The constitutionality of the Act was not entirely clear, as no formal Act of Union had been signed in time.
by Mohamed I. Trunji
Tuesday, June 23, 2020
On June 26, 1960, the former British Protectorate of Somaliland became independent. But perhaps Somaliland will go down in history as a country with the shortest spell of independence for, on July 1, five days later united with Somalia, former United Nations Trust territory under Italian administration.
The purpose of this article is to outline some of the problems that caused the delay to produce in time a single text of Act of Union. Sixty years have now elapsed since the union was proclaimed, and yet the debate on its legality shows no sign of abating and remains a highly divisive subject.
When it was decided to unite with Somaliland Protectorate, the government and the National Legislative Assembly in the Trust Territory were fully busy with urgent matters requiring completion before July 1960. The proceedings of the Political Committee in charge of drafting the Constitution, the work of the Constituent Assembly, not yet started, were some of the matters that absorbed the attention of the political leaders in Mogadiscio. In addition to this, a plan for the elaborate ceremonies celebrating independence also required a considerable amount of time and attention.
On April 6, 1960 the Somaliland Legislative Council passed a resolution calling for ‘independence and unification with Somalia‘on July 1, 1960, the same date when Somalia will attain its full independence. However, for some unspecified reasons, the date was subsequently advanced to June 26, five days before the independence of the Trust Territory. (Report of the Somaliland Protectorate Constitutional Conference, held in London May, 1960)
The Union of Somaliland and Somalia Law
On April 16, 1960 a decision was reached at a conference in Mogadiscio between Northerners and Southerners Somali leaders. The conference reached a decision calling for the two territories to be united on July 1, 1960. Having reached agreement at the Mogadiscio conference on the broad principles of the union, it was necessary to spell out its legal foundations. It was then planned that, following the proclamation of the independence of the Trust Territory, an Act of Union would be signed by the representatives of the independent States of Somaliland and Somalia. The instrument would assume the nature of an international agreement and would be legally binding on both States. To implement this plan, on June 18, 1960, during the last stage of the deliberations of the Constituent Assembly, the President of the Political Committee, Hon. Aden Abdulla, proposed the addition of the following clause in the Constitution: ‘Immediately after signing the Act of Union of the two Somali territories (Somalia and Somaliland) the new National Assembly shall elect …a provisional President of the Republic (40th meeting of the Constituent Assembly on June 18, 1960 (quoted by G.A. Castanzo in “Problemi costituzionali della Somalia nella preparazione all’indipendenza 1957-1960”, 1962) This proposal was accepted and incorporated in the transitional and final provisions of the Constitution. (Article 1, paragraph 2 of the transitional and final provisions of 1960 constitution). What actually happened, however, differed from the plan and the above-mentioned provision, as at their meeting on the 27 June 1960, day after the independence, the Somaliland Legislative Assembly passed “The Union of Somaliland and Somalia Law” (Law N. 1 of 1960, supplement No. 2 to the Somaliland Gazette, Vol. 1 No. 3, dated 5th July 1960) incorporating the proposed Act of Union previously sent to Mogadiscio weeks before.
The preamble contained the following wording: “NOW, we the signatories hereof being the duly authorized representatives of the peoples of Somaliland and Somalia and having vested in us the power to make and enter into this Law on behalf of our respective States and peoples, do hereby solemnly and in the name of God the compassionate and Merciful agree as follows”: Section 1 (a) “The State of Somaliland and the State of Somalia do herby unite and shall forever remain united in a new, independent, democratic, unitary Republic the name whereof shall be the SOMALI REPUBLIC. (b) The capital of the Somali Republic shall be Mogadiscio.
The main feature of the law were the ‘conditions of union’ including citizenship, the head of State, executive authority, legislative power, the application of the constitution, succession to rights and liabilities and other matters.
On June 30 the Legislative Assembly of the Trust territory adopted an Atto di Unione (Act of Union) “in principle” and requested the government of Somalia to establish with the government of Somaliland a definitive single text of the Act of Union, to be submitted to the National Assembly for approval. However, there was no time for the two governments to meet and agree on definitive single text as the Assembly had requested.
The Union Proclaimed
At midnight of June 30, the President of the National Assembly, Hon. Aden Abdulla, in his capacity as the Provisional President of the Republic, proclaimed the independence of the State of Somalia. During the same night he promulgated the Constitution, which came into force immediately.
In the morning of July 1, the members of the Legislative Assemblies of Somaliland and Somalia met in joint session as the first National Assembly. The President of the Assembly proclaimed the union and the members sealed it by standing ovation. It seemed that the constitutionality of the Act was not entirely clear, as no formal Act of Union had been signed as required by the Constitution. (Article 1, paragraph 2 of the transitional and final provisions).. “Neither side seemed likely to jeopardize the de facto union by querying its legality at the present time”, commented the British Ambassador in Mogadiscio.( TNA FO 371/146955 dated August 5, 1960) In the same day, the Assembly elected Aden Abdulla as Provisional President of the Republic.
Paolo Contini, an American legal expert, familiar with the Somali Constitution law, wrote that: “there was no doubt that on the first of July, a full and lawful union was formed by the will of the two peoples of the two territories through their elective representatives. However, the legal formulation had not been completed in time. The Union of Somaliland and Somalia Law did not have any legal validity in the South and the approval ‘in principle’ of the Atto di Unione by the Legislative Assembly of Somalia was not sufficient to make legally binding in that territory” (Contini, 1969).
In a last minute attempt to formulize the union on July 1, the Provisional President of the Republic signed a decree-law with a much shorter than the Atto di Unione. Whoever, this decree-law was never presented to the National Assembly for conversion into law, as provided in article 63 of the Constitution, and therefore it never came into force
The matter was clarified seven months later by the adoption of a new Act of Union approved by the National Assembly by acclamation with retroactive effect as from July 1, 1960 for the whole territory of the Republic (Act of Union, Law No. 5 of January 31, 1961)
Mohamed I. Trunji
E-mail: [email protected]