Libya: No Free Elections in Current Climate

The United Nations should urge the Tripoli-based Government of National Accord and competing authorities in eastern Libya to create conditions conducive to a free and fair vote before rushing to hold general elections in 2018, Human Rights Watch said today.

For elections to be free and fair, they need to be held in an environment free of coercion, discrimination, or intimidation of voters, candidates, and political parties, Human Rights Watch said. Three key elements should be respected: protection of free speech and assembly; rules that are neither discriminatory nor arbitrary in excluding potential voters or candidates; and the rule of law, accompanied by a functioning judiciary that is able to deal fairly and promptly with disputes concerning the elections. The judiciary should be prepared to fairly resolve disputes around campaigns and elections, such as on registration, candidacies, and results. Election organizers need to ensure that independent monitors have access to polling places.

"Libya today couldn't be further away from respect for the rule of law and human rights, let alone from acceptable conditions for free elections," said Eric Goldstein, deputy Middle East and North Africa director at Human Rights Watch. "The authorities need to be able to guarantee freedom of assembly, association and speech to anyone participating in the elections."

The UN has publicly supported holding elections in 2018. It is essential for UN officials and the Security Council to join forces to press all Libyan parties to ensure that the conditions for a credible nationwide election can be met before organizing one, Human Rights Watch said.

During a meeting brokered by President Emmanuel Macron of France in July 2017 between Prime Minister Fayez Serraj, of the Government of National Accord, and Khalifa Hiftar, commander of the Libyan National Army forces based in eastern Libya, both agreed in principle to hold speedy elections, within the first half of 2018. Currently, there is no comprehensive plan or guarantees, to secure protection for freedom of association and assembly and the rule of law.

Serraj later told the French foreign minister, Jean-Yves Le Drian, during a meeting in Tripoli that his government was "pushing ahead" for 2018 elections. Agila Saleh, head of the Libyan House of Representatives, based in eastern Libya, which supports Hiftar's group, has called for parliamentary and presidential elections "as soon as possible to end disputes over the legitimacy and competition for political positions in Libya."

The UN Security Council and the European Union back the Government of National Accord, which is supported by armed groups and militias in western Libya, but has limited control over territory. The other, rival, Interim Government based in the eastern cities of al-Bayda, Tobruk and Benghazi, is also supported by the Libyan National Army, which controls large swaths of eastern and southern Libya, with the exception of the eastern city of Derna.

Violence following the last Libyan general elections in 2014 led to the collapse of central authority and key institutions, notably law enforcement and the judiciary. The result was two opposing governments competing for legitimacy. Armed groups have, since then, kidnapped, arbitrarily detained, tortured, forcibly disappeared, and killed thousands of people, with impunity. The protracted conflicts have decimated the economy and public services, and internally displaced 165,000 people.

Jeffrey Feltman, under-secretary-general for political affairs, pledged the UN's support for organizing "inclusive" elections in 2018. The special representative to the UN secretary general and head of the UN Support Mission in Libya, Ghassan Salamé, has often publicly expressed his wish for general elections in 2018, while acknowledging the lack of a constitutional framework and suitable conditions in Libya.

In an effort in September to reinvigorate a stalled political process amid violent conflicts, Salamé announced a new Action Plan for Libya. The plan included consensus for limited amendments to the existing Libyan Political Agreement, followed by a national conference, a constitutional referendum, and legislation to provide for parliamentary and presidential elections. The EU, EU member states - including France - and the United States, have all endorsed the Action Plan. No date has been announced for these steps.

Restrictive laws have undermined freedom of speech and association in Libya, and armed groups have intimidated, harassed, threatened, physically attacked, and arbitrarily detained journalists, political activists, and human rights defenders. The penal code stipulates criminal penalties for defamation and for "insulting" public officials and the Libyan nation or flag and imposes the death penalty for "promoting theories or principles" that aim to overthrow the political, social, or economic system.

Laws on peaceful assembly unnecessarily limit citizens' ability to freely express themselves through spontaneous and organized demonstrations and protests, with unduly harsh penalties. Authorities should ensure that any restrictions on public gatherings are strictly necessary for protecting public order.

The criminal justice system has all but collapsed. Civilian and military courts in the east and south remain mostly shut, while elsewhere they operate at reduced capacity. Armed groups have threatened, intimidated, and attacked judges, prosecutors, lawyers, and government officials. Law enforcement and criminal investigation departments around the country are only partially functional, often lacking the ability to execute court-issued summons and arrest warrants. Libya's courts are in no position to resolve election disputes including on registration and results.
Prison authorities, often only nominally under the Ministries of Interior, Defense, and Justice of the two rival governments, hold thousands of detainees in long-term arbitrary detention without charges. Armed groups operate their own informal detention facilities. Under article 44 of the Libyan Political Agreement, the Government of National Accord should ensure that the authority to arrest and detain anyone is strictly limited to statutory law enforcement bodies, in compliance with Libyan and international law.

The High National Elections Commission, responsible for organizing elections, was established in January 2012 by the National Transitional Council. It announced the official start of the election process on December 7, with voter registration. By February 15, more than 2.4 million people had registered, its statistics show. As of March 8, 6,267 Libyans living abroad had registered. The commission extended the deadline several times, most recently until March 31. The International Organization for Migration estimates that at least 141,000 Libyans lived in the diaspora in 2015, although recent figures could be much higher.

Voter registration should be inclusive, accessible, and ensure that the largest number of eligible Libyans inside and outside the country can register, Human Rights Watch said. Provisions should also be made to register people held in long-term arbitrary detention without a criminal conviction since there is no legal basis for disqualifying them. The elections commission should also ensure regular transparent audits of its voter register to rule out any inaccuracies.

The legal framework for holding elections remains opaque. The election commission can only hold elections if the House of Representatives passes an elections law. Libya has only an interim Constitutional Covenant, adopted in 2011. A draft constitution proposed by the Constitution Drafting Assembly in July has yet to be put to a national referendum. The election commission has yet to clarify the legal framework for participation by political parties, and how independent and international monitors can be brought safely to all areas where voting is planned.

As a party to international human rights treaties, Libya is bound by the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples' Rights, which guarantee freedom of speech, expression, and association. Libya is also bound by the 2002 African Union Declaration on the Principles Governing Democratic Elections in Africa, which state that democratic elections must be held under "democratic constitutions and in compliance with supportive legal instruments," and under a "system of separation of powers that ensures in particular, the independence of the judiciary."