Lawyers for Justice in Libya (LFJL) is concerned by Libya’s consolidated constitutional draft (the April 2017 Draft), which restricts human rights including freedom of expression and assembly, and does not guarantee equality due to contradictory provisions. As as result, the April 2017 draft in its current form risks entrenching discrimination towards whole sections of the population residing in Libya. LFJL urges the Constitutional Drafting Assembly (CDA) to amend the April 2017 Draft and work together to ensure that the future constitution provides robust human rights protections for all Libya’s people. The CDA must also set out the next steps in the constitution building process, and hold meaningful public consultations with all stakeholders before finalising its work.
Libya’s constitution building process stalled in April 2016, when divisions and boycotts amongst the CDA’s membership prevented the body from approving a previous draft for consideration by national referendum. The CDA subsequently formed a sub-committee, which included members who had been boycotting the process, to debate controversial issues and to seek to establish consensus. Their efforts resulted in the April 2017 Draft, which will be considered by the CDA during a plenary meeting and vote on 7 May 2017.
LFJL, however, is concerned that the April 2017 Draft fails to provide sufficient guarantees to ensure the protection of human rights in Libya in many aspects and may weaken existing rights commitments. This in turn may entrench unequal treatment and the substandard protections for human rights for generations to come.
LFJL is particularly concerned by the expansive limitations to fundamental freedoms, such as the right to assembly, which are open to abuse. Article 44 guarantees the right to ‘meet, assemble and demonstrate peacefully’, but is limited by the broad permission for the state to use force ‘when necessary’. International law is clear that assemblies may only be restricted, and force used, in very narrow circumstances such as when a protest is violent or unlawful, which article 44 does not make clear. This lack of clarity means that article 44 does not adequately guard against abuses of power that might seek to limit peaceful assembly. At the constitutional level, the aim should be to safeguard the right of people to exercise their right to peaceful assembly, not to enshrine the option to use force.
Freedom of expression, provided for in article 39, is drawn in narrow terms and subject to multiple limitations that have no place in a constitution, such as the prohibition of libel and Takfir (‘declaring others as infidels’). Further, the April 2017 Draft defines Libya as an Islamic Republic governed by Sharia law and sets out aspects of private life such as marriage with reference to Islam, but does not provide guarantees for freedom of thought and belief. This is a departure from the Constitutional Declaration which states that “The State shall guarantee for non Muslims the freedom to practice their religious rituals.” Without clearly protected guarantees to free expression and belief that cannot be limited except in line with international law, there is a risk that all people residing in Libya could find their freedom of expression limited.
Articles 7 and 16 provide general guarantees for equality and non-discrimination, but these are undermined by strict limitations and provisions which counteract these assurances.
For example, religious minorities will be unable to hold any high public office in Libya due to requirements that members of the House of Representatives, Senate and President be Muslim, and in some cases born to Muslim parents. Meanwhile, young people will also be shut out from the presidency and holding office in the Senate, where candidates must be over 40 years old. This provision directly contradicts the earlier statement of equality in article 7, and risks disenfranchising sections of Libyan society from accessing high public office.
Article 185 suspends the processes for acquiring citizenship and nationality for the 10 years after the constitution is enacted, when the processes will then be determined in legislation. This means that those who have not already been able to access nationality or citizenship or whose status is ambiguous, will be unable to settle their status as nationals for at least 10 years. Currently and historically this has impacted Libyan women married to non-Libyan men, who have not been able to pass their nationality to their children, and minorities who have been arbitrarily prevented from becoming naturalised citizens or have had their citizenship revoked. They and their children will continue to have their family life disrupted, and face difficulty accessing basic services including health and education. Article 185 will also impact access to high public office due to requirements that both of a candidate's parents are Libyan, and that the candidate is not married to a foreign person and does not hold a second nationality. This is discriminatory, violates Libya’s international obligations, and does not meet regional and constitutional standards on this issue. It is also a significant step backwards from the CDA’s previous draft, which expressly allowed nationality to pass where a child is born to a Libyan parent of either gender.
LFJL Director Elham Saudi commented, “The purpose of a constitution is to provide a state’s people with protections from the potential abuse and over-reach of state power. In its current form, the April 2017 Draft focuses on enshrining dangerous limitations to rights and freedoms that are open to manipulation.”
“We urge members of the public to call on their CDA representatives, whom they elected in 2014 and who must represent them in the meeting on Sunday, to reject the draft in its current form,” stated Saudi. "The CDA should instead hold an open and accessible dialogue with the public to finalise a draft constitution with clear, enforceable human rights protections guaranteed in the broadest, least restrictive terms, and leave limitations to be decided at the legislative level."