These recommendations were accepted by state representatives but have failed to be realised in the February 2016 constitutional draft. Rather than ensuring Libya’s international human rights obligations are guaranteed within the domestic legal framework many provisions provide lesser protections than minimum standards for fundamental rights. This is particularly worrying as the constitution also attempts to establish its contents as having supremacy to Libya’s international legal obligations.
The February 2016 constitutional draft lacks comprehensive protection for equality and non-discrimination. Whilst the February 2016 draft provides general statements of equality in articles 9 and 21, a more elaborative statement is necessary to protect groups at risk of having their fundamental rights and freedoms restricted. There is currently no provision guaranteeing the right to religious freedom or express provisions to protect ethnic, political, cultural and religious minorities or persons with disabilities from discrimination. Such provisions are vital to protect the identities and dignity of all people in Libya.
Further, despite the February 2016 constitutional draft’s recognition that men and women should be treated equally under law, it authorises and enshrines gender discrimination in other provisions. For example, the right of all Libyan parents to confer their nationality to their children is denied to Libyan women with foreign spouses, whose children are explicitly disqualified from being entitled to citizenship and political rights. Libyan men, however, are free to marry foreign nationals without such repercussions.
The process for naturalisation remains arduously lengthy and subject to arbitrary conditions such as “national interest, demographics, and the ease of integration into Libyan society”. In addition, the possible revocation of citizenship for 10 years following its acquisition, creates a 25 year period of uncertainty for those seeking it. Difficulty obtaining citizenship would continue to have severe repercussions for many of minority communities within Libya many of whom have historically been prevented from obtaining citizenship rights and have therefore faced difficulty accessing fundamental human rights such as health care, education and political participation.