Civil society and foreign donors in Libya Part I
By Barah Mikaïl, senior researcher at FRIDE
Published in FRIDE.
In Libya, political civil society is a novelty. Mostly banned under Muammar Gaddafi, non-governmental organisations (NGOs) have mushroomed in post-2011 Libya thanks to newly acquired freedoms. The influx of foreign donors to the previously isolated country, providing technical and financial assistance, has contributed to building up the capacities of the Libyan NGO sector.
Having been subjected to propaganda about foreign ‘conspiracies’ for decades, Libyan society is slowly adapting to the idea of development assistance from abroad as a friendly means to help the country’s democratic transition. A highly politicised issue in Egypt and Tunisia, the topic of ‘foreign funding’ and how it is addressed in Libyan public debate differs from its neighbouring countries in several ways. Libya’s economic wealth, while not yet mobilised to build up civil society capacities as such, sets the stage for popular attitudes regarding external support to building Libya’s new order. Unlike in Egypt (where the Muslim Brotherhood has suffered a major reversal with the removal of President Morsi by the army following massive street protests, but remains a strong political movement and contender for power) and Tunisia, Libya’s Islamist parties are relatively weak. It follows that the anti-Gulf sentiments on the rise in several North African countries – motivated mainly by the Gulf’s alleged backing of Islamic forces – are less widespread in Libya. The great importance that tribal structures and decentralised governing models could have in the future is already affecting the impact potential of donors based in Tripoli. At the same time, the country’s fragile security situation significantly limits the scope for both domestic and external actors to venture beyond the big cities.
1. Civil society under Gaddafi
Since coming to power in 1969, Gaddafi frequently discredited Western and other foreign actors as hatching hostile plots against Libya and seeking to interfere in the country’s internal affairs. The Colonel’s anti-Western stance was further strengthened in 1986 when the United States launched airstrikes against Libya in retaliation for the country’s sponsoring of terrorist acts against US troops and citizens. Gaddafi continuously stressed his preference for in-depth relations with African and Arab countries. Even though the Colonel’s official renunciation to develop Weapons of Mass Destruction (WMDs) in December 2003 led to improved relations with the West (in particular with France, the United Kingdom, Italy, but also the United States), he remained cautious about Western states and their allies, including from the Arab world. Accusations of foreign conspiracies also targeted non-state actors such as al-Qaida. The outbreak of the Libyan uprisings in February 2011 quickly led Gaddafi, in a number of fiery televised speeches, to portray them as the result of a hostile ‘foreign plot’.1 When the initial uprisings turned into a civil war, however, Gaddafi’s ‘foreign plot’ rants failed to impress his opponents. Following Gaddafi’s death, there was no indication that the kind of anti-Western propaganda used by the pre-revolution regime continued to play an important role in political discourse.
Under Gaddafi, the legal framework for civil associations in Libya was among the most restrictive in the region, effectively impeding the emergence of a genuine civil society. Under the 1971 Association Act, NGOs were formally tolerated, but very few existed.2 Law 19 of 20013 imposed further restrictions on freedom of association. Registering a new association could take up to two years, with no guarantee of obtaining a permit. Associations had to be approved by the security apparatus and had to include government representatives among their leadership.4 Partly as a result of these constraints, only 22 NGOs were registered prior to the February 2011 uprisings.5 Regarding foreign funding, Law 19 of 2001 (Art. 14) banned cooperation with organisations whose headquarters lay outside of the ‘Great Jamahiriya’, including receiving financial donations not cleared by the Secretariat of the General People’s Committee. While access to foreign funding was not completely prohibited under the law, these restrictions and the climate of fear that prevailed during most of Gaddafi’s tenure largely dissuaded civil society from seeking foreign financial support. In January 2010, one year before his fall, Gaddafi stated that the idea of civil society had no place in his country and sought fully to ban NGOs in Libya.6
There were some, although rare, attempts by foreign actors to promote projects in Libya in partnership with local civil society before the fall of the Gaddafi regime. For example, the United States was an active promoter of cultural and youth-related projects, in particular under US Ambassador Gene Cretz from 2008 to 2012. But fears of public accusations of collusion with the US dissuaded Libyans from implementing projects on the ground.
