How can Libya achieve “Good Governance”
Photo Credit Euractiv
“Good governance is perhaps the single most important factor in eradicating poverty and promoting development” – Kofi Annan
The inauguration of the General National Congress (GNC) in August inspired excitement and raised expectations throughout Libya. However, 12 months later, optimism has given way to discontent, as Libya’s first democratic chamber has struggled to work effectively in its role as the nation’s governor. The house’s losing struggle for good governance, born of inexperience, is exacerbated by poor internal governance mechanisms: the house rules, detailed democratic procedures and enforceable work processes, which good governments require to function smoothly. This responsibility for good governance – which is best definable as the manner in which our parliament is conducting public affairs, and managing the public’s resources – is heightened during a period of transition. The practices of the GNC will set many important precedents, defining the developmental direction and over-arching culture that the future Libyan state and society will develop. Moreover, the GNC’s culture, behaviour, and practices define the relationship between state and society – as long as chaos rules in the GNC, it will inevitably rule in the streets.
Governance Standards & the GNC:
Libya today is reminiscent of the post-colonial societies of the mid-20th century. The nation’s political scene is not geared towards incremental improvements, but rather focused on a monumental national project aimed at providing citizens with all the values, rights and opportunities that they were denied under Qaddafi.
More than half-way into the mandated life of the GNC, it is prudent to break down and analyse the state of the Congress, comparing it to accepted standards to see those positive aspects that can be built upon, and those negative ones which must be fixed.
Governing Culture:
As the GNC is undoubtedly democratic in name and formation, we can adjudge whether its culture and ideology also embody established democratic principles of participation and transparency.
Participation – The question of participation in both the legislative process and the political agenda has been contentious at best, with the exception of ceding to the popular will in allowing an elected constituent assembly.
Legislative process – The lack of channels for civilians to express their popular will to the authorities, and the difficulties CSOs encounter when lobbying – as can be seen in their struggle to get the GNC to adopt the widely distributed and approved manifesto for an inclusive constitutional process – has created a situation which encourages the aggressive and at times violent means people have employed to promote the issues they consider important. This is exemplified by the cases concerning Libya’s war-wounded, and separately, the political isolation law. Both involved aggressive protests that created a climate where GNC members were unable to freely associate, operate, and debate, and eventually became subject to coercive blockades, occupations, and violent acts.
Political agenda – The absence of mechanisms for popular involvement in influencing the GNC’s agenda is compounded by the seeming ignorance of the Presidential Secretariat on the agenda procedure proscribed in the approved section of the house’s rules of procedure. They have instead implemented a seemingly reactionary and random system. This has become problematic to the point where even GNC members are unsure of the agenda for a session, and are unable to place items on the agenda under confidence that they will be bought up in the session. One example of this phenomenon was in the GNC’s 60th session with Congressman Faraj Sassi dismayed questioned why the important proposal by 73 members to the presidency, following all proper procedure, to discuss the urgent constitutional assembly amendments was not even mentioned.
Transparency – Whilst the GNC made a historical, positive, and often under-acknowledged step in regularly broadcasting their sessions, there is still room for improvement in two areas.
Decision making – Whilst there are good examples of the proper debating and voting procedure being followed for many laws, there are occasions, such as the bill defining GNC members’ remuneration, where decisions were made using the Qaddafi-era system of closed doors discussion. It is hard to monitor how often this system has been used, but it is essential that such discussions are bought out into the open. Whilst there are good reasons for holding closed sessions – such as for issues of national security – it is when these means are employed for everyday issues where it becomes an issue of transparency.
Access to sessions – Despite the fact that many sessions are televised, the absence of published minutes and the difficulty for outside parties to gain entry to the House as observers, means that those who wish to exercise oversight find it unnecessarily difficult to do so.
These problems with the GNC’s governing culture are affecting its competency, image, popularity, and legitimacy in the eyes of the Libyan public. This is not a uniquely Libyan problem. Even successful transitional states, like South Africa, have faced comparable difficulties. These were effectively tackled through the introduction of strict, but enforceable systems of ‘best-practice’ based internal rules of procedure. In the Libyan scenario, comprehensive internal rules of procedure have been developed and adopted but remain unenforced.
Governing Practices:
Existing GNC working practices, in terms of professional attitudes and accountability, are at present areas of weakness. The attitude with which parliament approaches its duty of caring for the country’s well-being over personal and political interests as well as the handling of everyday business and its conduct in times of crisis are all currently questionable. Resolving transparency issues in conflicts of interest, ensuring adherence to mutual responsibilities, and applying oversight mechanisms are integral to maximising the effectiveness of the GNC and creating an enduring culture of professionalism.
Factionalism –Libya’s nascent political scene has transformed over the life of the GNC into fractious factionalism, which has hampered the ability of Libya’s governing bodies to work productively. The product of this factionalism could be seen from the beginning with Dr. Magarief’s unilateral assignment of powers to himself which led to widespread disappointment, accusations of “power-grabbing” by the NFA, and clashes with the executive branch over confusion on the assignment of powers. Another hazardous product of this factionalism is the growing rivalry between the GNC’s two largest groups, the Muslim Brotherhood and the NFA, which is now encroaching upon the countries other political institutions.
