Dr. Abeir Imneina
Professor of Political Science at the Faculty of Economics, University of Benghazi, former chair of the Board of Directors of the Civil Society Commission, and currently director of the Washm Center for Women’s Studies in Libya.
Reading of the Draft Constitution
Local administration in Libya has long endured the effects of the centralized governance system of the former regime, primarily between 1969 and 2011. Centralization was a major reason for the increased resentment against the Gaddafi regime and led to the downfall of his regime in February 2011. For a long time, the central authority monopolized the decision-making process, leading to a poor distribution of services and a significant deepening of disparity among cities and regions in Libya.
The political shift in February 2011 further increased the demands for the implementation of decentralization and the redistribution of power and resources among the various levels of governance. Such demands came as a response to the feeling of injustice emerging from the unfair distribution of resources and political values over the past decades. Law No. 59 of 2012 was enacted for the local administration system to lighten the centralized system in Libya but was unable to regulate the relationship between the central authority and local authorities, especially after suspending work in the governorates in accordance with Amendment No. 9 of 2012. The Constituent Assembly or Constitution Drafting Assembly was elected in accordance with Law No. 17 of 2013, in an attempt to remedy this shortcoming in its draft. Numerous attempts to draft the chapter on “Local Governance,” initially titled “Outputs of Specific Committees,” in December 2015, reflected the confusion of the Local Governance Committee, and lack of agreement on a single system to establish a local authority with clear structure and competencies. Subsequently, the local governance chapter organized a more coherent draft than the preceding one. The third attempt known as the “Consensus Committee” draft, was subjected to some changes before the Assembly finally approved itin July 2017.
Conditions for the Independence of Local Governance in the Draft Constitution
The United Nations Development Program defines local governance as “comprising the mechanisms, processes and institutions, through which citizens and groups articulate interests, exercise legal rights, uphold obligations and mediate differences.” Governance is the sum of the many ways individuals and institutions, public and private, manage their common affairs, to achieve local development and deliver services in a participatory, transparent, accountable, and equitable manner. This requires enabling local governments to deal with power and resources and build their capacities to act as responsive and participatory institutions responsible for the concerns and needs of all citizens. Local governments were concerned with popular democracy and enabled citizens, communities, and their organizations, such as community-based organizations and non-governmental organizations, to participate in local governance and the local development process as equal partners. Local governance is based on a constitutional basis, with relation to governance and the distribution of competencies between the central authority and the rest of the administrative levels, and it requires a number of conditions including:
- The need for local governance units to enjoy independence, enabling them to exercise their powers, develop policies, and take decisions regarding local affairs, and implement them without direct interference from higher authorities.
- The availability of sufficient financial and human resources to enable the local governance unit to carry out its tasks without relying on others.
- Election of a local authority that represents the citizens of the local community, works to manage local affairs, and fulfills the needs and aspirations of citizens in providing necessary services and achieving local development.
The need to meet the above-mentioned conditions prompts us to wonder about the effectiveness of the 2017 draft constitution in terms of articles promoting decentralization to be a viable model for achieving local governance in Libya.
The effectiveness of the local governance model can be monitored through the following:
- First: Recognition of legal personality, financial, and administrative independence
- Second: Elections and strengthening participatory democracy in the decision-making process
First: Recognition of legal personality and financial and administrative independence
Article 156 of the draft constitution indicated that local governance units enjoy legal personality and administrative and financial independence, making these units a legal entity independent of the State at all administrative, legal, and financial levels. The article affirms the independence of local units by managing their affairs in accordance with the principle of “free management,” indicating that local units assume their affairs freely within the framework of the unity of the State and the freedom to dispose of resources. Local units have the freedom to exercise their powers within the current situation, while maintaining the control of the judiciary monitoring these actions. The concept of free management carries the same connotation as the concept of “the autonomy of local units,” which may confuse the interpreters of the constitution, when enacting laws and establishing organizing regulations, and further deciding on disputes that may arise between local units later.
The adoption of the “independent legal personality” principle aims to enable local units to manage their local affairs independently and to dispose of their own budget separately from the State’s general budget. This is difficult to achieve with the primary dependence of local units on central resources as a source of funding, as stated in Article 159.
1.1 Administrative independence
Article 155 of the draft constitution organized the State into governorates, municipalities, and other non-specific administrative levels. Rather, the legislator is left to specify these levels according to criteria of the requirements of national security, population and geography, and economic and historical factors. The specification of other administrative levels is not mentioned in the draft and will be defined by future authorities, which will create a lot of confusion regarding the distribution of competencies. Article 158 of the draft related to defining the competencies of local governance units states that there are three types of powers: (1) autonomous power, (2) powers transferred from the central authority, and (3) powers shared with central authority; and this cannot be decided by the law because it is related to the distribution of powers according to the principle of subsidiarity.
