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“If done properly and with 

sincerity, public participation 

can achieve more than just 

the adoption of a new constitution. By transforming the 

process from an elite-driven 

negotiation and drafting 

exercise into a national 

dialogue, public participation 

can provide a framework for 

building trust and can stimulate negotiation and reconciliation among political forces 

and other communities.”

September 1, 2011

Extending Libya‘s Transitional Period: 

Capitalizing on the Constitutional 

Moment

Summary

•	 The National Transitional Council (NTC) new Constitutional Declaration is a critical development in Libya’s transition to democracy. But while most features of the document are very 

positive, the relatively short timeline for the transition may create significant challenges.

•	 The current road map provides 60 days for the drafting of the constitution, followed by approval by the National Public Conference (NPC) and then ratification by national referendum. 

Sixty days is an almost impossibly short time to research, examine, negotiate and draft the 

numerous constitutional issues that must be addressed in the permanent constitution. 

•	 The compressed timeline effectively guarantees there will be no public consultation on the 

constitutional draft.

•	 Transforming the process from a negotiation driven by the Libyan elite to a national dialogue, 

with public participation, can provide a framework for negotiation and reconciliation among 

political forces and other groups to develop, strengthen and promote national identity.

•	 The rush to complete Libya’s transition to constitutional democracy is understandable. The 

NTC is attempting to assure Libyans it has no intention of dragging out the transitional 

period and holding on to power indefinitely, and it is protecting the legitimacy of the interim 

government—all laudable goals. Such considerations, however, should be balanced against 

the benefits of a longer and more participatory constitution-making process.

Introduction

The National Transitional Council (NTC) release of a Constitutional Declaration is a significant 

development in Libya’s transition to democracy. It provides the framework for functional democratic government upon the collapse of the regime of Col. Muammar al-Qaddafi, guarantees and 

respects human rights and the rule of law, and contains a roadmap for the drafting of a permanent 

constitution and subsequent election of a new government. But while most features of the 

document are positive, the compressed timeline for Libya’s transition may create challenges for the 

interim government and hinder the development of a new constitutional order.

Libya’s transition includes forming an interim council and government, establishing a constitutional commission to draft a new constitution, ratifying the new constitution by public referendum, and electing a new government. According to the Constitutional Declaration, all that must 

Jason Gluck

E-mail: jgluck@usip.org

Phone: 202.429.3886

peaceBrieF104
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Extending Libya’s Transitional Period: Capitalizing on the 

Constitutional Moment page 2 • PB 104 • September 1, 2011

be completed within approximately 19 months. This would be a daunting timeline under the most 

enviable circumstances. But it’s particularly difficult given the myriad other tasks facing Libyans 

during their transition: the restoration of public order, security sector reform and disarmament, 

demobilization and reintegration (DDR), reconstruction of war-torn cities all must be considered. On 

top of that, there is the need to restore critical public services, reconstitute the economic and natural 

resource sector, and balance calls for justice with the need for stability, peace, and reconciliation.

The Constitution-Making Timeline and Public Participation

The negotiation, drafting and ratification of Libya’s constitution, as articulated in Article 30 of the 

Constitutional Declaration, are done through an appointed Constitutional Commission, a National 

Public Conference (NPC, an elected interim legislature), and a national referendum. The commission is charged with drafting the constitution and submitting it to the NPC within 60 days. The NPC 

then approves the draft and submits it for ratification by public referendum within 30 days of its 

approval. 

But 60 days is an almost impossibly short time to research, examine, digest, negotiate and draft 

the numerous constitutional issues that need to be addressed in Libya’s new constitution. And, 

despite the considerable accomplishment of the Constitutional Declaration, there are still numerous difficult and contentious constitutional matters that will need to be resolved. 

The pitfalls of a compressed timeline for a new constitution are lessons we’ve learned from Iraq. 

The compressed constitutional timeline there of about six months forced the parties to make 

decisions over complicated matters without fully appreciating the options and implications of the 

choices being made. Within a year of the ratification of the constitution, the parties’ understanding 

and views of issues had evolved, and in many cases, they preferred different arrangements from 

the ones originally agreed to in the constitution. Unfortunately, the “constitutional moment” had 

passed—the Iraqi Constitution has proved much easier to pass the first time than amend later—and 

Iraqis are, in many cases, still struggling to reconcile their preferences with the constitutional text.

Furthermore, 60 days does not equal 60 days of actual drafting. There are dozens of administrative and logistical matters that will necessarily divert time and attention from the business 

of drafting the document. Selecting leadership, creating a secretariat, developing a media and 

outreach strategy, engaging the international community for support and a host of other issues 

will all take time.

The Benefits of Public Participation

The short timeline in Libya will also preclude substantive public consultation on the constitutional 

draft that has proved effective in places such as South Africa, Albania and Kenya. If done properly 

and with sincerity, public participation can achieve more than just the adoption of a new constitution. By transforming the process from an elite-driven negotiation and drafting exercise into a national dialogue, public participation can provide a framework for building trust and it can stimulate 

negotiation and reconciliation among political forces and other communities. A public conversation 

on the constitution can also help develop, strengthen and promote national identity based on 

the core values of the nation, educate citizens on the principles and practice of democracy, and 

demonstrate a commitment by the political leadership or government to those principles. 