House decorum – In the absence of enforced Rules of Procedure, rowdy and unproductive sessions are commonplace. Personal insults and off-topic tirades replace constructive debate, especially when controversial issues like the political isolation law were being discussed.
Accountability – Whilst ultimate accountability will come in the form of GNC members’ re-electability, internal accountability for members who do not fulfil their duties or perform poorly is an area in dire need of attention. The GNC’s President and his secretariat seem immune to any recourse when performing poorly, as in the case of the aforementioned agenda issues. This problem extends to GNC members who have capitalised on the lack of enforceable rules for personal interest or political manoeuvring. This issue is further exacerbated when political figures make use of degenerative tactics such as exiting the house before divisive votes that are unlikely to go in their favour, resulting in an inability to make quorum and subsequently an invalid vote. To solve these problems, GNC members must reach an agreement amongst themselves on fair punishments – from fines to removal through votes of no confidence – which are relative to the nature of the offence and number of infringements. This will incentivise members to act with the proper decorum, and condition democratic behaviour through punishing those who repeatedly flout the agreed-upon rules.
Conditioning a newly democratic legislature to best-practice debating procedure, and tempering poor habits are both problems common to transitional countries, especially those encountering democracy after prolonged dictatorship. This is only exacerbated by the trauma and divisions caused by bitter revolutionary conflict. The solutions these states have developed for these problems are usually enshrined within their transitional constitutions. States such as Nepal, Iraq and, most effectively, South Africa, have used the courts to ensure their legislature is working towards national goals and chastise those who deviate. Another common solution is to create a system of divided power encompassing overlapping checks and balances; allowing each section of government to prevent others from becoming destructive to the whole.
Contextualising good governance in the GNC:
The GNC’s relationship with the electorate and their perceived effectiveness are both integral aspects of good governance. This relationship can be examined using three simple yet expansive metrics:
How successful has the GNC been in policy ‘aggregation’ and implementation? – Although aggregation is not easily comparable here without a precedent to work against, the GNC has managed to keep the state functional at a basic level. However, their ability to follow through has often not materialised on key issues. For example, on August 12th 2012 they took a stated policy position condemning the demolition of ancient Sufi shrines by religious extremists but failed to move against subsequent attacks. Moreover, the specially mandated GNC security team formed by President Magarief failed to prevent repeated armed attacks against the legislature. Finally, the time taken by the GNC to pass a budget frustrated many government officials awaiting its approval.
How well does the GNC deal with broad issues that transcend specific policies? – There are two good examples that illuminate the GNC’s governance in this field. First, the GNC was 3 months late to form a government and has failed to meet mandated deadlines on the formation of a constitutional assembly. It is doubtful that the body will be formed before next year. Second, the highly controversial political isolation law was transformed from its initial intentions in-line with public demands, through intense multilateral politicking, into a political weapon causing the GNC to move very slowly on the passage of this law and would have been delayed further still if not for the violent advocacy of the law’s proponents.
Does people’s experience with the government suggest that they care about their welfare and security? – Overall, the popularity of the GNC is trending downwards, as exhibited by the spate of protests over their delays on the formation of the constitutional assembly, the protestors calling for the GNC’s closure on the 26th July 2013 and the increasingly aggressive demonstrations, and violent attacks against the GNC as a whole over controversial issues. The population’s unfavourable impression of the GNC is matched by the difficulty that most CSOs encounter when trying to lobby for changes with the GNC. Libyans in general do not have much contact with the GNC, but the body’s unresponsiveness to peaceful protest and other popular attempts to influence GNC action has lent credence to the belief that the GNC is not concerned with the nation’s welfare or security. Still, it must be noted that GNC members have had an increasing presence in mediation teams, helping to end strikes, diffuse tribal conflicts, and engaging in their local communities in times of crisis. This shows that whilst it may be hard for the Libyan people to influence GNC sessions, GNC members are playing an increasingly direct role in working towards the security and welfare of their constituents in times of trouble.
Policy Recommendations:
The GNC’s governance issues all share a source: inexperience working within a democracy, and the absence of a strong set of guiding procedures. These recommendations, if enshrined in any type of law or mutually agreed rule-set for the house, should help the GNC overcome this obstacle and gain much-needed ground in its battle for good governance:
Draft and implement the principle of “Separation of Power” in a legal document: This is essential to good governance; properly implemented, it prevents any party within a pluralistic system from hoarding power and improves governing practices and the GNC’s working culture. Whilst a more detailed version will be needed for the constitution, a lighter model is currently suitable to provide all of Libya’s governing bodies a clear operational framework with no confusion or conflict over delegation of powers. This model should clearly delineate the roles and responsibilities of:
The GNC as a legislative body
The speaker of the house/Presidency
The Prime Minister and his cabinet as an executive body
A judiciary to impartially preside over the resolution of any disputes
South Sudan’s interim constitution presents a good model for this important step. It provided schedules for allocating governmental powers to different government offices, and resolved disputes through the constitutional court. This clear system of demarcation allows for relations between powers to function normally and encourages cooperation.
