[The following report was published by Human Rights Watch on 3 February 2014]

Human Rights Roadmap for a New Libya

Introduction

After four decades of authoritarian rule, Libya faces the challenge of reforming outdated and repressive legislation and writing new laws that guarantee the full panoply of citizens’ rights. The enduring legacy of Muammar Gaddafi’s rule includes laws that have curtailed the freedoms of generations of Libyans. Since the 2011 revolution in Libya, with some exceptions such as repealing a Gaddafi-era law criminalizing the establishment of political parties, the transitional authorities have added to the problem by issuing some new laws that limit freedoms.

The process of legislative reform needs to be Libyan-led.  Libyan legislators, after wide consultation, should dismantle the abusive legal architecture of the Gaddafi-era and construct a new system based on rights.  At the same time, Libya has international human rights obligations that it is bound to respect. This report highlights the main areas of legislative reform and changes to specific laws needed to bring Libya into compliance with international norms.

Eleven Areas for Reform

This report identifies eleven key areas for legislative reform in Libya. It is not an exhaustive or comprehensive blueprint.  Rather it addresses the key shortcomings of the Penal Code and some Gaddafi-era laws. It also identifies the problematic new laws passed since  the ouster of Gaddafi.

Freedom of expression and speech: Legislators should protect free speech and expression, including in media and press regulation laws, defamation laws, and laws against offending religion. Legislators should repeal all articles and all other provisions of the Libyan Penal Code, such as criminal penalties for defamation and insult to religion and ensure that any legal limitations that are retained are necessary and proportionate and comport with Libya’s international treaty obligations. At present, penal code articles 195, 205 and 245 stipulate prison terms for “insulting” public officials and the Libyan nation or flag.  Article 207 imposes the death penalty for “promoting theories or principles” that aim to overthrow the political, social or economic system.

To maintain Libya’s vibrant post-2011 media landscape, legislators should also ensure that licensing procedures and regulatory mechanisms applicable to the media guarantee non-discrimination, including on the grounds of language, political or religious views, ethnicity or gender.  Access to airwaves should be available for a diversity of information and views, including news and political opinions.

Crimes against the state: Legislators should define all crimes clearly so that a person can accurately predict if a specific act will amount to a crime. This particularly applies to so-called “crimes against the state” which are vaguely defined in existing laws and carry heavy penalties.

Freedom of association: Legislators should reform Penal Code articles that undermine freedom of association. Legislators should focus and narrow the definitions of criminal acts and ensure they exclude peaceful and legitimate exercise of the right to freely express opinions, conduct peaceful demonstrations, and legally establish associations. They should also repeal the death penalty levied as punishment for establishing or participating in unlawful organizations, and adopt a law for civil society organizations (NGO law) that would regulate non-governmental organizations in accordance with international freedom of association standards.

Freedom of assembly: Legislators should guarantee the right of peaceful assembly. The 2011 protests against Gaddafi show the vital importance of freedom of assembly and the right to peaceful demonstrations. Legislators should revise a recently issued law [65/2012] on guidelines for peaceful demonstrations in order to make sure that any restrictions placed on a public gathering are limited to what is strictly necessary for protecting public order, public morals, and the rights of others.

Torture: Legislators should adopt a definition of torture consistent at a minimum with international standards. Torture is prevalent in prisons around Libya. With over 8,000 detainees currently in custody, around half of them still in the hands of armed groups outside of the control of the state, legislators should reform laws on torture. First and foremost, the Penal Code should include a definition of torture aligned with the definition in article 1 of the UN Convention against Torture. Libya should also ratify this convention’s optional protocol.

Corporal punishment: Legislators should remove corporal punishment from Libyan legislation. Several Gaddafi-era laws prescribe lashings and amputation of limbs for prohibited acts such as extra-marital intercourse. The mere existence of these punishments in Libyan legislation is a clear violation of international law which prohibits cruel, inhuman or degrading punishments.

