Tripoli — A draft law being prepared in Libya to bar Gaddafi-era officials from holding public office and senior posts should exclude only those who held carefully defined senior positions, or who are alleged to have committed specific acts. Anyone accused of past wrongdoing should be allowed a fair chance to rebut the charges.
"After decades of dictatorship and corruption, Libyans understandably want to ensure that their new leaders do not include people who were involved in past abuse," said Fred Abrahams, special adviser at Human Rights Watch. "But bans on public office and senior positions should be based on provable misdeeds, and not a general association with the former regime."
A committee in Libya's parliament, the General National Congress (GNC), is expected to present a draft of what is being termed the "political isolation law" on January 23, 2013. Public pressure has mounted in recent weeks for parliament to exclude people whom many Libyans see as unwanted remnants of the Gaddafi era.
Human Rights Watch urged the committee drafting the law and the congress to take due time when considering this important piece of legislation, and to consider how it would fit into and complement Libya's larger process of transitional justice.
"This law requires time and careful consideration to make sure it respects human rights and serves Libya's need for justice after dictatorship," Abrahams said.
Any new law should define explicitly which positions under Gaddafi and which past acts warrant exclusion from public office, and for how long, Human Rights Watch said. Vague terminology, if used, will open the door to using the law for partisan political purposes.
It is also critically important for the new law to provide for a fair and transparent process, Human Rights Watch said. Anyone accused of past human rights abuses or misconduct should be able to see the evidence against them and have a fair opportunity to refute the charges.
Those who face accusations under the law should have the right to challenge a ban in a timely manner before an independent body, Human Rights Watch said.
If the new "political isolation law" fails to meet these standards, it would violate Libya's constitutional law. Article 6 of Libya's Constituent Covenant affords all Libyans "equal civil and political rights" and "the same opportunity" without distinction on grounds of "religion, belief, language, wealth, sex, kinship, political opinions or social status; or on tribal, regional or personal association."
It remains unclear how the draft law will address the already existing Integrity and Patriotism Commission, formed in April 2012, which is charged with vetting all senior government and security officials, members of congress, and the heads of trade unions, universities and other public institutions. Human Rights Watch has previously criticized the commission's vague and overly broad criteria.
The Integrity and Patriotism Commission has already barred dozens of people from various posts, including 11 elected members of the General National Congress, although some of these people are challenging the decision in court.
If the Integrity and Patriotism Commission continues to exist, congress should amend its regulations with narrower and more precise criteria on which to base prohibitions, Human Rights Watch said.
International law requires Libya to allow all citizens the right to hold political office without discrimination based on political associations. As a state party to the International Covenant on Civil and Political Rights (ICCPR), Libya is required to allow its citizens equal opportunity to participate in political life, without discrimination or "unreasonable restrictions." The African Charter on Human and Peoples' Rights, also ratified by Libya, requires states to ensure that every citizen has the right to participate freely in the government of their country.
Countries such as Libya, that suffered under dictatorship and are struggling to build democratic societies, have a legitimate concern that these efforts could be undermined by people whose past conduct reflected the criminal, repressive, or corrupt character of those dictatorships, Human Rights Watch said. There is, therefore, some justification for restricting the political rights of certain people associated with the previous dictatorship at the very beginning of the transition process.
But the process should reflect respect for individual rights enshrined in Libyan and international law. Restrictions should be based on clear criteria set out in law and be proportionate, rather than a general prohibition on all political activity.
"Libyan legislators have an important opportunity to ensure that any exclusions are on a case by case basis, using explicit criteria and through a fair process," Abrahams said. "The victims of past abuses should be honored with new laws that fully adhere to human rights."