(The Commentaries and text are drawn from www.somalilandlaw.com of Dr. Ibrahim Hashi)
THE 1960 ACT OF UNION – An early lesson for Somaliland
LAW OF UNION BETWEEN SOMALILAND AND SOMALIA: Law No: 1 of 1960 – 27 JUNE 1960
Prior to attaining independence on 26 June 1960, Somaliland was very much interested in pursuing the dream of a Greater Somali State encompassing all the territories inhabited by people of Somali ethnic origin. After discussions in 1960, Representatives of Somaliland and Somalia agreed that an Act of Union will be signed by both states on independence and that this document will be in the nature of an international agreement between the two states. The Legislative Assembly of the independent STATE OF SOMALILAND therefore signed the Union of Somaliland and Somalia Law (set out below) on 27 June 1960. The Law was immediately effective in Somaliland, but as set out in the recital, it was supposed to be signed by the representatives of Somalia, as well. In fact, this never happened. Instead the Legislative Assembly of the Somalia Trust Territory met on 30 June 1960 and decided to approve “in principle” an Act of Union (Atto di Unioni), which was significantly different from this Act of Union. According to Contini, (The Somali Republic: An Experiment in Legal Integration, Frank Cass & Co. Lt 1969: London), the Assembly requested the “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”.
What happened instead was that on the morning 1st July 1960, the members of the Somaliland Legislative and those of the Somalia Legislative met in a joint session and the Constitution which was drafted in Somalia was accepted on the basis of an acclamation, with no discussion and a Provisional President was elected. This step was taken whilst relying on an additional clause inserted on 18 June 1960 in the draft Constitution to the effect that
“immediately after the 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…”
Presaging what was to happen again and again in the relationship between Somaliland and Somalia, the newly elected provisional President than issued on the same day a decree law aiming to formalise the union, but even that was never converted to Law as presidential decree laws always required to be presented to the National Assembly for conversion into Law under Article 63(3) of the new Constitution within five days of their publication, otherwise they “shall cease to have effect ab initio” i.e from their date of issue. In any case, the reality was that there were two different versions of the same “law”.
Thus, although the clear plan and agreement between Somaliland and Somalia was that the same Act of Union will be signed by both states, the legal formalities, as agreed, were not completed properly and, according to Contini,
“ the Union of Somaliland and Somalia Law did not have any legal validity in the South (Somalia) and the approval “in principle” of the Atto di Unione was not sufficient to make it legally binding in that territory.”
Cotran [(1968)12 ICLQ 1010] comments that the legal validity of the legislative instruments establishing the union were “questionable” and he summarises the reasons as follows:
“a) The Union of Somaliland and Somalia Law, and the Somalia Act of Union were both drafted in the form of bilateral agreements, but neither of them was signed by the representatives of the two territories.
b) The Union of Somaliland and Somalia Law purported to derogate in some respects from the Constitution of the Somali Republic.
c) The Somalia Act of Union was approved “in principle” but never enacted into law.
d) The decree law of July 1, 1960, did not come into effect since it was not converted into law in accordance with the Constitution.”
It was only on 18 January 1961 when a new Act of Union was put to the National Assembly, and was promulgated on 31 January 1961. This Law entitled the “Act of Union” was made retrospective even though there is a generally accepted principle that laws should not be retroactive. The new Act of Union was different from the one signed by the Somaliland Legislative and re-produced below. The Law of Union passed by the Somaliland Legislature contained some guarantees about the laws applicable in Somaliland, the rights of Somaliland serving officers, which should not become less favourable than was applicable to them at the time of the union, the establishment of a special Commission on laws and its composition etc. These were, in hindsight, the only rather half hearted, demands that the Somaliland made at the time of the union. But the 1961 retrospective Act was very clear in repealing anything which was inconsistent with the 1960 Somalia Constitution, and specifically repealed “the provisions of the Union of Somaliland and Somalia (Law No.1 of 1960)” except for Article 11(4) which, as you can see below relates to agreements entered into by the independent Republic of Somaliland (see Article 9(2) of the 1961 Act of Union).
This was a clear indication that Somaliland was an independent state with a Government of its own, however short that period was, and under Article 11(4) of the 1961 Act of Union, it was confirmed that
“all rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia … shall be deemed to have been transferred to and accepted by the Somali Republic upon its establishment”.
What this confirms again is that there was a union of two states, but more importantly, that Somaliland was an independent state before the union and has entered into treaties with Great Britain during that period. This is of considerable legal significance because so many people, specially in Africa, still think of Somaliland as a region seceding from the now defunct Somali (Democratic) Republic rather than a former independent state withdrawing, albeit unilaterally, from a union of two states – a position which is currently unique in Africa as there is no other territory or even region in a similar position.
Finally, no one is contesting that the independent State of Somaliland and its people sought to unite with Somalia on 1 July 1960, and Somalilanders are still counting the cost of that precipitate decision, But the issue is that the way the legal formalities of this voluntary union were dealt with and how the Constitution was drafted for Somalia (and not Somaliland) were early harbingers of the tragedy that was to follow, because later even the Act of Union formula of a Republic Legislative consisting of the Somaliland Legislative Assembly (of 33) and Somalia’s Legislative Assembly (of 90) was jettisoned a few years later.
