The Coalition of Libyan Human Rights Organisations (the Coalition) is deeply concerned by the recent constitutional draft, published by the Constitutional Drafting Assembly (CDA) on 3 February 2016. If adopted in its current form the draft would likely undermine fundamental human rights in Libya for generations to come due to the weak protections afforded to certain vulnerable groups such as women and ethnic, religious and political minorities. The Coalition therefore presents some of its urgent concerns and calls on those responsible to amend the draft in consideration of them.
The February 2016 constitutional draft is the result of the CDA’s efforts to revise and consolidate the recommendations its individual thematic committees produced in December 2014. The draft is currently under discussion by the CDA members, who have only recently had quorum to vote on each article. The CDA is under increasing international and national pressure to finalise its efforts despite the draft’s inadequate human rights protections and the difficulty of holding a referendum freely participated in within the current security environment. In addition, the CDA has a duty to establish an inclusive document which is, approved by over two thirds of representatives of all of Libya’s people, as set out in the Constitutional Declaration. A final draft issued without this necessary approval would likely find its legitimacy severely compromised.
The Coalition is deeply concerned that many provisions in the rights and liberties section of the February 2016 constitutional draft have considerably weakened the protections offered in previous versions. The Coalition and several member states issued recommendations to Libya during its Universal Periodic Review to ensure that the constitution will guarantee human rights in compliance with international standards. These recommendations were accepted by state representatives but have failed to be realised in the February 2016 constitutional draft. Rather than ensuring Libya’s international human rights obligations are guaranteed within the domestic legal framework many provisions provide lesser protections than minimum standards for fundamental rights. This is particularly worrying as the constitution also attempts to establish its contents as having supremacy to Libya’s international legal obligations.
The February 2016 constitutional draft lacks comprehensive protection for equality and non-discrimination. Whilst the February 2016 draft provides general statements of equality in articles 9 and 21, a more elaborative statement is necessary to protect groups at risk of having their fundamental rights and freedoms restricted. There is currently no provision guaranteeing the right to religious freedom or express provisions to protect ethnic, political, cultural and religious minorities or persons with disabilities from discrimination. Such provisions are vital to protect the identities and dignity of all people in Libya.
Further, despite the February 2016 constitutional draft’s recognition that men and women should be treated equally under law, it authorises and enshrines gender discrimination in other provisions. For example, the right of all Libyan parents to confer their nationality to their children is denied to Libyan women with foreign spouses, whose children are explicitly disqualified from being entitled to citizenship and political rights. Libyan men, however, are free to marry foreign nationals without such repercussions.
The process for naturalisation remains arduously lengthy and subject to arbitrary conditions such as “national interest, demographics, and the ease of integration into Libyan society”. In addition, the possible revocation of citizenship for 10 years following its acquisition, creates a 25 year period of uncertainty for those seeking it. Difficulty obtaining citizenship would continue to have severe repercussions for many of minority communities within Libya many of whom have historically been prevented from obtaining citizenship rights and have therefore faced difficulty accessing fundamental human rights such as health care, education and political participation.
In addition, the draft constitution has removed provisions which prevented amnesties from being awarded to those who have committed human rights violations. The prevention of such amnesties is vital to encourage urgently needed accountability in order to prevent and discourage ongoing crimes which are continue to be committed with impunity across Libya. The February 2016 constitutional draft instead risks enshrining this culture of impunity and would therefore deny justice and redress to victims.
Constitution Building and Legal Reform Programme Coordinator for LFJL, Chloe Dennis, commented, “The February 2016 constitutional draft contains numerous troubling provisions that considerably weaken the protections that are necessary for all Libyans to enjoy their fundamental human rights and inherent dignity.” She added “This is especially worrying for groups and individuals who are already at risk of experiencing marginalisation and rights violations in Libya. Without having their views adequately considered and represented during the drafting process, they may now be forced to live in a country whereby the highest source of law enshrines and protects discriminatory treatment against them.”
The Coalition of Libyan Human Rights Organisations therefore urges those responsible for drafting the constitution to resist pressure to adopt a “quick fix” document lacking legitimacy or adequate protections for all residing within Libya. Miss Dennis noted “The eventual constitution should be an aspirational document which provides legal stability in an uncertain environment. It should not be seen as a law which can be adopted now and amended later for the sake of political convenience, as this may risk inadequate protections being enshrined for generations to come.”
The Coalition remains ready to offer its further technical assistance to those responsible for drafting the constitution.
Al Nissa Qadimat Movement (the Women are Coming Movement)
Libyan Association for Tebu Culture
Libyan and My Son is a Stranger
Libyan Center for Freedom of Press
Lawyers for Justice in Libya
Mercy Association for Charitable and Humanitarian Aid (Alrahma)
National Libyan Organisation for the Development of People with Disabilities
Qadat Alafkar (Ideas Driver Organisation)