2. The post-Gaddafi era
In the aftermath of Gaddafi’s fall, numerous new associations were set up. Most of these new NGOs seek to improve Libyans socio-economic living standards by building infrastructure, improving the health and education sectors, creating growth and employment, or promoting the study of foreign languages. Others focus on more political issues, such as strengthening citizens’ rights, raising awareness about electoral participation, or giving input for the drafting of the new constitution. In the absence of official statistics, quantitative estimates of the number of NGOs range from several hundreds to thousands. According to the Libyan High National Election Commission (HNEC), 7 by May 2012, 374 ‘political entities’ (including political parties, unions and associations, among others) had been officially registered, but given that many associations have not sought official registration, the actual number is estimated to be much higher. Around 100 political parties are currently registered in Libya, of which 63 are represented in the General National Congress (GNC).8 The growth of the associative sector has been very uneven across Libya, with urban centres such as Tripoli and Benghazi registering the largest numbers of new associations, unmatched by other regions or towns such as Sebha or Mesrata. With Libyan civil society being built largely from scratch, developing organisational capacities constitutes a major challenge.
After the fall of Gaddafi, many foreign donors took the opportunity to establish a presence in Libya. Although the Ministry of Culture is formally entitled to allocate funds to support civil society activities, hardly any of this money is actually disbursed due to the Ministry’s dysfunctional organisation and opaque practices inherited from the Gaddafi era. The unavailability of domestic public funding for civil society and the lack of involvement of the state in local development projects provide considerable room for international donors to fill this niche. Aside from humanitarian aid in the immediate aftermath of the civil war, large part of foreign aid to Libya (if not explicitly earmarked for civil society capacity- building) is channelled through civil society.9 In the early transition context, support to the political process, including the monitoring of elections, organising public opinion, and technical support to constitutional debates, has received special attention. However, the fragile security situation has discouraged many foreign actors from expanding their activities geographically beyond Tripoli and, in part, thematically.
3. The current legal framework
While Libya’s young civil society is flourishing, a formal legal framework that regulates the sector’s activities is still lacking. However, various implicit red lines delimit the work of civil society organisations (CSOs), such as not threatening Libya’s national security, or avoiding sectarian rhetoric. Until a law on associations is finally adopted, NGOs can organise freely and benefit from any type of aid, as long as these red lines are not overstepped. The freedom resulting from this lack of regulation has facilitated the rapid growth of Libya’s NGO sector in the past two years.
At the time of writing, a draft law on associations (Mashru’ Qanun bi-Shaan al-Jam’iyat) is being debated in the General National Congress.10 The current draft allows associations to develop their activities freely, and without interference by the authorities unless by judicial decision (Art. 8). Associations must respect ‘democracy, civic values, equality, human rights, transparency, the fight against corruption, national laws and international conventions’ (Art. 1). Article 5 bans any distinction based on race, gender, language, or ethnical or tribal affiliation. Some interpret this article as excluding the possibility of developing projects based on communitarian identities or cleavages, depriving tribes and clans of a claim to a specific legal status.11
At the moment, the draft law allows associations to receive both public and private funding in the form of ‘gifts, donations, and loans’. While details on domestic public funding still need to be determined at this stage, associations have the right to receive money from international donors (Art.13). Transparency is a pre-condition for the receipt of foreign funds: the draft law states that any foreign donation to a Libyan NGO must be published in a Libyan newspaper and declared on the association’s website within a month after funds are received. While the draft law does not explicitly seek to regulate the presence of foreign NGOs on Libyan soil, Article 15 mentions the possibility for foreign associations to extend their activities to Libya and open local branches in the country. It is likely, however, that the draft law will be further amended before its adoption.
The far-reaching freedom for Libyan associations contrasts strongly with the strict legal provisions for political parties. Laws governing political party funding tightly limit parties’ fundraising options, to a degree that has been criticised as distorting political competition by favouring some parties over others. A controversial decision taken by the former National Transition Council (NTC) on 24 April 2012 to ban all parties organised along religious, regional, tribal or ethnic lines was lifted soon after. In May 2012, the NTC adopted Law No. 4 on the foundation and activities of political parties12 in preparation for the GNC elections held on 7 July 2012. Since then, the HNEC has been working on the draft of a new, comprehensive electoral law.13
According to the legislation in force, foreign funding to political parties is prohibited (Art. 39). There are currently no public domestic funds available for parties, and the use of private domestic funds is highly regulated. HNEC regulation No. 85 -2012, issued in June 2012, sets spending limits for the campaign activities of both individual candidates and political parties, based on the population of a given electoral district. Limits range from 90,000 to 400,000 Libyan dinars (€53,000-235,000 Euros) for parties and from 25,000 to 150,000 Libyan dinars (€15,000-88,000) for individual candidates.14 A detailed expenditure statement, including the total revenue both during and outside electoral campaigns, specifying funding sources and nature, must be submitted to the HNEC within 15 days of the announcement of the final election results (Art. 25). Candidates may not use public funds for electoral campaigns (Art. 39) . Art. 24 also includes the requirement to deposit campaign donations in a bank account and to provide regular updates on the use of funds to the HNEC. However, infringement of this monitoring provision merely leads to imprisonment of up to one month or a fine not exceeding 300 Libyan dinars (approximately €177).15
Forbidding parties from accessing public domestic funding and limiting their funding options to private domestic donations, membership fees and other private domestic revenues pose severe constraints on Libya’s young political party landscape, as it favours parties with business connections and greater media exposure. Opening access to public funds to parties on the basis of membership numbers and/or electoral results – in line with international standards – would contribute to building a more efficient and representative environment, where equal opportunities are given to a wider range of political forces. Provisions to provide public funding to political parties are currently under debate.