The Special Procedures Law and impunity: Legislators should ensure that Libyan laws address the most serious international crimes past and present. They should accordingly amend the Special Procedures Law [38/2012] enacted by the interim National Transitional Council, after the 2011 conflict that grants immunity from prosecution for serious crimes, including war crimes and crimes against humanity, conducted by anti-Gaddafi revolutionaries as long as these acts were “necessary” for the success of the revolution. Legislators should amend this law to exclude amnesty for those responsible for serious international crimes such as murder, torture, sexual violence, enforced disappearance and forced displacement. The culture of impunity encouraged by such laws can lead to such crimes being repeated.

Death penalty: Legislators should abolish the death penalty. The death penalty is stipulated in over 30 articles in the Penal Code, including the exercise of rights that should be protected under free expression and association standards. Since this form of punishment is final, and inherently inhumane in its nature, lawmakers should abolish the death penalty in all civil and military legislation.

Violence and discrimination against women: Legislators should ensure protection for women’s rights and provide for equal opportunities and non-discrimination. This requires the repeal or amendment of current laws that discriminate against women, effectively sanction violence against women in cases of alleged adultery, and deny women a remedy against abuse or discourage them from reporting domestic violence. Libya should also remove its reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The drafters of the new constitution should guarantee effective protection of women’s human rights as they are recognized internationally, including in CEDAW and the African Maputo Protocol.

Rights of migrants and asylum seekers: Legislators should protect the rights of migrants and asylum seekers in Libya. Migrants, asylum-seekers and refugees face multiple risks and lack protection due to the absence of a legal framework governing their rights. Libya should ratify the 1951 Refugee Convention and its 1967 Protocol, and enact the asylum law that has been in draft for several years.

Political Rights: Legislators should repeal a law on political isolation passed by the GNC on May 5, 2013, and which came into force on June 5, 2013. The law bars Gaddafi-era officials from holding public office for a period of 10 years. The proposed law’s provisions and procedures for exclusion would likely violate human rights standards as they are too vague and too broad. Further, a recent amendment to the provisional constitution would prohibit judicial review of the law.

A number of important issues fall outside the scope of this report. For example, the code of criminal procedures and the military code for criminal procedures both need to be reformed to ensure conformity with international standards and to provide safeguards and fair trial standards for civilians and members of the military charged with criminal offenses. Military courts should be strictly limited to offenses of military discipline. Civilians should not be subject to military courts as defendants. Libya’s appeals processes and the right to remedy in all phases of legal procedures also need to be reformed.

The report also does not address the critical issue of the new constitution, which will be drafted by a Constituent Assembly of 60 people chosen through elections.

Libya is presently experiencing a chaotic transition, in which the interim legislature, the General National Congress (GNC), is not fully functioning. This report presents the key areas and laws that the GNC and future legislatures should consider when enacting reform.

Background

Libya’s last constitution was promulgated by the National Constituent Assembly on October 7, 1951, during the reign of King Mohamed Idriss Al Senussi. Shortly after he seized power in the military coup d’état in 1969, Muammar Gaddafi abolished this constitution. On December 11, 1969, Libya adopted a Constitutional Proclamation, intended as a provisional measure until a permanent constitution could be adopted. However, during Gaddafi’s 42-year rule, a permanent constitution was never introduced. Instead, the country was governed by the proclamation, a series of fundamental laws deemed to have constitutional weight  (the 1997 Declaration of the People’s Authority, the 1998 Green Charter for Human Rights of the Jamahiriyan Era, and Law 20), and the Libyan Penal Code. Taken together, these laws theoretically guaranteed many basic human rights. But there were significant exceptions, particularly regarding freedom of expression and association. Some rights were further undermined by legislation that criminalized free association and speech. Gaddafi’s “Green Book,” first published in 1975, also served as a set of basic principles to govern citizens’ rights and responsibilities and the basic functioning of the state.

