On 24 March 2013, about 200 former rebel fighters in Libya besieged the prime minister’s office, demanding that he resign in accordance with a political isolation law banning members of the former regime from political life. Ali Zeidan, the current prime minister of Libya, served as a diplomat under Gaddafi.
The draft political isolation law being debated applies to anybody who held an official position during the final two decades of Gaddafi’s rule, which includes many who have played a prominent post-revolutionary role in Libya. However, there are calls for this draft law to be expanded to include anybody who held an official post over the entire period of Gaddafi’s 42-year rule. This would exclude the majority of governmental and parliamentary figures.
The proposed law bears a striking resemblance to the disastrous de-Baathification in Iraq. After the collapse of the Baath regime following the 2003 American invasion of Iraq, the Baath party was outlawed and all Baathists lost their jobs. As a result, hundreds of thousands of bureaucrats, civil servants, police officers, and members of the armed forces became unemployed, fuelling the insurgency which continues to this day.
As Miranda Sissons, former head of the Iraq program at the International Centre for Transitional Justice, pointed out, many countries in the Middle East are now struggling to find a way to effectively dismantle the political structures of former regimes. The expansion of the proposed political isolation law in Libya will be a recipe for the alienation of thousands of people who could make valuable contributions to the development of the country.
On 6 March 2013, hundreds of armed gunmen threatened lawmakers and held them hostage in an attempt to force approval of the controversial law. The will of the electorate and the independence of the judiciary must waver in the face of those who resort to violence to impose their will. A fait accompli imposed by the force of arms in such circumstances will never be legitimate.
The Roots of Justice
It has been said that in post-Gaddafi Libya the men who slept in the desert, not the men who slept in five-star hotels, should rule. While no one can deny that the revolutionaries who toppled the regime must be assured of their rightful place in government, the victor’s justice must be fair or else we will have merely replaced one form of tyranny for another.
The English philosopher John Locke highlighted the consequence of people taking the law into their own hands when he wrote of, “those evils, which necessarily follow from men being judges in their own cases” which is to “magnify the wrong suffered, if any, and to exact a punitive revenge rather than a dispassionate retribution.”
In Libya, because of a prevalent tribal culture and sentiments of regional bias, the judicial application of all laws is essential. It is incumbent on Libyans, who exercised their free will and chose the path of democracy, to reject extremism and dogmatism.
When a 42-year-old regime ends as a result of a violent revolution, anomie is inescapable. But it is the duty of the successor regime to come up with a strategy that ensures justice is dispensed fairly.
The present and the past are always entwined and the burden of the past will continue to be an albatross around our present and future. The only way we can ensure that this albatross does not bring us down is if we find ways by which we can deal with our past and move on, rather than remain forever captive to our past.
One avenue to take is to allow the truth to set us free. In a number of post-conflict societies airing grievances in public forums had a cathartic effect and was nationally therapeutic. These public forums brought perpetrators and their victims face to face. Publicly acknowledging the pain and grief of victims can reduce the likelihood of continuing a vicious cycle of revenge.
A truth-telling process, including full disclosure of human rights abuses, ensures that “the facts” remain alive in the national memory. The records of these proceedings should be incorporated in the curriculum of law enforcement training academies as well as law schools. Educational curricula should incorporate human rights, and the history of its abuse in Libya. This is how we should teach future generations of the mistakes and the crimes of the past in order to learn from them and to prevent their repetition.
For some, general knowledge of the truth is not enough. An official recognition of the injustices that have been suffered is necessary. This can only be achieved through a uniformly and judicially applied law, specific to this transition period to close the chapter of the past in order to usher in the far more important future chapter.
If we are to put in place a transitional justice process the essence of the process will need to be the establishment of accountability for past crimes of human rights abuses and to address allegations of participation in systematic abusive practices in a court of law, in a transparent and fair manner. It is in the proceedings of this transitional justice process, perhaps more than anywhere else, that the concept that “justice must be seen to be done” is of paramount importance, in particular in helping speed up the national reconciliation process. Seeing their tormentors brought to justice is a moral obligation owed to all victims. It can have a tremendously important cathartic effect both on the individual and national level.
It should go without saying that in the long term, a fairly administered justice system is fundamental to reconstructing a morally just society. Not only will it combat and ultimately stem the rise of vigilantism; but justice served and seen to be done will also be an important deterrent against future abuses of human rights.
A Haunted Revolution
If Libyans fail in cleansing themselves of their heinous past, they will forever be beset by incessant ruminating. The worst investment we make in the future is to allow the present atmosphere of vindictiveness revenge seeking to prevail. Unfortunately this is what is taking place at present and the political exclusion law is fuelling the fires of revenge and the blood lust which feeds it.
Life under a totalitarian regime with its lawlessness should have taught us Libyans the importance of legal security in its most elementary sense of freedom from arbitrary, selective and collective punitive measures, including those of political exclusion.
In building a democratic Libya we should be cognizant of the fact that the notion of equality in justice could not be more important. In practice this means just laws shall be applied without discrimination.
The emphasis on a central role for the rule of law and equality before the law cannot be meaningfully discussed in the absence of a robust and independent judiciary not susceptible to pressures emanating from transient popular whims and prejudice nor one which conforms to executive pressure for the sake of political expediency.
It is broadly accepted that an independent and empowered judiciary is central to the rule of law. An independent judiciary is equally central to the maintenance of horizontal accountability, without which democratic development is impossible.
A national consensus must be reached on whether a small number of individuals should be expected to forfeit their right to participate directly in government, for a limited period of time, as a result of them being proven to have been an integral part of the Gaddafi regime.
If this is done, it must not be as the result of armed gangs threatening members of the public or parliament to introduce such a law. If such a law is to be introduced it must be limited in scope, subject to judicial review, and must not contradict every person’s right to a fair trial.
Legitimacy cannot stem from the barrel of a gun but from the will of the people exercised freely through the ballot box.
One cannot but feel grief at the sight and sound of swathes of Libyans “politicians” who are increasingly spewing hatred and foaming malevolence in pursuit of the same nationally divisive and at times tyrannical politics of the former regime. There is no moral or legal distinction between the violence, malevolence and tyranny when practiced by the onetime exploited and oppressed and that of their exploiters and oppressors.
Libya is currently at a crossroads. History is filled with revolutions that begin with much hope and promise, but end with variants of the same form of tyranny that they ostensibly sought to end. Libyans must eschew the nihilistic politics of revenge and adopt policies of reconciliation and inclusion. This is the only road to national salvation.
Abdullah Elmaazi is founder and CEO of Trakon Consulting & Training. He is a regular contributor to The Tripoli Post.
The views expressed by the author do not necessarily reflect Al-Akhbar’s editorial policy.