The competency to establish other additional units was left to future authorities, and the failure to specify the type of powers that the units of local administration exercise, through various administrative levels, whether exercised by themselves, or shared with the central authority, or transferred to it, raises many questions. How to guarantee the application of the principle of subsidiarity to enhance the true significance of the concept of administrative and financial autonomy, with the constitutional text failing to specify the final number of administrative levels for local administration units, and the subdivision of competencies among them.
This negligence allows the next authority to limit the work of transferred or autonomous authorities with the presumption of the weakness of financial resources of these units, and that the central authority lacks an abundance of resources to finance these units in the required manner. So, the situation remains stagnant, and decentralization is not achieved, thus narrowing the scope for free management.
1.2 Financial autonomy of local governance units
The implementation of local governance requires the elected local bodies to be provided with some expenditure responsibilities, and power to mobilize local revenue to finance the activities to be carried out, to enable these local bodies to achieve independence of their financial decisions. To finance expenditures requires a process of providing financial resources to provide services and respond to the needs of the population, while playing a key role in achieving local development and fiscal decentralization, including both revenue and spending authorities. Revenue authority refers to the share of taxes that local levels receive either from local voters or the central government, while the spending authority refers to the funds that are spent at the local level on public projects and services from local budgets.
The local units’ degree of financial independence affects their freedom to work, and the extent to which they can initiate planning for local development projects, increase the volume of investment, and thus provide more job opportunities for young people who are willing and able to work in local communities, and thus raise the standard of living of local citizens.
The draft constitution indicated in Article 159 that governorates and municipalities have central resources consistent with the amount necessary to carry out their specializations and self-resources such as fees, penalties, and local taxes and the returns of their investments, gifts, and bequests, and loans and any other returns they determine, according to the law. The State guarantees the financial balance between local governance units to ensure solidarity between them. Every competence transferred to local governance units from the central authority is associated with appropriate financial resources. Local governance units have the freedom to dispose of their resources within the framework of the approved budget, according to the principles of good governance.
If local governance or administrative units at the local level have the legal power to levy taxes, the tax base remains very weak, and then the central government’s transfers will be heavily relied upon. The shift toward financial decentralization requires a central state capable of managing macroeconomic policies, the availability of technical and administrative capabilities and skills for local levels, and the development of clear and direct regulations to determine the responsibilities of expenditure and the allocation of revenue and transfers from the central government to the various sub-national levels with full transparency and clarity. These requirements are not available at the present time, which will later affect the timeframe required to shift toward financial decentralization as a condition of local governance.
Furthermore, failure to define the terms of reference and leaving them to the law raises concerns regarding the associated assessment of the central authority for the resources transferred according to the terms of reference to the local units. The State’s financial system impedes direct collection of localities and requires the transfer of revenues collected from local governance bodies to the Public Treasury, as stated in Article 176. This requires a review of the financial system and its regulating law.
Second: Elections and strengthening participatory democracy in the decision-making process
Elections are a crucial pillar in strengthening local governance and are related to the democratic and participatory process in utilizing the role of citizens in determining members of the local authority, and further engaging in the decision-making process to establishing development policies.
In Article 157, the legislator mentioned that the selection of provincial councils and municipalities is conducted through general, free, direct, and anonymous election, and that the formation of the provincial council should consider the representation of the municipalities within its scope, in accordance with regulations of the law. The draft constitution included, through Article 205, a special quota for women to represent 25 percent in municipal councils for a period of two elections only, to guarantee greater opportunities for women to participate in local bodies.
The legislator refrained from specifying the mechanism for selecting the president of the provincial council and the municipal council, and refrained from determining whether the process is run through a direct anonymous ballot among the elected members, or an automatic designation as governor or mayor of the municipality for the one with the most votes. This reluctance to define the selection mechanism of the president of the governorate and the municipal council, increases the polarization within the municipal councils, since elections are no longer subject to the will of the voters, but to a consensus based on fragile balances and ideological tensions, emerging immediately after the announcement of the final results of the municipal elections, and causing tension and instability between council members. This is the case of the elected municipal council in Benghazi 2014-2015. Numerous opinions suggest that the aforementioned details should be included in the regulating law, and only requires amending the legal text to meet this standard. Others suggest that there is no objection to referring to these details within the articles of the constitution as a foundation for the desired democratic basis.
