On May 29, 2013, the United Nations Support Mission in Libya (UNSMIL) called for the active participation of women in the drafting of Libya’s constitution-drafting. The statement stresses the significant role Libyan women played in the February Revolution and the continued role they play in public life. The impact women had on the revolution is certainly true, but, we are missing a decisive point – that the participation of women in the drafting process (as well as in the political process in general) is a legal obligation under international law.
The United Nations Security Council (UNSC) Resolutions on Women, Peace and Security, along with CEDAW, stipulate that women should be included in the drafting of national constitutions. As applied to Libya, the Security Council resolutions, which pertain to enhanced gender roles and protections, and CEDAW, a treaty that encompasses recommendations for advancing women’s rights, are relevant in two ways. First, the laws demand women’s participation because of Libya’s post-conflict status. Security Council Resolution 1889 states that nations should ensure women’s participation during all stages of peace processes, especially post-conflict planning and peace building, by enhancing female engagement in decision making from the early stages of the recovery process. Similarly, CEDAW’s General Recommendation 23 states that women must participate in the formulation and implementation of government policy, as well as hold public office. Following the “Declaration of liberation,” Libya is currently a post-conflict state and thus falls within the scope of SCR 1889. Furthermore, the constitution-drafting process appears to be the very type of early-stage planning in which women must be involved. A constitution is a primary source of policy and law; women must be included in its drafting process.
The second way CEDAW and the Security Council resolutions pertain to the Libyan constitution-drafting process is that they call for heightened gender perspectives in decision making processes. The special needs of women are better protected by female point of view in the lawmaking process. Thus, special measures should be taken to ensure women’s political participation. Both UNSC Resolution 1325 and CEDAW directly call for increased gender perspective; however, the latter legal entity goes one step further. In its fifth General Recommendation, CEDAW emphasizes the use of temporary special measures, such as preferential treatment or quota systems, to ensure the inclusion of a critical mass of women in governing bodies. The 23rd General Recommendation further explains that this mere removal ofde jure barriers is necessary but not sufficient, and that states must also work to address cultural barriers and stereotypes, facilitate the recruitment of female candidates, provide financial assistance and training and amend electoral procedures to ensure critical mass.
The optimal means to ensure that a gender perspective manifests in Libyan society is to entrench these values into the constitution. Such steps are legally stipulated by international law, and the appropriate means to attain gender equality, according to CEDAW, are expected to be taken without delay. To reach gender equality, CEDAW recommends temporary measures that per se favor women. A state’s social and cultural practices that are contrary to the equality goal are not accepted reasons to violate its obligations. Libya is no exception. It is the responsibility of the State to provide avenues for women to ascend to office, by reserving public office opportunities for women, as well as actively working to overcome the stigma that may preclude women from becoming candidates.
Democratic practice is also subject to international law on gender equality. In other words, a lack of female representation is not permitted merely as a failure of the population to vote for female candidates. CEDAW recommends that states use electoral instruments to ensure that at least a minimum number of women – that goes beyond mere “tokenism” and is estimated to be between 30 and 35 percent of legislative seats – in order to receive a “critical mass.”
Libya admittedly took steps towards increasing female representation by using a quota (ten percent of seats) in the first democratic election after the fall of the Gaddafi regime. However, this figure is well short of the thirty to thirty-five percent that CEDAW’s General Recommendation 23 provides is necessary for adequate representation. Furthermore, the ten percent quota utilized in Libya is ambiguous and may actually serve as a ceiling for female representation. Finally, the quota only applies to a narrow category of politicians that make up a small proportion of the government assembly.
With these concerns in mind, GJC welcomes UNMSIL’s announcement, but seeks to ensure that Libya goes further to guarantee women the political power and voice they are due according to international law. The new Libyan Constitution is an opportunity to realize gender equality and protect women’s international human rights, as enumerated by the UNSC and CEDAW. Not only do women deserve a seat at the table in drafting Libya’s constitution, as UNMSIL notes, from their participation in the February Revolution, but also as a matter of international law. All efforts must be taken to ensure women’s participation in the constitution-drafting process, and in electoral politics. Such measures will enable the country’s further democratization as it develops in the wake of the revolution.