Presidential election law and withdrawal of confidence in government are trouble triggers in Libya 

On 9 September, Libya’s Tobruk-based parliament passed law Number 1, 2021, for the direct election of president of the country and outlining his duties and responsibilities. The 77 articles law specified conditions for eligibility for the top job and what powers the president will have.

The issue of directly electing the president by popular vote has been a contentious one. A United Nations-sponsored dialogue failed, last ـJuly, in reaching consensus, referring the matter to MPs in Tobruk to tackle the issue.

The new law comes in some kind of vacuum since the country has no Constitution to determine whether the political system in new Libya will be a constitutional republic or a presidential one. This is essential, as it defines the powers of both the prime minister and the president. Many Libyan political actors prefer that powers be given to the prime minister instead of the president, who should be a ceremonial figure with limited executive duties.

The new law does not decide on the issue of the political system, either, since it has no legal or constitutional base to work on—another issue which is still undecided.

Yet, the new law seems to settle the question by granting the would-be president less power than the elected prime minister, in a country that has always been run by a powerful figure—at least, over the last four decades of the late Muammer Gaddafi.

While the law is far from perfect, it might be a good start in a country where all “political institutions have lost legitimacy,” says Zubair Abdelgather, a retired law professor. He believes the new law would pave the way for Libya to “come together and launch a new start,” by giving the people the “power to elect their president”. Mr. Abdelgather thinks that, once Libyans get the chance to vote, “all other issues could be easily settled.”

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His colleague, a constitutional law professor, speaking anonymously, thinks it is a “big mistake” made by a “chaotic parliament” that has been part of the political problem in the country since it was elected in 2014. He says, “How could you decide how to elect a president when you do not have a ‘constitution’?”

As soon as the law was passed, it faced its first hurdle with the Higher Council of State (HCS), a consultative body created by the political deal of 2015 that ended the 2014 war. Khalid Al-Mishri, chairman of the HCS, in a press conference, rejected the law, saying “it is invalid” since his council was not consulted about it. He also said that HCS has produced its own law and has already passed it to the UN mission in the country in charge of mediations.

However, many legal experts believe Mr. Al-Mishri’s interpretation of the 2015 agreement is “inaccurate”, according to Ali Zawi, lawyer and former prosecutor in Tripoli. He says, “HCS has no power to intervene in legislations,” and MPs can ignore any HCS advice about “any legislative” matters, unless they want to.

Whatever role the HCS can play as a consultative body, it still has the power to torpedo the entire political process in the country, at least by stalling it, as the 24 December election date gets closer. HCS has been one of the two poles of power in the country when it was divided after the civil war of 2014—a UN recognized government in Tripoli and another administration in eastern Libya. HCS has backed the government in Tripoli, while the parliament in the east backed Khalifa Haftar’s forces in their attempts to take over Tripoli in 2019. This fact makes HCS an essential part of the political equation in Libya.

Whatever the legal arguments between the parliament and HCS, the presidential law, in itself, is controversial, to say the least. Mr. Zawi believes “it [the law] is hard to defend,” before any constitutional court since Libya is still “without constitution”.

The legal wrangling aside, the law opens the door for people like Khalifa Haftar to run for president. Article 12 of the law says “any citizen, whether military or civilian, is considered resigned” from his public office, if he holds one, three months before election day. Should such a person lose the contest, he can return to his job and claim any financial benefits granted under the law. This means that people like Khalifa Haftar, who harbour big ambitions, can run for elections and, indirectly, retain his military status.  The general, however, has yet to announce if he is running or not—it is a risky gamble.

Gaddafi’s son, Saif Al-Islam, also benefits from the law. Clause seven of article ten says anyone who has not been “convicted in any crime or felony” can run for president. Unlike Mr. Haftar, Gaddafi Junior is set to announce his candidacy as soon as the election commission starts accepting candidates’ files.

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Three different sources, including one source very close to Saif Al-Islam, have confirmed to me that he will run, “unless other hurdles come up,” all three sources said.

However, the entire election process is now on edge after the parliament withdrew its confidence in Abdul Hamid Debibeha’s government, while asking it to continue as caretaker government. A majority of 89 MPS, out of 113 present, supported the motion.

Again, HCS has rejected the vote, accusing the parliament of acting illegally.

Hours after the vote, Dbeibeh appeared among a handful of his supporters in Tripoli’s Martyrs’ Square, rejecting the vote and calling for bigger demonstration on Friday, 24 September. If anything, the vote has made him stronger and more popular; however, it is unclear what he can do. The UN mission in Libya expressed its concern about this development, while emphasizing that Dbeibeh’s government remains the only legitimate authority in Libya.

In a normally functioning state, a vote of no confidence should not impact the planned December polls but, in Libya, nothing is normal and every political manoeuvre has the potential to ignite another episode of violence.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.