Libya is about to embark on the drafting of a new constitution. Depending on how this process is handled, it can either stimulate a constructive debate about the future system of government and move the country forward from the Gaddafi era, or it can simply exacerbate existing divisions.

A good constitution is one that has overwhelming support from the public – support that goes way beyond a simple majority. Without that level of support key elements will feel marginalised or excluded and question its legitimacy – which sooner or later is bound to cause problems. 

For an example of how not to do it, we need look no further than the constitution that was pushed through in Egypt under President Morsi. The Economist noted at the time:

"Mr Morsi ... put the constitution to a snap referendum, despite persistent street clashes, a boycott by judges who normally oversee polling stations, and stinging criticisms of the draft by, among others, prominent Islamist-leaning lawyers. 

"The Egyptian people had little time to debate the document. The opposition, after hesitating between calling for a boycott or a no vote, had little time to campaign against it. 

"The first round of voting was marred by multiple infringements, from alleged ballot-stuffing to unexplained delays at polling stations where stronger no votes were expected, prompting would-be voters to abandon seemingly interminable queues."

Results of the referendum showed 64% approval by voters. This might seem a comfortable margin but the relatively low turnout of just under 33% meant that only about 20% of eligible voters had said yes. Three of Egypt's 27 provinces actually delivered a majority "no" vote – most notably in Cairo governorate where almost 57% voted against.

Thus, instead of providing a building-block for post-Mubarak Egypt, the new constitution became a source of continuing controversy. Calls for it to be amended began almost immediately and opponents of the Muslim Brotherhood added it to their list of grievances.

In an article for the Libya Herald, Tarek Megerisi and Michael Meyer-Resende consider how such problems might be avoided (or at least minimised) in Libya. They argue that building a genuine consensus around the constitutional draft, rather than "simple majoritarianism", is the key.

As I explained in a blog post yesterday, the law establishing Libya's Constitutional Assembly does pay some lip-service to inclusivity. Six places in the 60-member drafting body have been reserved for women, plus a further six for ethnic minorities, but there are fears that they will be consistently outvoted.

Megerisi and Meyer-Resende, in their article, make a simple suggestion that could improve matters, even if it doesn't completely allay the fears of ethnic groups and women's rights activists. Their suggestion is to require a majority of two-thirds-plus-one (i.e. 41 members out of 60) for votes in the Constitutional Assembly.

This, they say, would encourage members to "reach out across divides and explore common ground", without allowing small groups of dissenters to "hold the entire process hostage".

Megerisi and Meyer-Resende also caution against too much haste in the drafting process. "A constitution," they say, "can only serve as a stable, legal fundament if it is properly consulted, negotiated and agreed – which takes and deserves time." 

  
Posted by Brian Whitaker
Monday, 29 July 2013