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LAW OF UNION BETWEEN SOMALILAND AND SOMALIA: Law No: 1 of 1960 – Passed by the Independent State of Somaliland Legislative on 27 JUNE 1960
Whereas the State of Somaliland achieved independence and ceased to be under British protection or within the jurisdiction and sovereignty of Her Britannic Majesty on the 26th day of June, 1960, being Muharram 1st 1379, and Whereas the State of Somalia achieved its independence and ceased to have the status of a Trust Territory of the United Nations Organisation administered by the Republic of Italy on the 1st day of July, 1960, being Muharram 6th 1379, and Whereas it is the will of the peoples of Somaliland and Somalia that their States shall unite and shall forever be united in the Somali Republic.
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 of Union on behalf of our respective States and peoples do hereby solemnly and in the name of God the Compassionate and Merciful agree as follows:
- (a) The State of Somaliland and the State of Somalia do hereby 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 Mogadishu.
- Subject to the express provisions of this Act of Union the Union hereby constituted shall be upon the following conditions:
(1) That the component administrative units of the government of the Somali Republic until more suitable administrative arrangements are made, shall be firstly the region comprising the territories contained in the boundaries of the presently existing State of Somaliland
[hereinafter referred to as the Northern Region]
and secondly those presently existing territories which comprise the six Regions of Mijertein, Mudugh, Hiran, Benadir, Upper Juba and Lower Juba all in Somalia (hereinafter collectively referred to as the second-named Regions).
(2) That the existing laws presently in force in the Northern Region and in the second-named Regions respectively shall remain in full force and effect within the respective territories where the same presently apply and shall not have force or effect beyond those respective territories where the same presently apply.
(3) That all persons now serving the Somaliland Government in the Northern Region and the Government of Somalia in the second-named Regions respectively shall continue to serve the Government of the Somali Republic upon terms not less favourable than those at present applicable to them.
(4) That the Courts as presently constituted in the aforesaid Northern Region and the aforesaid second-named Regions shall continue to exercise within their respective territories the jurisdiction which is conferred upon them by presently existing law and shall be Courts of the Somali nation;
(5) That all rights and obligations vested or accruing, whether public or private (including any status of legal personality acquired under law by corporate or non-corporate bodies) shall continue to subsist in accordance with sub-clause (2) hereof, be recognised and enforced by the Courts of the Somali Republic referred to in sub-clause (4) hereof and by the Government in the Somali Republic.
(6) That in the Somali Republic the national languages of the Republic shall be as to the spoken tongue Somali, and as to the written language Arabic, English and Italian, which shall have equal status.
- (1) All persons who upon the date of this Union possess the citizenship of Somaliland and Somalia respectively shall by this Union now become citizens of the Somali Republic.
(2) All persons who hereafter would, but for this Union, have become citizens of Somaliland or Somalia respectively under the law of either of the two uniting States as presently subsisting, shall hereafter become citizens of the Somali Republic.
- The Head of State of the Somali Republic shall be the President of the Republic chosen in accordance with the provisions of the Constitution referred to in Article 7 hereof.
- The Executive Authority of the Somali Republic shall be vested in the Council of Ministers appointed in accordance with the provisions of the Constitution referred to in Article 7 hereof and shall be exercised as therein provided.
- The legislative power of the Somali Republic shall be vested in the National Assembly constituted in accordance with the provisions of the Constitution referred to in Article 7 hereof and shall be exercised as therein provided.
- The Constitution of the Somali Republic shall be the Constitution of the State of Somalia with such adaptations as may be necessary to bring it into conformity with this Act of Union but notwithstanding the provisions thereof relating to amendment, no amendment of that Constitution shall derogate from the conditions of Union set forth in clause 2 hereof unless made in accordance with the procedure and provisions set forth in clause 10 hereof.
- (1) Upon this Act being made the presently subsisting Legislative Assemblies of Somaliland and Somalia respectively shall cease as such to subsist: but the existing elected members of the said Legislative Assemblies shall constitute the first National Assembly of the Somali Republic. Immediately upon the National Assembly of the Somali Republic being constituted under these provisions, the members thereof shall each before the person presiding over the National Assembly make an oath of allegiance to the Somali Republic.
(2) The existing President or Vice-President of the Legislative
Assembly of Somalia shall preside over the National Assembly of the Somali Republic for the purpose of taking the oaths of allegiance in accordance with sub-clause (1) hereof and for the purpose of electing the first President of the National Assembly only.
(3) The members of the Council of Ministers after being appointed in accordance with the Constitution shall each make an oath of allegiance to the Somali Republic before the President of the National Assembly.
- (1) Notwithstanding anything in clause 2 hereof, the citizens of the Somali Republic shall have the right freely to move for lawful purposes throughout the territory of the Republic subject to the provisions of any law relating to public order or human or animal health.