South Sudan, for example, offers a cautionary tale on what can happen when even the bestintentioned constitution-making process excludes the public. The government of South Sudan 

had limited time to draft and ratify a transitional constitution before independence on July 9, 2011, 
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Extending Libya’s Transitional Period: Capitalizing on the 

Constitutional Moment page 3 • PB 104 • September 1, 2011

and it appointed a committe to do the work in just four months. As a result, the process did not 

include any civic education or public consultation. Unfortunately, even though the government 

promised substantial public participation in the later process to draft the permanent constitution, 

large segments of the public—the media, the Council of Churches, opposition political parties, state 

and local government officials, and numerous nongovernmental organizations, among others—

publicly criticized the transitional process for being exclusionary and lacking transparency. Where 

they disagreed with certain provisions, many groups accused the government of promoting its own 

self-interest, and thus undermined the legitimacy of the transitional constitution.

The lesson is that process matters. There will always be difficult and controversial constitutional 

choices. When processes are inclusive and participatory, groups that “lose” on an issue are more 

likely to accept the outcome and less likely to condemn and delegitimize the entire process, 

because they know their voices were heard and understand the rationale behind why difficult 

choices were made. 

But a process that invites the public to participate requires considerably more time than one 

driven only by elites. In South Africa, for example, there was approximately 17 months of civic 

education and consultations before the first draft was produced, with an additional five months 

of public comment on subsequent drafts before the final draft was submitted to the legislature for 

ratification. In Eritrea it took even more time: civic education, public consultation, and debate were 

almost continuous throughout a process that took three years. Sixty days simply will not allow for 

meaningful public input into Libya’s constitution-making process.

Ensuring Inclusiveness

The Constitutional Declaration goes to great efforts to ensure Libya’s transitional bodies are 

inclusive and representative of Libyan society. The Interim National Transitional Council (INTC), for 

example, is to be made up of representatives from the local councils from all cities and areas of 

Libya (Article 18), while the NPC is to consist of about 200 elected members “from amongst all the 

sons of the Libyan People.” (Article 30) One body, however, for which inclusiveness is not explicitly 

required, is the Constitutional Commission, which is to be appointed by the NPC without any 

further guidance on its membership. 

As the body mandated to negotiate and draft the constitution, it is imperative that the Constitutional Commission reflect the range of diversity in Libya, from a geographic, tribal, linguistic, 

ethnic and socioeconomic point of view. It should also include women, youth, civil society and 

political parties. 

The fact that the document will be approved by the NPC does not mitigate the need for 

representation on the commission. Here, again, the example of South Sudan is illustrative. South 

Sudan’s democratically elected legislature approved the Transitional Constitution, but this did not 

assuage grievances and concerns by those who were excluded from the drafting process. Similarly, 

final ratification by public referendum should not be seen as a substitute for ensuring all interests 

are included in the drafting process. The Iraqi Constitution, for example, was negotiated and 

drafted without participation from the Sunni minority. Though it passed at referendum, the Sunni’s 

exclusion prevented genuine compromise and consensus on fundamental constitutional issues, 

which, in the opinion of many analysts and observers, directly contributed to Iraq’s widespread 

sectarian violence in 2006-07.

Given the generosity and representativeness of the Constitutional Declaration in other areas, 

it is reasonable to believe the NTC intends the Constitutional Commission to be inclusive and 

representative of all Libyans. Special care by the NPC to ensure such inclusion is realized, or, 
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About This Brief

This Peace Brief examines 

the timeline for constitutional 

reform in Libya’s August 2011 

Constitutional Declaration with 

an eye towards ensuring Libyans 

have sufficient time to negotiate 

and draft a new constitution that 

will support Libya’s transformation 

towards constitutional democracy. 

The views expressed in it do not 

necessarily reflect the views of the 

United States Institute of Peace, 

which does not advocate specific 

policy positions.

even better, an explicit constitutional requirement for inclusiveness and representation would 

be prudent.

Options for Lengthening the Constitutional Timeline

The rush to complete Libya’s transition to constitutional democracy is understandable. By committing to a shorter transition, the NTC is attempting to assure Libyans it has no intention of dragging 

out the transitional period and holding on to power indefinitely. The NTC is protecting the legitimacy of revolution and the interim government and demonstrating its commitment to constitutional democracy, and for this it should be applauded. Such considerations, however, should be 

balanced against the benefits of including the public in the constitution-making process, even if it 

does take more time. 

There are reports that the Constitutional Declaration is merely an early iteration of the NTC’s 

evolving thinking on Libya’s transition, and that a second document—perhaps entitled “Constituent Covenant for the Transitional Period”—might be promulgated. That could lengthen the time 

for constitutional negotiation and drafting. Alternatively, the post-liberation Interim National 

Transitional Council could expand the constitution-making timeline by amending the Constitutional Declaration itself, as set forth in Article 36. Finally, within the existing framework of Article 

30, the NPC could take a substantial amount of time to “approve” the commission’s draft (it could 

even conduct its own civic education and public consultation). Given the short timeline of overall 

transition, it seems unlikely the NTC intends for the NCP to have long deliberations in the course of 

its approval. Furthermore, this approach would miss the opportunity of engaging with the public 

at the front end of the drafting process. 

Instead of undermining the legitimacy of Libya’s transitional government, a carefully orchestrated public information campaign explaining the rationale for lengthening the transitional 

period—to successfully negotiate and resolve critical constitutional matters and give the public 

the time to participate—would likely be greeted favorably. This could lead to a more legitimate 

constitution that better reflects the needs and aspirations of the Libyan people, help promote 

trust and reconciliation after the fall of the Qaddafi regime and strengthen Libya’s national identity. 

Most important, it would demonstrate that all Libyans have a place in their new nation.

Extending Libya’s Transitional Period: Capitalizing on the 

Constitutional Moment page 4 • PB 104 • September 1, 2011