originally published in the Libya Herald on September 12 2015: https://www.libyaherald.com/2015/09/12/op-ed-rebuilding-public-trust-in-the-libyan-government-through-financial-disclosure/
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Op-Ed: Rebuilding public trust in the Libyan government through financial disclosure
By Ann Marlowe.
12 September 2015:
The recent nomination of twelve names for two of the three top positions in Libya’s hoped–for unity government by the House of Representatives (HoR) will be debated on many grounds, but regardless of opinions on the candidates, or the selection process, this moment provides an opportunity for Libyans to rebuild trust in government. So does the upcoming end of the mandate of the internationally-recognised governing body, the HoR, which may lead to new elections.
One relatively quick fix that would have enormous positive effects would be introducing financial disclosure requirements for candidates for cabinet positions and for the legislature – including the twelve names from the HoR. Another related measure is requiring candidates who are currently civil servants or diplomats to pass muster under existing Libyan laws governing state officials.
Much recent political discussion in Libya has circled around the issue of legitimacy of political institutions (the rival HoR and General National Congress in Tripoli) and of past elections. To a lesser extent, there has been a dialogue about the legitimacy of political candidates, mainly around the issue of the 2013 Political Isolation Law. But issues that developed democracies take for granted, such as assuring the probity and financial honesty of political candidates, have been hardly addressed in Libya.
One unfortunate reaction to the Qaddafi era has been that anyone who was an opponent of the regime, even anyone who was jailed by the regime, now has built-in credibility. This neglects the fact that Qaddafi jailed many common criminals who would also have been convicted and jailed by American or English courts. The result has been that ex-cons have served, and still serve, in very high positions in Libya, with predictably bad results. This in turn has led to decreasing trust in government and the political process, resulting in the low turnout of around 18 percent in the June 2014 HoR elections.
Moving Libya from a low to a high trust society is a generational challenge. Establishing a culture of democracy, as well as a nominally democratic political system, is also the work of decades.
But increasing trust in government – and turnout in the next parliamentary elections – can be jump-started by some methods that have worked in other countries, including countries with difficult histories.
Requiring all candidates for the unity government to fill out a public financial disclosure is as new to Libya as free and fair elections, but a precedent for such a disclosure law is found in Libyan Law 3 of 1970, which requires a financial declaration by civil servants and diplomats. Article One of Law 3 states:
The holders of the public offices, judiciary and public prosecution, diplomatic corps and consulates members, officers of the armed forces and police, titled official of the government and local administration or public associations and corporations, and whoever is designated, as permanent or temporary, paid or unpaid, to public service or assumes public prosecution status, shall submit within forty five days from the date of his nomination or designation or gaining public service, a financial disclosure for himself, spouse and minor children. (http://www.aladel.gov.ly/main/modules/sections/item.php?itemid=162)
Law No 3/1970, of course, dates from very early in the Qaddafi period when corruption was not a hallmark of government.
The law could be extended from office-holders to office-seekers. To adopt to Libyan culture, disclosures could be posted on a Facebook page.
The US requires very extensive disclosure for Congressional candidates and even this has not completely kept the crooks out. But the burden of disclosure and resulting media scrutiny tends to discourage egregiously dishonest potential candidates. It would have the same effect in Libya.
The candidates would have to list all assets, companies, shareholdings, directorships and other business involvements that they have. And those who win office would have to do what American officials do: put their financial holdings in a blind trust while they are in power, and make an annual declaration of assets so it could be seen whether they were enriching themselves in office. Libyan law currently mandates that holders of high office declare their assets when entering and when leaving office.
The second measure, the requirement that all candidates be in compliance with existing Libyan laws, would have the benefit of increasing respect for the rule of law and knowledge of Libyan laws as well as eliminating those candidates who have violated the laws. It is often forgotten that Articles 77 and 78 of the Civil Service Act prohibit Libyan civil servants – including diplomats– from “engagement in business of any kind” or corporate board memberships, unless they are serving as representatives of the body they work for (e.g. an official of the LIA serving on a board on an LIA subsidiary).
This brings up another important point. Almost every Libyan says he or she wants “the rule of law”, but many Libyans are neither aware of the country’s laws nor aware of the many violations of these laws by recent political actors from all parts of the spectrum.
Anyone can look up most of Libya’s laws on this website: www.aladel.gov.ly/home/.
Libya’s economic crime laws are full of repetitions and the punishments are often absurdly weak. But they are a beginning, and they are parallel to laws in other Arab countries and to Continental law. (And no, the source of these laws is not the sharia.) Enforcing these laws would have a huge effect in dismantling a culture of impunity.
Worldwide, there is plenty of precedent for financial disclosure both by candidates for office and by office-holders..
Most countries require financial disclosure for high officials:
A more extensive World Bank survey of 176 jurisdictions completed in 2012 shows that 137 (78 percent) have financial disclosure systems. 93 percent of those countries require disclosure for cabinet members, 91 percent for members of parliament and 62 percent for high-ranking prosecutors. However, only 43 percent of countries provide the pubic with open access to public officials’ financial disclosures.
Even developing countries make this information available online:
Argentina, Brazil, Chile, Guatemala, Mexico, Panama and Paraguay have been at the forefront of efforts in Latin America to design and create electronic platforms that publish information about government officials’ personal assets (and also about procurement), according to a 2012 report by FUNDAR.
Libya has, perhaps, a second chance at a better future this autumn. Increasing the hurdles for political candidates, and increasing respect for the rule of law, can only help in the road ahead. The precedent is in Libyan laws.
The Libyan Civil Service Law
Article (77)
Combination of Employment with other Jobs
1 – A civil servant may not combine two jobs himself or through intermediation if such job may harm the performance of the duties of his profession or it is in contrary to its requirements.
2 – – A civil servant may not perform works for others , paid with salary or requital , even during the leaves or after the official work hours the unless a written permission is obtained from the competent Minister and in accordance with the cases and conditions prescribed by the Executive Regulation . The Executive Regulation shall regulate the cases in which the scientific and professional qualifications holders are permitted to perfume these professions after the official work hours.
3- The civil servant may perform , and paid with salary or requital , the of acts curatorship or guardianship or judicial assistance if the person who is under the civil servant’s guardianship or curatorship or the absent person or the person for whom the judicial assistant has been designated for, has a kinship or family relationship as to fourth degree; and he may hold in escrow the assets in which he or one of his relatives or in- laws as to fourth degree, is a partner or an interested party; and also if he is a holder in escrow in accordance with a law , provided that he shall report to the administrative units he works for.
Article (78)
Prohibitions
The civil servant himself or through intermediation is prohibited from conducting any of the prohibited and banned activities prescribed by the valid laws or regulations or statues and particularly prohibited from:
A) Buying real estate or movables which the administrative or judicial authorities put up for sale at the entity where he works.
B) Engagement in businesses of any kind, or having interest in bids or auctions or contracting, or tenders related to his work.
C) Act to get in on the establishment of companies or to accept the membership of its board or any position in the company except when he acts as a delegate of one of the administrative unites or obtains the license for the membership or work from the competent body.
D) Renting, with an intention to exploit in the entity where he works, real estate or movables if such exploitation is related to his work.
END
Ann Marlowe is a writer and visiting fellow at the Hudson Institute and a consultant to a branch of the Libyan state that is neutral in the current conflict.