(2) Notwithstanding anything in clause 2 hereof there shall be no customs, excise or other tax imposed upon the movement of goods (including animals) between any parts of the territory of the Somali Republic, providing such goods originate from the Region from which they are proceeding.
(3) Until unification of customs tariffs is achieved, goods imported from foreign countries, land moving from the Northern Region to the second-named Regions and vice versa shall be subject to the customs laws at present in force: in the Northern Region and the second-named Regions.
- (1) There shall he established a Special Commission the members of which shall be persons who were immediately prior to this Act of Union either members of the Legislative Assembly of Somalia or members of the Legislative Assembly of Somaliland together with a Chairmen being a member of the National Assembly a pointed by the members of the Commission.
(2) The members of the Special Commission (other than the Chairman) shall be appointed by the President of the Somali Republic acting on the advice of the Council of Ministers and shall consist of an equal number of former members of the Legislative Assembly of Somalia and former members of the legislative Assembly of Somaliland.
(3) The Special Commission shall examine into and make recommendations (which in the event of the Commission not being unanimous shall be the recommendations of a majority of its members to which a minority report shall be attached) as to the provisions to be made from time to time by law for the purpose of establishing uniformity between the laws, institutions, public services and social services presently existing in the regions referred to in clause 2 (1) hereof.
(4) The Special Commission shall for the aforesaid purposes be empowered to establish sub-commissions or committees, the members whereof may include other persons, and to engage or call for assistance from any person by way of advice or otherwise.
(5) A Special Commission shall from time to time report to the Council of Ministers as to its recommendations under sub-clause (3) of this Clause and the Council of Ministers shall thereupon with all reasonable dispatch lay such report before the National Assembly together with the proposed legislation to be made to give effect thereto.
(6) The National Assembly shall thereupon decide by a majority of the members thereof present and voting upon such proposed legislation whether the same shall be enacted.
(7) Upon the National Assembly so deciding then the President shall assent to such legislation and upon the same coming into operation any condition set forth in clause 2 hereof shall so far as it is inconsistent with such legislation be abrogated.
(8) The Special Commission may with the approval of the Council of Ministers make rules regulating its procedure and
providing for the duration of the appointments of its members, the remuneration of any persons whose participation or assistance is called for under sub-clause (3) hereof, the filling of vacancies in membership and all other matters as may be required for the performance of the functions conferred upon the Special Commission by this clause: Provided that if the Special Commission fails to make rules under this sub-clause in accordance with a request made to it by the Council of Ministers, the Council of Ministers may make the said rules.
(9) Any rules made under sub-clause (8) may be added to, amended or revoked in the same manner.
- (1) Any property (including any rights arising from contracts or otherwise) that is immediately before this Act of Union vested in the Government of Somaliland or in the State of Somalia shall upon this Act being made vest in the Somali Republic or In any such person or authority on behalf of the Somali Republic as the Council of Ministers may direct.
(2) Any liabilities or obligation (whether arising from contract or otherwise) incurred by the Government of Somaliland or by the State of Somalia and subsisting immediately before this Act of Union shall upon this Act of Union being made be a liability or obligation of the Somali Republic or of such person or authority on behalf of the Somali Republic as the Council of Ministers may direct.
(3) For the purposes of the preceding sub-clause, any property which immediately before the making of this Act of Union was vested in, or any liability or obligation which at that time had been incurred by, any person or authority on behalf of the Government of Somaliland the State of Somalia shall be deemed to be property vested in or a liability or obligation incurred by the respective Government or State.
(4) Without derogation from the foregoing provisions of this Clause the rights and obligations arising from agreements entered into – between the Government of Somaliland and the Government of the United Kingdom of Great Britain and Northern Ireland and between the Government of Somalia and the Government of Italy and other States and International Organisations which are set out in the Schedule (2) to this Act shall be binding upon the Somali Republic.
- (1) For the time being the provision subsisting immediately before the making of this Act of Union for the expenditure of public monies of the Somali Republic hereby constituted within and upon the Northern Region and the second-named Regions shall as far as practicable continue to the intent that those monies which have been authorised to be expended within and upon the respective Northern Region and second- named Regions shall continue to be expended upon the public service and upon the development and welfare and in the service of the said Northern Region and the second- named Regions and the inhabitants thereof respectively.
(2) For the time being the presently subsisting provision for the expenditure of public monies (including such monies as may be provided by way of assistance from foreign States) upon the development and welfare of the aforesaid Northern Region and second-named Regions and the inhabitants thereof respectively shall as far as practicable continue to the intent that those schemes of development and welfare which are now current shall be completed and that those schemes of development and welfare which have been planned shall be proceeded with within the respective Northern Region and second-named Regions hereinbefore referred to and for the benefit of their respective inhabitants.
(3) The Supreme Court of the Somali Republic shall have appellate jurisdiction in relation to decisions of the Courts now constituted and which will continue to subsist in the aforesaid Northern Region.
ANIIS ABDILLAHI ESSA
SOMALILAND ADVOCACY GROUP