The draft constitution failed to address the possibility of having two levels of administration for the governorate, the first is the head of the provincial council, and the second is the position of Governor, and whether the latter was appointed to represent the executive authority, or the sufficiency with the Head of the Provincial Council only. A question arises about the nature of the relation and the coordination mechanism between the executive and local authorities, if any. The popularly elected Head of the Provincial Council is unable to express the directives of the central authority and supervise its implementation under the popular will. The legislator left these decisions to the upcoming law and the next authority, when it was possible to decide the topic of local governance, and not leave it to the whims of the legislative authority later, since it affects the foundations of local governance.
2.2 Strengthening the mechanisms of participatory democracy adopted at the local level
Participatory democracy is a form of joint management of public affairs, involving the residents of the local unit in political decision-making by inviting them to consult with local bodies about public projects or decisions. This is done through open public debate to unify visions and perceptions between the local authority and the residents. The availability of sufficient information among participating citizens is crucial for contributing to the discussion about the nature of the programs offered, and this falls within the standard of transparency that requires the availability of accurate data in a timely manner, to support decision-making and expand the scope of participation, oversight and accountability.
Article 163 of the draft constitution discusses local governance units’ adoption of the necessary measures to guarantee the participation of citizens and civil society organizations in preparing local development programs and following up on their implementation in accordance with the regulations of the law. However, the article is general and nonspecific, and lacks emphasis on some participation mechanisms overlooked by the laws, such as participation in setting budgets, and the obligations entrusted to local units to facilitate the involvement of citizens, civil society, and the private sector, which the draft constitution neglected.
Although Article 54 (discusses obligating the State to set measures of transparency, the right to exchange and access information, and multiply its sources without affecting military and public security confidentiality, the requirements for the administration of justice, the sanctity of private life necessary for transparency, and confidentiality of agreements with another country and the confidentiality of the source), it was better to address this within the context of obligating local units to provide the necessary information for the exercise of participatory democracy by the residents of the local unit in accordance with the requirements of governance, and further specifying the mechanisms used such as petitions, demands, dialogue, and consultation to guarantee the participation rights of the local population.
The extent to which the draft constitution reinforces the principles of local government requires determining the nature of the administrative powers enjoyed by decision-makers at the local and national levels, and how officials of the higher levels of the local authority are selected in terms of appointment and election, and finally the nature of expenditure powers for the central government and local government. Despite referencing important principles of local governance represented in free management, expanded centralization, and subsidiarity, the constituent body failed to reach a final consensus on many aspects related to the authorities of local governance. Therefore, the Constituent Assembly decided to leave the decision to the next elected bodies, which leads to the continuity of the same concerns regarding the sustainability of the status quo.
The experiences of other countries indicate that the exclusion of the decentralized system of Government with its important details from the constitution will often pose an obstacle in the foundation of effective decentralization, as it will depend on political balances and their position on local governance and the promotion of decentralization. These concerns increased due to the absence of detailed transitional provisions clarifying when the main legislation implement local governance into reality and when will it be enacted, and the absence of a provision to impose penalties on the next council if the dates included in the constitution are not respected. The negligence of addressing these concerns indicates that it will take a long time before the implementation of the new decentralization system, further delaying the reformation of local authorities to prepare for the requirements of expanded decentralization and free management.
- The draft constitution, link.
- Amnina, Abeer, “Local Administration and the Challenges of Participation: A Case Study of the Reality of Political Participation in Local Administration Units in Benghazi, 2011-2019.” Benghazi Scientific Journal. Issue 1. Volume 33. 2020. pp. (87-95).
- Amnina, Abeer, “Decentralization in Libya and Requirements for Reform: The Draft Constitution as a Model.” Economic Research Journal 2020. Volume 26. pp. (206-239).
- Ali, Shukry Ahmed, “Financial decentralization during the transitional period to the post-political agreement in the Yemeni Republic.” September 2019.
- Ali, EIssa, “The Transition toward Financial Decentralization in Libya. Decentralization in Libya: A Multidisciplinary Approach.” Center for Law and Society Studies. PT. pp. (119-141).
- Almansoub, Tarik, “From Local Authority to Local Governance: Challenges and Stakes in the Unity State.” May 2008. Link.
- International Institute for Democracy and Electoral Assistance, “Libya’s final draft constitution: A contextual analysis.” Revised Edition. December 2020. p. 14. Link.
- Community Portal, “Principle of Free Management.” Link.