As for foreign funding, despite legislation forbidding funding from abroad to political parties, several loopholes, coupled with the lax control over cash flows, allow foreign actors to channel money into the country with relative ease. This has led to a number of allegations and mutual accusations among political parties of benefiting of opaque sources of funding from abroad, notably in the run up to the 2012 elections.
1 See for example http://www.dailymail.co.uk/news/article-1360343/Libya-Gaddafi-blames-Osama-bin-Laden-hallucinogenic-pills-Nescafe-uprising.html
2 Bertelsmann Transformation Index (BTI): Libya Country Report, Bertelsmann Foundation, 2012, available at: http://www.bti-project.de/fileadmin/ Inhalte/reports/2012/pdf/BTI%202012%20Libya.pdf
3 Law 19/2001, full text (in Arabic) available at: http://www.icnl.org/research/library/files/Libya/19-2001-ar.pdf
4 See Foundation for the Future, ‘Assessing needs of civil society in Libya: an analysis of the current needs and challenges of the civil society in Libya’, November 2011, available at: http://foundationforfuture.org/en/Portals/0/PDFs/ASSESSING%20NEEDS%20OF%20CIVIL%20SOCIETY%20 IN%20LIBYA.pdf
5 Mercy Corps and The Governance Network, ‘Beyond Gaddafi: Libya’s governance context’, August 2011, available at: http://www.mercycorps.org/ sites/default/files/capacity_to_govern-libya_26_aug_2011.pdf
6 Gaddafi says no to NGOs’, News24, 29 January 2010, available at: http://www.news24.com/Africa/News/Gaddafi-says-no-to-NGOs-20100128
7 The Libya Report, 24 May 2012, available at: http://www.thelibyareport.com/taxonomy/term/12/80-electorate-register-vote
8 There are 6 political forces in the GNC, given that the Alliance of National Forces is composed of 58 political parties.
9 A list of humanitarian pledges, commitments and contributions to Libya for the year 2012 can be found at: http://fts.unocha.org/reports/daily/ ocha_R10c_C121_Y2012_asof___1306100204.pdf
10 Draft Law on Associations, full text (in Arabic) available at: http://www.icnl.org/news/2012/draft-libyan-law-on-associations-AR.pdf
11 Decentralisation should be one of the priorities of the GNC. Tribal politics poses serious challenges, notably in the south of the country. While this issue is often underestimated by the media and research reports, a brief but useful reading on the matter can be found at V. Stocker and K. Mezran, ‘The Libyan southern front: between conflict and dialogue’, Atlantic Council, May 2013, available at: http://www.acus.org/ viewpoint/libyan-southern-front-between-conflict-and-dialogue. See also Cyrenaica’s declaration of autonomy at: http://allafrica.com/ stories/201306050902.html.
12 See: http://hnec.ly/en/modules/publisher/item.php?itemid=7
13 ‘HNEC being re-organized for constitution committee elections’, Libya Herald, 11 February 2013, http://www.libyaherald.com/2013/02/11/hnec-being-re-organized-for-constitution-committee-elections/
14 Project on Middle East Democracy, ‘Backgrounder: previewing Libya’s elections’, 5 July 2012, available at: http://pomed.org/wordpress/wp-content/uploads/2012/07/Previewing-Libyas-Elections.pdf
15 It is important to note that strict provisions against political party funding from foreign sources must be seen against the background of the presumed connections between some Libyan political parties and regional political actors, namely Qatar. Despite Libyan Islamist parties’ relatively meagre electoral results, Islamists exerted strong influence in the NTC.