Develop detailed, monitored and adjustable timelines for fulfilling the GNC’s main objectives: Steps should be taken to divide large, ambitious goals into smaller, more achievable tasks. This pressures the government to actively monitor issues of national importance and avoid a more reactionary approach to governance. Other transitional states have done this with various levels of success. To emulate the most successful systems, Libya should incorporate:
Clear goals and procedure: It is imperative that our transitional objectives be properly planned have clearly defined goals, and that procedures for reaching these goals be thoroughly analysed and plotted. This ensures that a fair amount of time is allocated to every goal, and facilitates enactment of contingency plans. Clear procedure allows the GNC to incorporate participatory mechanisms and increases transparency, improving its overall governing culture.
An oversight mechanism: A third party adjudicator should monitor breaches of any established timelines, fairly consider mitigating circumstances, and issue judgements to rectify the situation. Typically, this is done by a court, or judicial council, but the same system can apply to an executive council, or any party that has no direct interests in the Legislature. This will help to improve accountability.
Procedure for extensions: Even the most careful plans can meet unexpected obstacles, and other transitional countries have benefited from having contingency plans to deal with such eventualities. A procedure that identifies problems using the oversight mechanism can ensure that the GNC does not repeat its mistakes.
Pass a Rules of Procedure: Much of the GNC’s inefficiency stems from the prevailing culture of long, sensationalist speeches, antagonistic arguments, and agenda manipulation. If given a best-practice procedure to follow, the relatively inexperienced legislature could function more capably. This could be the set of rule already in place or an updated procedure. However, it must ensure the following:
Regulating Speeches/Questions: All GNC members, and some others, have the right to join the debate on any topic under discussion. However, regulations must be established that govern when, for how long, and in what manner members may speak.
Normalising Agenda Protocol: This is a key issue in improving the governing culture of the GNC. Even though agenda procedures are present, the powers of implementation provided to the presidential secretariat must be applied scrupulously. The GNC could also explore assigning responsibility for the agenda to a different party. A successful model employed in Hungary, amongst others, gives this responsibility to a special parliamentary group staffed on the basis of an appointment agreed to by all parties and political entities. This works well as it spreads the responsibility across various factions, and ensures that all interested party have a stake in the agenda process. However, more important than the body is that the procedure for placing an item on the agenda be simple, transparent and respectful of the different circumstances under which they will be requested (e.g. vote or discussion, what degree of urgency). A protocol allowing for citizens to petition the government to place an item on the agenda, as was employed during transition in post-communist Hungary, would promote peaceful public participation, providing an alternative against violent protest.
Drafting and implementing an enforcement mechanism: A mechanism that punishes and possibly even dismisses parliament members is a potentially dangerous tool, and as such it is recommended as a temporary solution to a temporary problem. However, repeated absenteeism, off-topic lengthy speeches, and aggressive behaviour during sessions have become significant obstacles to effective governance. Such behaviour should be handled through a mechanism that can punish offenders. A similar mechanism was applied in post-apartheid South Africa’s transitional constitution to combat absenteeism to good effect. An effective mechanism should be backed by a clear scale of severity of punishment depending on prior warnings and the seriousness of the offence, and decided upon by broad consensus. This mechanism can be enacted in one of two ways:
A special court, or another capable and independent third party, which handles complaints against GNC members, calling them for interpellation and judging whether there is sufficient evidence supporting a complaint to warrant punishment.
A written agreement amongst all political parties and individuals, with an agreed-upon set of offences and punishments, and a procedure for applying them. The Secretariat of the Presidency or another committee of unaffiliated civil servants can provide necessary checks to ensure this power is not abused. This system was also employed in post-communist Hungary to good effect.
This recommendation intends to publicly punish those purposefully abusing their position whilst conditioning others toward a more ordered and productive debate. Reciprocal checks must be included on the final enforcement mechanism to prevent manipulation and to ensure rulings are respected. If the system is not transparently independent and impartial, it will be susceptible to claims of bias and rejected by the politicians it is regulating. A firm deadline should be included to ensure that this mechanism not implemented for longer than necessary, which risks inviting corruption.
Conclusion:
Libya’s political situation is fast developing into one where the negative sides of democracy are overpowering its positives. Political agents are unfettered in pursuing self-interest over bolstering civic competence or striving towards a greater good. The growing realisation that this transitional period will be neither as short nor as smooth as was once believed makes it imperative that firm procedures are enacted that transitional authorities can follow. The necessity of the recommended regulations comes from an accepted and shared recognition by GNC members and average citizens alike that the GNC is attempting to handle far more than its experience allows for. These recommendations, if enacted, will support the GNC’s endeavours and acclimatise Libyan politics to a more constructive mode of governance. The recommendations will channel the fractious and pluralistic nature of Libya’s new political scene into a more productive direction, where political power is gained through competent and productive administration. In turn, GNC members can look forward to earning the popularity, trust, and legitimacy that they need to further their political careers and, more importantly, better Libya as a whole.