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Same-Day Analysis

Political Isolation Law threatens to decapitate Libyan state

Published: 22 May 2013

Libya's General National Congress (GNC) has voted in favour of Law 13, the Political and Administrative Isolation Law that bars officials with past associations with the former regime of Muammar Ghadaffi from holding public office for 10 years.



IHS Global Insight perspective

 

Significance

The passage of the law under duress from armed fighters is the most significant legal development in Libya's post-conflict environment.

Implications

As it stands the law will bar from public office many of Libya's existing political leadership, congressional members and civil service officials. The law applies from the national to the local level.

Outlook

The law subverts Libya's embryonic democratic process in favour of unaccountable armed groups, which will seek to fill the resulting power vacuum. If successful, all future legislation will be highly vulnerable to external interference.

Risk ratings

Given the passage of the law under duress and the negative implications for the independence of future legislation, IHS Global Insight is downgrading Libya's Legal Risk Rating from 4.00 to 4.25.

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Libya's interim president, Mohamed el-Magariaf, celebrates the second anniversary
of the Libyan revolution in Benghazi, Libya, on 17 February 2013.
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The passage of the Political and Administrative Isolation Law on 5 May is set to change the political landscape of Libya, by removing some of the country's most senior officials at a time when the government is already struggling to rebuild institutions and restore order to the fragile post-conflict state. It is also likely to have a detrimental impact on the efficient running of the civil service, particularly in key sectors such as hydrocarbons, where long-term expertise brought with it an inevitable association with the former regime.

Equally destabilising are the broad isolation criteria that apply to individuals in civil society, which are likely to be heavily abused and used for personal and political score settling. This is likely to lead to an entrenchment of the positions of factions and tribes that are currently in de-facto control of key areas.

Broad scope

Those affected by the law are divided into two categories, both of which span the period between Muammar Ghadaffi coming to power in September 1969 and the end of the civil conflict in October 2011. The first category seeks to isolate every person who held any formal, unofficial or honorary leadership position in any group, institution, company, council or union that interfaced with the Libyan state in the target time period. Alongside political organisations, this includes trades unions, student unions, universities, charitable institutions, the media, private business, and the military. The extremely broad definition goes far beyond the scope of similar isolation laws, such as Tunisia's draft Political Exclusion Law, which bars only individuals who were active participants in government.

The second category applies to behaviour deemed to have led to the "corruption of political, economic and administrative life" in the country. The language used in this category is vague, including such terms as "anyone known for… [the] praise and glorification of Ghadaffi", and anyone taking a "hostile position" towards the revolution through "any kind" of support. Clause 7 of the second category targets anyone involved in any "scientific, artistic, intellectual, religious, cultural or social activity" aimed at "glorifying" the former regime. These criteria could apply to any prominent figure active in Libyan society during Ghadaffi's rule, regardless of their actual political orientation or actions.

The law comes into force on 7 June, when a committee will be convened to determine which figures should be isolated. The composition of the committee, which will replace the existing Commission for Integrity and Patriotism, is yet to be determined. The ideological positions and tribal orientation of its members will be decisive in determining which figures are isolated. Given the subject matter of the law the committee is ruling on, it is likely to have a sizable Islamist presence, as Islamists comprise the largest organised grouping that was excluded from political life under Ghadaffi. The provision in the law for additional branch offices suggests that the committee has considerable scope for expanding its activities nationwide, which is likely to affect local as well as national governance.

Rise and fall

Those affected by the law include many of Libya's current government and congressional leadership, including General National Congress (GNC) president Mohamed el-Magariaf. Despite having founded and led the National Front for the Salvation of Libya, which for over two decades was the most prominent armed opposition group to the Ghadaffi regime, Magariaf's brief position as Libyan ambassador to India in the 1970s ensures his exclusion from public life. Other leading officials likely to be isolated include justice minister Salah Bashir Margani, who worked in the Ghadaffi-era justice department; and foreign affairs minister Mohamed Abdelaziz, a former diplomat to the United Nations. The eligibility of key figures such as Prime Minister Ali Zidan, and oil minister Abdulbari al-Arusi is likely to be determined by the committee.

