Nedra Cherif
Even more challenging for the drafters was to delimitate who is to be considered a Libyan. Citizenship remains a highly sensitive topic in Libya in view of its broad political and social implications.
Libya inherited a legacy of complex and constantly changing citizenship rules, combined with often arbitrary administrative implementation shaped by local rivalries and interests, which left thousands of people in legal limbo, including large fringes of Libya’s cultural and linguistic minorities.
In view of this background, in the aftermath of Libya’s 2011 uprising expectations were high that citizenship issues could be solved and more clearly defined in the country’s new constitution. This explains the heated constitutional debates that arose and the difficulties facing the drafters in reaching a consensual formula.
The compromise reached in the final draft was eventually to defer citizenship regulation to legislation (art. 10) – thus moving backwards from the previous draft, which provided a more specific definition of Libyan citizenship and rules for its attribution and removal – while also deciding to freeze citizenship attribution for the next ten years (art. 186).
Both articles could have significant consequences for different groups of actors, explaining their current opposition to the draft.
Women: Despite the CDA’s significant achievements in the field of women’s rights, no agreement could be reached on the right of women to transmit their nationality to their children.
This remains a touchy subject in Libyan public debate 70 and despite the hopes and pressure from women rights organisations to reach an improvement in this regard, the drafters found it more appropriate to defer the issue to the next parliament.
This constituted a move backward from the wording of the April 2016 draft, which stipulated more explicitly that “is Libyan anyone born from a Libyan mother (as regulated by the law)” (art. 12), but the drafters insisted that despite the lighter formulation the intent was still the same.
According to them, any future legislation preventing women from transmitting their citizenship to their children would run against the constitution since article 7 stipulates that “men and women are equal before the law.” 71
This is a clear example of how the drafters, while still convinced of their objective, had to compromise and find a less controversial wording to ensure that the final draft would gather the largest consensus.
Holders of dual citizenship: While the CDA achieved a breakthrough by allowing the possibility for Libyans to acquire a second citizenship without losing that of Libya,72 the prohibition of a person holding dual nationality from occupying several senior positions in the state institutions triggered heated debates between the drafters and continues to raise controversy on the Libyan scene.73
This issue remains sensitive as it directly relates to the ongoing political dynamics in Libya, and in particular to the declared presidential or government ambitions of a number of prominent bi-national figures, including Khalifa Haftar.
The staunchest opposition during the constitutional debates therefore mainly came from Haftar’s supporters and eastern federalists, who believed that the provision intentionally aimed to exclude specific personalities from the presidency and asked for its removal.
Other CDA members remained uncompromising on this point, deeming it unacceptable that elected representatives, and in particular the president of the republic, could have dual loyalties.74
The only concession made to rally the easterners was to reduce the period for presidential candidates to renounce their second nationality from five years to one. However, they persisted in their demand to have this provision removed, thus preventing any further agreement from being reached.
Cultural minorities: Libya’s cultural minorities are probably those who suffered the most from Qadhafi’s inconsistent nationality regulations, particularly his policy of forced Arabisation, which resulted in non-Arab minorities often being discriminated against and even those living in the border regions being pushed to move to neighbouring countries.75
During the 2011 uprising, the collapsing Qadhafi regime attempted to reverse these policies in order to regain support among the cultural communities, but it is alleged that Libyan citizenship was also granted to foreign mercenaries backing the regime forces during this period.76
This explains the later efforts by the transition authorities to revise what they regarded as fraudulent citizenship attributions, but which in turn negatively impacted large fringes of the cultural communities, leaving some of them in a situation worse than before.
The constitutional debates therefore took place against this complex background and were shaped by the tension between the cultural minorities’ demand to redress this historical injustice and unflinching determination to be recognised as part of the Libyan nation, and the drafters’ concern that liberalising the rules governing citizenship could weaken the Libyan social fabric.
The eventual way out for the drafters was to transfer the responsibility to settle such a sensitive issue to the next legislature, and also to the judiciary.
Indeed, in addition to freezing citizenship attribution and leaving the decision on citizenship regulation to the next parliament, the drafters also included a transitional provision requiring the creation of a judiciary committee established by the High Judicial Council tasked with reviewing the cases of citizenship attribution since 15 February 2011 (art. 186, para. 4).
These provisions, and in particular the last one, which seemingly aimed to address the issue of naturalisation of foreign fighters, however, failed to be accepted by the cultural components as temporary alternatives until a long-lasting political solution could be found.
The Tebus in particular, as the largest group that had benefited from regularisation since 2011, felt directly targeted by the revision measure, and considered the drafters’ decision to be a mere continuation of the Arab majority’s discriminatory policies against their community.
Although the wording was softened in the final draft in order to appease their concerns – an earlier version of the article stated that “all post-2011 naturalisations contrary to the [2010] citizenship law shall be repealed” – it was still deemed unacceptable by the Tebus, who consider the citizenship issue non-negotiable, and was one of the main causes of their boycott and of their current opposition to the final draft.
On their side, the Tuaregs, another group that has been affected by nationality issues, are more divided.
While some consider that some positive progress has been made in the constitution draft, which has been endorsed by one of the two Tuareg CDA members, Tuareg constituencies are somewhat mistrustful that these provisions would give an incentive to the state authorities to move actively in settling citizenship issues.
Notes
70 According to existing legislation (Law No. 24 of 2010 on Libyan Nationality), Libyan women can theoretically transfer their nationality to their children even if married to a non-Libyan. In practice, however, the implementing regulations include complex procedures and restrictions that render the legal provision ineffective and perpetuate a discriminatory approach to women. For further details on this issue, see “Libyan Women Married to Foreign Nationals: Oppression and Stateless Children,” Euro-Mediterranean Human Rights Monitor Report, January 2019
https://euromedmonitor.org/ uploads/reports/libyanwomanENG.pdf
71 See Altubuly, A., “Miswadat al-dostor al-’akhira wa tasa‘ulat al-shabab wa al-shabat” [The last constitution draft and young men and women’s questions], Together We Built It Organisation, 17 May 2017: https://togetherwebuildit.org/ar/ /
72 This possibility was tightly restricted under previous legislation and forbidden under the 1951 constitution.
73 The restriction included in the CDA’s final draft applies to members of both parliamentary chambers (art. 69; art. 76), government members (art. 113), members of the constitutional court (art. 138) and above all presidential candidates.
The latter shall “not have previously acquired any other nationality, unless they legally relinquished it a year before the date of opening candidatures” (art. 99).
74 CDA member H. Abu Hamra on the TV programme “Liqa’ khas” [Special encounter], Part 2, op. cit. As Abu Hamra noted, this restriction had also been “a recurrent demand of the people” during the encounters of the CDA members with Libyan citizens.
75 Van Waas, L., “The Stateless Tebu of Libya?,” Tilburg Law School Legal Studies, Research Paper Series No. 010/2013, p. 5.
76 Stocker, V., “Citizenship on hold: Undermined legal status and implications for Libya’s peace process,” European Institute of Peace, Policy Paper, July 2019, p. 9-10.
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Source: Libya’s constitution: between conflict and compromise
