Elections in Libya, envisioned by the United Nations-facilitated political dialogue and scheduled to take place on Dec. 24, 2021, failed to materialize.
This was the predictable outcome of a process riddled with built-in self-defeating factors and whose implementation favored legal, constitutional, and political acrobatics. The process was beleaguered by two interrelated issues: differences over the idea of holding a presidential election in the current context, and the resulting failure to reach the required consensus on a framework for elections.
The collapse of this process is likely to trigger political disintegration, including the emergence of rival governments and a credible risk of military escalation. As a result, the widely supported elections that were meant to instill the country with unified, legitimate institutions and rid it of the currently competing assemblies will be relegated to the distant horizon.
The current political process stems from attempts to overcome the 2014 post-electoral crisis that resulted in competing claims for legitimacy by two houses: the newly elected House of Representatives, based in the country’s east, which eventually saw its election annulled by the supreme court, and the previous parliament, the General National Congress in the west, which claimed continued legitimacy.
To overcome this conflict, both houses signed a U.N.-brokered compact known as the Libyan Political Agreement in Morocco in December 2015. The agreement maintained both bodies and made them co-legislators on all laws and constitutional arrangements necessary for the transitional process.
The two houses dramatically failed to reach a consensus, though, and the country continued having two competing governments through 2019. U.N. efforts to move the process forward via a national conference were then frustrated by Gen. Khalifa Haftar’s attempts to settle the conflict militarily through his war on Tripoli. Following his defeat, an international and regional consensus allowed for renewed U.N. efforts to reinvigorate the political process. This was reflected in the Berlin Conference of January 2020.
The conference’s conclusions called for the establishment of a presidency council, the formation of a government, and the resumption of a political process “paving the way to end the transitional period through … parliamentary and presidential elections.”
To operationalize the Berlin conclusions, the U.N. mission created a Libyan Political Dialogue Forum (LPDF) made up of 75 members. This forum met in Tunis, Tunisia, in November 2020 and adopted a road map envisioning a new transitional phase of 18 months, to be led by a newly selected presidency council and a government of national unity, and to culminate in the holding of simultaneous presidential and parliamentary elections on Dec. 24, 2021.
The road map provided that the two houses, the House of Representatives and the High Council of State, must agree on a framework for the elections within 60 days, failing which the LPDF would decide on the matter. However, both the two houses and the LPDF failed to adopt a framework. In both forums, differences centered on the presidential election.
Holding a presidential election has been controversial in Libya since 2011, when longtime dictator Muammar al-Qaddafi was overthrown. It was ruled out by representative bodies in 2012 and in 2013 ahead of national elections scheduled for 2014, and again that year. The rationale, mainly put forward by the revolutionaries, known as the February camp, was that electing a president during the interim period would prejudge the nature of the political system to be established by the permanent constitution. In addition, they were concerned that imposing a strong president on a weak state could pave the way for authoritarian rule.
When the various bodies set out to adopt a framework for the Dec. 24 elections, this issue surfaced again. The terms of the debate revolved around two points: whether the country should have a presidential election at all, and, if so, who gets to run for election.
On the first question, House of Representatives Speaker Aguila Saleh, Haftar, and former Interior Minister Fathi Bashagha each believed they had a high chance of winning the presidential poll and insisted that a presidential election was the only way the country could be effectively governed. Supporters of the former regime also promoted the idea of a presidential election, believing their candidate, the former dictator’s son Saif al-Qaddafi, stood a good chance of winning.
The February camp, on the other hand, generally reiterated its opposition to a presidential election ahead of a permanent constitution, using the same rationale laid out in 2012 and in 2013. They also rejected Haftar’s and Qaddafi’s candidacies, seeing both as convicted criminals and fugitives.
On the second question, with Haftar being an active-duty military officer and a U.S. citizen, his supporters insisted that conditions for eligibility should be adjusted accordingly. Libyan ordinary laws would indeed ban him on both grounds. Likewise, supporters of the former regime insisted that enjoyment of political rights and criminal procedures short of final judicial ruling should not be an eligibility condition.
These disagreements prevented the LPDF from agreeing on a framework for elections. The U.N. mediator also abstained from putting forward any bridging proposals. Yet the international community was desperately trying to achieve what seemed to be its only agenda for Libya: simultaneous presidential and parliamentary elections on Dec. 24.
