The con­sti­tu­tion­al­ity of the Act was not en­tirely clear, as no for­mal Act of Union had been signed in time.

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: trunji@ya­hoo.com