The security situation in Libya remains chaotic - not ideal conditions to draw up a new constitution. But a 63-year-old constitution, framed under the old monarchy, could help the federalists.
Libya currently lacks a lot of things that make up a functioning state - stability, security, an effective government, a head of state and a constitution. This last issue, at least, could be resolved soon. The newly-elected constitutional council is set to begin its work on Monday (14.04.2014) and it is supposed to deliver a draft for a new basic order for the country within 60 days. However, those talks have already been thrown into disarray with Sunday's resignation of interim Prime Minister Abdullah al-Thani in reaction to an attempted attack on his family. The talks themselves are unlikely to be without conflict because several interest groups are making demands and various militias are keen on maintaining their own power and influence.
The council itself has not had an auspicious start either. The Libyans have twice been forced to elect its 60 members. But following threats from individual militias and several bombings, many polling stations remained shut. On top of that, some ethnic minorities - notably Berbers, Tuaregs and Tubus - called for a boycott because they felt their two seats each did not adequately represent them. Only 14 percent of those eligible voted.
But it wasn't only the low turnout that raised doubts about whether the constitutional assembly reflected the interests of everyone in the country. Each of Libya's three historical regions - Tripolitania in the West, Cyrenaica in the East, and Fezzan in the South - was granted 20 seats on the council. But many more people live in Tripolitania than in the other two regions put together, which means that certain votes have more value, explains Libya expert Wolfgang Pusztai. At the same time, almost all of the country's oil wealth is in Cyrenaica, where federalists are insisting on their autonomy. All of these factors will have an effect on the council's work, predicts Pusztai, who worked as Austrian defense attaché in Tripoli from 2007 to 2012.
Gadhafi sons on trial
At least the council no longer has to take into account the interests of the cliques that dominated the reign of Moammar Gadhafi. Monday also sees the beginning of the trial of Gadhafi's sons, Saif al-Islam and Saadi, and other leading representatives of the regime that was toppled in 2011. They are accused, among other things, of murder, kidnapping, and embezzlement.
In the coming weeks, the framers of the constitution will first have to decide what kind of state Libya is to become. "Should it be a republic, and if so, what kind?" Pusztai wonders. "An Islamic republic? A federal republic?" Another major question is what influence Sharia law is to have on the legal system.
If, at some point, there is to be a draft constitution at all, it will also have to find the necessary majorities in the transitional parliament and in a referendum. But at the moment in Libya, militias wield more power than political or ethnic majorities. Armed groups wanting to prevent a law being enacted have already brought heavy weapons to bear several times. This is one of the biggest problems the country faces, according to Mohammad Mahmoud Ould Mohamedou of the Geneva Center for Security Policy, because state structures have been largely dismantled.
"What we have instead is a 'militia-fication' of politics," Mohamedou told DW. The planned constitution must stand against this as one element in the reconstruction of the state. "A constitution is not just a text," he said - it is a guarantee that there will be a certain way that politics will be carried out. "It is a living document," concluded Mohamedou.
Reintroducing the monarchy?
But what could such a document look like if it is to represent the interests of as many Libyans as possible? There have been several calls for a return to large parts of the political system of the Libyan monarchy in the 50s and 60s. Foreign Minister Mohammed Abdelasis has even proposed re-establishing the monarchy itself. Most people do not want to go that far, but at the moment the old kingdom looks a lot more attractive that the Gadhafi era or the current state of near-anarchy.
"There is a nostalgia," says Mohamedou, describing the mood in Libya, something well-illustrated by the return to the old monarchy flag. Moreover, references to the old Libyan nation, when federalism was deeply rooted, are now commonplace.
Then again, the monarchy did have two different constitutions. The one from 1951 was very federalist, explains Pusztai, and it gave the three regions major powers: "Even the capital was rotated between Tripoli and Bengazi."
But the major oil companies did not want to have to negotiate with myriad local representatives as well as the central government, which led to the pressure to establish the new constitution in 1963. But today's federalists, who occupied important oil loading terminals in the past few months, have no interest in negotiating on the basis of this - they much prefer the 1951 model.
By meeting in Al-Beidha, Pusztai said, the constitutional council has chosen a highly symbolic location: This was the first town to be liberated from Gadhafi's power in 2011. And, Pusztai recalls, "it was where the first, and for the time, very modern, constitution was written in 1951."