Provisions for Exclusion Too Vague, Sweeping
May 4, 2013
Libyans have a right to expect that officials who abused their positions under Gaddafi to commit crimes or violate human rights will be removed and never again allowed to hold public office.
Sarah Leah Whitson, Middle East and North Africa director

(Beirut) – Libya’s General National Congress (GNC) should vote down the latest draft of a new law to bar Gaddafi-era officials from holding public office. The proposed law’s provisions and procedures for exclusion are too sweeping and vague, Human Rights Watch said. Further, a recent amendment to the provisional constitution would prohibit judicial review of the law. A vote is expected in congress on May 5, 2013.

Congress has deliberated over the bill for months amid rising tension and controversy. On April 28, members of armed militias laid siege to the Foreign Affairs Ministry in Tripoli, and two days later the Justice Ministry, to demand the removal of officials who previously held office under Muammar Gaddafi before he was ousted in 2011. Ministries of Interior, Finance, and Electricity were also blockaded by armed militias that week.

“Libyans have a right to expect that officials who abused their positions under Gaddafi to commit crimes or violate human rights will be removed and never again allowed to hold public office,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “But this law is far too vague – potentially barring anyone who ever worked for the authorities during the four decades of Gaddafi’s rule.”

The latest version of the draft law published on the congressional website indicates that it would cover anyone who held an official position from September 9, 1969, Gaddafi’s first day in power, until the declared end of the armed conflict that brought his downfall and death, October 23, 2011. The law would be valid for five years, while previous versions said the law would be valid for 10 years.

Article 1 of the draft law lists 23 categories of public positions as well as acts committed under the Gaddafi government – such as showing a “hostile attitude toward the February 17 revolution” – that would receive scrutiny. Under article 2, anyone who held any of the positions listed under the first article or is judged to have failed its other criteria would be barred from 20 categories of official public positions, including ambassadorships and other foreign service jobs, all the educational institutions, members of unions and people assigned by the GNC, and the interim government.

The draft law provides for the creation of a commission to carry out its provisions and weed out Gaddafi-era officials, making it a criminal offense punishable by up to one year in prison to “decline, default, neglect, or give incorrect information” to the questionnaire established by the commission. This commission already exists under the name Integrity and Patriotism Commission. It will be renamed the High Committee to Implement the Criteria for Occupying Public Positions, with the same membership.

Although the draft law ensures the right to appeal a decision by the commission, the law lacks guarantees for people subject to exclusion of minimum due process rights such as the right to be heard during the hearing and the right to legal counsel, Human Rights Watch said.

On April 9, Congress approved an amendment to the Constituent Covenant, Libya’s provisional constitution, to exclude any possibility of judicial review of the political isolation law once Congress passes it. That would eliminate the possibility that the Supreme Court could strike down the law. In 2012, the constitutional chamber of the Supreme Court struck down the law criminalizing “glorification of the tyrant,” ruling that it was unconstitutional.

“Libyan lawmakers should be entrenching legal safeguards to ensure that laws that violate human rights and the provisional constitution can be ruled invalid, not removing these protections to ‘immunize’ questionable draft laws against the test of judicial review,” Whitson said.

The proposed law would likely violate Libya’s provisional constitution and also breach the country’s international human rights obligations, Human Rights Watch said.

International law requires Libya to allow all citizens the right to hold political office without discrimination based on political associations. As a state party to the International Covenant on Civil and Political Rights (ICCPR), Libya is required to allow its citizens equal opportunity to participate in political life, without discrimination or “unreasonable restrictions.” The African Charter on Human and Peoples’ Rights, also ratified by Libya, requires states to ensure that every citizen has the right to participate freely in the government of their country.

“The GNC should not allow itself to be railroaded into making very bad laws because groups of armed men are demanding it,” Whitson said. “Libya’s long-term prospects for peace and security will be seriously diminished if the congress agrees to nod through this law.”