Exploiting this international despair, on Sept. 8, 2021, Saleh unilaterally issued a “presidential electoral law” without holding a vote in the House. The law amended the agreed-upon electoral sequencing by providing for presidential elections to take place ahead of parliamentary elections, included provisions of a constitutional nature such as presidential powers and terms, and loosened eligibility criteria to allow military personnel and dual-citizenship holders to run for election.
The U.N. Support Mission in Libya and other international actors in Libya supported this supposed law. This was a turning point, as the mission’s mandate is precisely to “further the continued implementation of the” Libyan Political Agreement, which requires a consensus between the two houses on such a law. Expectedly, international support emboldened the speaker, who one month later, and again without any vote, issued a “parliamentary electoral law.”
By supporting laws that violated the Libyan Political Agreement, the international community weakened the standing and authority of the internationally endorsed framework and, consequently, deprived the process of an authoritative source to refer to in case of disputes. This made it easier, in the implementation stage, to disregard any related rules.
During the candidacy process, for instance, it appeared that supporters of the disputed electoral laws intended to abide by them only to the extent that their political rivals would be effectively prevented from running. These included in particular the current prime minister, Abdul Hamid Dbeibah, who had indeed signed a pledge not to run for election, and Qaddafi, who was under arrest warrants from Libyan courts and the International Criminal Court.
Both Dbeibah and Qaddafi submitted their candidacies and were approved by the courts, and they soon emerged as the likely front-runners in a presidential election. Consequently, supporters of a presidential election rejected the relevant courts’ decisions and called on the country’s electoral body to suspend preparation for elections. The latter eventually declared that a force majeure, resulting notably from a political rejection of some candidates, prevented the holding of elections.
However, the elections’ failure was also predictable in light of other self-defeating factors in the very design of the process itself.
First, there is the framework established by the Libyan Political Agreement, which granted the two houses a veto power on elections that would spell their own demise. The LPDF road map did little to address this, which it could have done by using an alternative route offered by the 2015 agreement.
Second, the decision to rush elections was problematic. Lessons learned from comparative experiences, including Iraq, Afghanistan, Angola in 1992, Liberia in 1997, and South Sudan since 2010, show that early elections in post-conflict societies entail risks of conflict resumption. Libya still has three foreign armies and 10 foreign mercenary groups operating on its soil in addition to terrorist groups and countless local militias. Its current prime minister cannot visit large parts of the country, and critical state institutions are yet to be unified. This suggests that a conducive environment for elections does not yet exist.
Third, a number of items that were to help build that conducive environment such as national reconciliation, decentralization, and unification of state institutions were neglected or at best dealt with as secondary technical issues. Merely setting a firm election date was not sufficient to create the necessary environment on its own.
Fourth, the LPDF road map provided for two mutually exclusive dates: Dec. 24, 2021, for elections, and an 18-month preparatory phase that would culminate in elections. The date of Dec. 24 was adopted in an improvised manner and juxtaposed with the already existing 18-month timeline. This confusion was reflected only in the Arabic version of the road map, the one Libyans negotiated and agreed to, while the English version, which the diplomatic community worked from, referred only to Dec. 24—causing misunderstandings between Libyans and their international partners.
Fifth, and finally, precedents established while selecting the executive authority in February 2021 proved to be fatal. It was then allowed for active military personnel, and even sitting judges, to run, in violation of Libyan laws. This diluted the rules on eligibility and deprived the process of strong precedents rooted in Libyan law and practice.
In sum, the rush to hold an election based on a disputed legal framework undermined the standing and authority of the governing framework of the process, including Security Council resolutions. It also set poor precedents for laws being issued by one individual, undermined the credibility of the country’s independent electoral body, and, ultimately, endangered Libya’s fragile peace.
The elections’ failure reflects existential fears among many constituencies and is a reminder that elections in Libya need to contribute to a peaceful process and outcome—rather than being treated as an end goal themselves. They need to be framed in a nonpolarizing manner and unfold in a conducive environment. Timelines are important but need to flow from thorough context-based assessments. They do not make a process by themselves, nor can they be a substitute for credible and accepted mediation.
As Libya continues its downward trajectory with the emergence of rival governments and risks of military escalation, international mediation should focus on keeping the country’s institutions unified and building the environment for an agreed-upon and well-prepared election.
Omar Hammady was a political and constitutional affairs advisor to the United Nations Support Mission in Libya from December 2020 to October 2021. He worked on Libya as coordinator of North Africa programs at the Max Planck Institute for Comparative Public Law and International Law from 2011-2013, and then as country director for Democracy Reporting International from 2014-2016.