance systems without holding to the familiar. Will, determination and political awareness. Knowing what we want and how we want to live in The Future Libya.

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Acknowledgments and Appreciation

The Forum for Democratic Libya extends thanks and gratitude to all those who prepared, organized and participated in the series of dialogues about Libyas New Constitution: Toward a Democratic and Inclusive Social Contract. FDL promises The People of Libya to continue this initiative and to initiate others to establish a democratic system and culture in Libyan society and building consensus about the different, divisive issues to learn from the past and to improve the future.

Special Acknowledgement to
The Forum for Democratic Libya
Amr Ben Halim Dr. Faraj Nejm Dr. Lamya Abu Sedra

Special Thanks to The National Transitional Council, especially those who participated in the dialogues The Libyan Government, especially those who participated in the dialogues The political and military leadership Intellectuals and experts Civic society leaders Journalists and media actors Libyan youths, male and females Citizens of Tripoli, Benghazi, Albyda, Tobrok, Darna, Misrata and everywhere else Ruwad of the Forum for Democratic Libya Representatives of various international organizations Representatives of United Nations Development Program
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Spokespersons during the dialogue

Dr. Meftah Al-Swaisy Hussein Al-mezdawi Ibrahim Qaradah

The Forum Pioneers

Dr. Najla Daghman Libya Idris El Mismary Muhammed Khleef Muhammed El Tarigi Muhammed Al Zaroug Faraj El Hasi

Beyond Reform & Development Report Team

Gilbert Doumit Lara Chaaban Carmen Geha Marwa Abu Dayya Najat Rizk Rania Baroud Hicham Jadaoun Nabil Hassan Amal Hmayed Natalia Menhall

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WHO WE ARE
BRD/I Group is a consulting firm and a social business that serves individuals and organizations through values of creativity, interdependence, impartiality and diversity. We are driven by the commitment towards contributing to more participatory, inclusive and responsive governance systems in the Arab World. We are specialized in policy innovation, public institution reform and capacity development, enabling public institutions, civil society organizations and political groups in the Arab World. We have contributed to the growth and development of myriad organizations, to find policy solutions, design strategies, restructure organizations, scale impact and improve public service.
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Our Involvement in Libya

Our strategy since June 2011 in Libya continues to focus on: Building the Capacity of Local Civil Society. Empowering Public Officials and Offering Policy Advice Developing a Participatory Framework for Libyas New Constitution and Governance System 20

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