While the committee will rule on the political survival of several ministers, others are likely to resign before the law comes into effect. Minister of Interior Ashour Suleiman Shuwail, a former police officer, has already resigned, and Abdelaziz and Magariaf are likely to follow. Although the Appeal Court and High Court can overturn the committee's decision, the political and reputational damage incurred in the process is likely to prevent many from appealing.

Also instructive are the figures and groups not currently in office that the law will affect in future elections (in the likely event that it is upheld in the new constitution). Prominent among these is Mahmoud Jibril, former interim prime minister and leader of the moderate National Forces Alliance (NFA). Jibril and the NFA have a great deal of support in the east of Libya, and his future political ambitions had been viewed with mistrust in the west, particularly among the Muslim Brotherhood's Justice and Construction Party (JCP) and Misratah-based groups. His isolation – and the likely isolation of a significant portion of his political allies – risks effectively disenfranchising a swathe of the already restive east. This would encourage increased federalist activism, and raises the likelihood of the declaration of some form of regional autonomy with or without the sanction of the government in Tripoli.

Vulnerable oil

The economically vital oil sector is particularly vulnerable to any loss of senior experienced personnel. That harks back to a long period where decision-making was concentrated on a few key officials and the sector managed through a relatively small cadre of trained Libyans, with direct input from Ghadaffi. Article 4 of the law, which targets "chairpersons and heads of sectors, institutions, organizations, companies or councils affiliated with the Prime Ministry, the Revolution Command Council or what used to be known as the General Peoples' Committee or the General People's Congress", could in a broad form incorporate the state-owned National Oil Corporation (NOC) and its subsidiaries Agoco, Sirte Oil, Zuetina Oil Company as well as other various joint ventures with foreign investors; however, this would depend on the definitions agreed by the new committee. The NOC, for instance, was previously the Energy “Ministry” or a part of the GPC, as well as the regulator and state oil company. It is as yet unclear whether chairing upstream operating committees, as former oil minister Abdul Rahman Ben Yezza, did at Eni, would fit within the remit of "heading" an institution and if so, how far down the management chain the edict would reach.

If followed through in a strict form, the exclusion of senior officials from office could, in the oil sector, potentially remove familiar lobbying routes for foreign companies, a source of policy continuity and familiarity with current agreements. The law may also deprive the new government of access to experience that would be helpful in current efforts to reform the fiscal and regulatory terms for upstream engagement, for example, or in securing new funding sources for the NOC, which is struggling to finance new developments. Some scope for employment of senior individuals as advisers might still remain, with some former senior officials already engaged in this way, although again this will likely depend on interpretation. If changes are seen to be significant and detrimental to the effective running of this critical sector, it may be that an element of ring-fencing is possible in oil (and electricity), beyond that applied in areas such as the armed forces, security services, judiciary and wider political and ideological institutions.

Outlook and implications

The sweepingly vague criteria in the law are a reflection of the partisan political impetus that drove its passage through the GNC, backed by an effective campaign of public misinformation and duress by armed fighters. The departure from government of the moderate figures elected to forward the national interest, and preclusion of replacements with any political or administrative experience, is likely to significantly impede Libya's post-conflict recovery, particularly in the areas of legal reform, constitutional drafting and normalisation of the security environment. It will also bring the Islamist bloc backed by Misratah to prominence – the questionable democratic mandate of which would further hinder efforts to bring Libya's myriad militias and revolutionary brigades under state control. In this scenario, the drafting of the new constitution is likely to be highly susceptible to external interference and vulnerable to duress from armed groups; accordingly IHS Global Insight is downgrading Libya's Legal Risk Rating from 4.00 to 4.25.

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