By Ronald Bruce St. John
Two years after the formal liberation of Libya on Oct. 23, 2011, a countryvery different from that envisioned in the Draft Constitutional Charter – a document that declared all Libyans to be equal before the law to enjoy equal civil and political rights – is emerging. Early National Transitional Council decisions proved a harbinger of things to come. Despite women playing an active role in the revolution, women's rights advocates were dismayed when the rebels appointed only one woman, Salwa Fawzi al-Deghali, to the NTC when it was formed in March 2011. She was joined in May by Hania al-Gumati; however, these two women remained the only females on the 40-person NTC until the revolution ended. Mustafa Abdel-Jalil, the NTC chairman, raised fresh concerns about the rights and roles of women in post-Gadhafi Libya when he suggested in October 2011 that a Gadhafi-era law restricting polygamy was contrary to Shariah law and should be abolished.
As the July 2012 General National Congress election approached, the NTC took several controversial decisions, primarily to assuage the concerns of federalists advocating autonomy for northeastern Libya as well as those of a variety of Islamist groups including the Muslim Brotherhood and a fragmented ensemble of Salafist groups. When a January 2012 draft of the election law proposed a 10 percent quota for women, it was dropped in the face of Islamist opposition in favor of a requirement that party lists alternate male and female candidates.
After federalists in early March 2012 revealed plans for an autonomous federal province in Cyrenaica, the NTC announced that the constitutional committee would consist of 20 members each from Cyrenaica, Fezzan and Tripolitania, instead of being based on the population in those three regions.
In late April, the NTC also dropped the election law's ban on ethnic, tribal and religious parties, again due to complaints from Islamist groups. Finally, in the face of ongoing federalist pressure, the NTC amended the Draft Constitutional Charter to require the 60-member committee that would draft the new constitution, known as the “60-Committee,” to be directly elected as opposed to being appointed by the GNC. This last decision was taken only two days before the GNC election, leaving no time for public discussion or debate, and it further extended the political process leading to nationwide parliamentary and presidential elections by several months.
Where the Draft Constitutional Charter called for national elections in late 2013, they cannot now be held before the end of 2014, giving interest groups, particularly the federalists and Islamists, additional time to pursue their own agendas.
In the run-up to the GNC election, a host of NGOs were formed to advocate for women's rights, and their efforts contributed to a dramatic increase in female political participation with 600 women registered as candidates. In the end, 33 women were elected to the 200-member GNC; however, only two were named to the 33-member Cabinet of the interim government that followed.
The election results suggested some progress was being made in the area of women's rights, but they hardly suggested a seismic shift in attitudes toward the role of women in public life. Moreover, during the August 2012 handover of political power from the NTC to the GNC, NTC chairman Abdel-Jalil again incensed women's rights advocates when he humiliated Sarah Elmesellati, a young woman hosting the event, asking her to leave the congress hall after a prominent Islamist walked out because she was not wearing a headscarf.
Over the following year, Islamist groups in particular found common ground in supporting steps aimed at thwarting the efforts of Libyan women to play a more active role in society. In February 2013, the Supreme Court overturned Law 10, the Gadhafi-era marriage act that required a husband to secure the approval of his first wife before he took a second. The Supreme Court decision was denounced by some advocates of women's rights, but other Libyan women accepted it because the ruling was consistent with Shariah. Many advocates for women's rights accept that the new constitution will be based on Shariah and see – or at least pretend to see – little contradiction between having Shariah as the principal source of legislation and their demands for gender equality. Their expressed concern is how Shariah will be interpreted and applied.
In March 2013, Grand Mufti Sheikh Sadeq al-Ghariani, Libya's supreme religious leader, added to the concerns of women's rights advocates when he issued a fatwa against a United Nations document on the Status of Women, contending it was contrary to Islamic law. His criticism centered on the document's equating of men and women, its treatment of inheritance, its wording on sexual freedoms, and its discussion of the rights of children born out of wedlock.
Later in March, Ghariani called on the government to ban Libyan women from marrying foreigners, and in April, he called on the government to put an end to mixed-gender education and employment on the grounds it encouraged immoral behavior.
In May 2013, the GNC, under pressure from heavily armed groups, passed the Political Isolation Law, banning Libyans who worked for the Gadhafi regime from holding public positions for 10 years.
The number of people affected by the law has proved difficult to quantify. However, former Prime Minister Mahmoud Jibril has estimated that it could exclude as many as 500,000 people from state jobs and public life.
Passage of the law was seen as a major victory for the Muslim Brotherhood's Justice and Construction Party and smaller Islamist parties because the law could potentially give them a wider parliamentary majority in future elections. The Iraqi experience, where a U.S.-backed program of de-Baathification stripped tens of thousands of Saddam Hussein loyalists of their jobs and contributed to years of insurgency, suggests the isolation law is a poorly thought out law that strikes at the heart of democratic rights and freedoms.
The composition of the 60-Committee is another example of the current trend toward disenfranchisement, as it is neither inclusive nor representative. Extrapolating from the geographical breakdown of the most recent census (2006) and a current population of approximately 6 million people, Tripolitania has been allocated one committee representative for every 190,900 inhabitants, Cyrenaica one for every 85,500, and Fezzan one for every 23,431.
Women constitute around half the population of Libya and demanded a minimum of 15 committee seats, but they were allocated only six. Ethnic minorities such as the Amazigh (Berber), Tubu and Tuareg are also underrepresented on the committee and have withdrawn from the constitutional process in protest.
Given the opaque procedure used to arrive at a 60-Committee that under-represents large swaths of the population, an inclusive, transparent and orderly constitutional drafting process appears highly improbable. The recent decision to headquarter the 60-Committee in the old parliament building in Beida, a location distant from the majority of Libyans but in the heart of eastern federalist sentiment and in a region where the Muslim Brotherhood enjoys strong support, adds to concerns about transparency, inclusiveness and legitimacy.
The decision to under-represent over half the Libyan population on the 60-Committee, notably women, is only the most recent example of the attitudes and actions of Islamist groups and their allies who have become increasingly bold in their intimidation of women, threatening to return them to the margins of society. Leaflets preaching the importance of women wearing the hijab have appeared throughout Libya, and female judges and lawyers are being subjected to a not-so-subtle campaign to limit their practice to family law, if not to drive them out of the profession altogether.
Already forced to train in secret due to earlier threats from Islamists, members of the women's national football team were prevented from participating in a July 2013 tournament in Germany, officially because it was Ramadan but also because Islamists disapproved.
With much of the world understandably focused on security issues and the related interruptions in oil and gas production in Libya, little attention is being played to a series of events that have steadily chipped away at a political process that two years ago appeared to have the potential to become a model for democratic governance in the region.
Clearly, the restoration of security and a restart of the economy are critical issues in the short term; however, in the long run, the resolution of larger questions involving legitimacy, transparency, inclusiveness, equality and consensus will be of far greater importance to Libyans and the outside world.
The promise of the Draft Constitutional Charter lay in its commitment to democracy, popular sovereignty and the protection of human rights, a promise that can only be realized in a permanent constitution that declares all Libyans, including women, equal before the law and guaranteed full civil, economic and political rights.
Ronald Bruce St. John has published 21 books and monographs, including eight on Libya. He served on the Atlantic Council Working Group on Libya and the International Advisory Board of the Journal of Libyan Studies. This commentary first appeared at Sada, an online journal published by the Carnegie Endowment for International Peace (www.carnegieendowment.org/sada).