The Libyan Penal Code was originally issued in 1953, and influenced by Italian and French legal systems, as well as elements of Sharia, Islamic law. Over the decades of Gaddafi’s rule, it was amended several times. In the 1970s it was supplemented by laws governing economic crimes, political crimes, and later crimes that constituted “terrorist acts.” Other laws in the code, including “defamation” of public officials and prohibitions on establishing organizations, constitute serious infringements on freedom of speech, assembly, and association. Punishments are severe, and include corporal punishments, such as flogging, as well as the death penalty.

On August 3, 2011, in the final weeks of the armed conflict which precipitated Gaddafi’s downfall, the National Transitional Council (NTC) issued a provisional “Constitutional Declaration” to serve during the transitional period until a permanent constitution could be drafted and ratified. The declaration consists of five sections that lay out general provisions for statehood, civil rights and public freedoms, the system of government during the transitional period, and judicial guarantees.

Article 1 of the declaration stipulates that Islamic law, Sharia, should be the main source of future legislation. It also protects the right of non-Muslims to practice their religion and protects the linguistic and cultural rights of minorities. Article 6 guarantees all Libyans equality before the law without distinction based on religion, beliefs, language, wealth, gender, kinship, political opinions or social status, or tribal, regional or personal association.

Article 7 describes the state’s role as protector of human rights and basic freedoms, and commits the state to join regional and international declarations and covenants to protect these rights and freedoms. In February 2013 Libya took first steps in that direction by signing, though not yet ratifying, the Convention on the Rights of Persons with Disabilities and the International Convention on Enforced Disappearances.

Freedom of opinion, speech, and assembly, including peaceful demonstrations, are guaranteed in article 14. Article 15 guarantees the freedom of establishing political parties, associations and other civil society organizations.

There are also judicial assurances in the declaration. Article 31 guarantees the principle of legality, the presumption of innocence, fair trials, and the right to recourse. Article 32 guarantees the independence of the judicial power and article 35 states that all provisions in existing legislation continue to be effective unless they are inconsistent with the declaration.

The declaration, which was drawn up in haste and in secrecy, has notable gaps. For example, it does not address how rights will be implemented or what will happen to laws that do not comply with international standards. It says nothing about arbitrary detention and very little about economic, social, and cultural rights.

The declaration envisioned the drafting of the constitution by a committee of 60 experts elected from within a newly elected transitional parliament, the General National Congress (GNC). However, facing pressure from protesters in Libya’s east who threatened to block the GNC elections, the National Transitional Council amended this provision on July 5, 2012, just days ahead of the general elections. According to amendment 3/2012 of the Constitutional Declaration, the drafting committee of the constitution must now be elected in a general election. A panel of thirteen experts, including three GNC members, has been appointed to draft the electoral law. 

One urgent challenge for Libya’s legislators is to ensure that the process for drafting the constitution is inclusive of various Libyan groups, including minorities and women. On July 20, 2013, the GNC approved law 17/2013 governing the election of the constituent assembly, which is expected in December 2013. At time of writing, the law had yet to be published. 

The law stipulates election of a committee of 60 by a direct individual electoral system, and distribution of the seats along the lines of Libya`s three historical regions, with 20 seats each for Tripolitania, Cyrenaica, and Fezzan. The law mandates six seats for women and another six for the three main minority groups: Amazigh, Tebu and Tuareg. In October 2013 the Amazigh community said it would boycott the elections for the constituent assembly to protest the low number of minority representatives.  Libyan women’s groups have also protested the low quota for women.

The National Transitional Council, in its capacity as the interim legislative authority prior to the election of the GNC in July 2012, issued a set of new laws and several amendments to the Constitutional Declaration and the Penal Code. In June 2012, the Supreme Court struck down the NTC’s Law 37, which criminalized the glorification of “the tyrant” (Muammar Gaddafi), declaring it unconstitutional.

On July 7, 2012, a popular vote elected the 200-member General National Congress to replace the National Transitional Council from August 8, 2012 onwards. Today, the GNC is the main legislative authority in Libya in charge of drafting and enacting laws. The GNC has an interim mandate scheduled to end on February 8, 2014 when it is to be succeeded by a permanent elected parliament.

[Click here to read the full report]