The purpose of this note is to outline some of the legal problems that have arisen as a result of the formation of one State from two territories previously administered by two different powers and to give some description of the measures that have so far been taken to unify the institutions of the new Republic.
By Eugene Cotran[1]
On June 26, 1960, the former British Protectorate of Somaliland became an independent State outside the Commonwealth. But perhaps Somaliland will go down in history as the country with the shortest spell of independence, for on July 1, 1960, only five days later, it united with neighboring Somalia, formerly a United Nations Trust territory under Italian administration, to form a single State, the Somali Republic.[2]
The purpose of this note is to outline some of the problems that have arisen as a result of the formation of one State from two territories previously administered by two different powers and to give some description of the measures that have so far been taken to unify the institutions of the new Republic.
I. Formation of the union
1. Instruments setting up the republic
The legislative instruments setting up the union between Somaliland and Somalia were at first very complicated and confused, and it was not until some six months after the new State had been formed that the position was clarified by the introduction of an Act of Union, which had a retroactive effect as from July 1, 1960.
Somaliland became independent on June 26, 1960, by virtue of the Somaliland Order in Council, 1960,[3] which contained in an annex the Constitution of Somaliland. On June 27, 1960, the Legislative Assembly of Somaliland passed the Union of Somaliland and Somalia Law, which provided in Article 1 (a) that
“The State of Somaliland and the State of Somalia do hereby unite and shall forever remain united in a new, independent, democratic, unitary republic the name whereof shall be the Somali Republic.”
With regard to Somalia, the Constituent Assembly, on June 21, 1960, adopted a Constitution which came into force on July 1, 1960, as the Constitution of the Somali Republic. On June 30, 1960, an Act of Union was adopted “in principle” by the Assembly, Article 1 (1) of which is almost identical with Article 1 (a) of the Union of Somaliland and Somalia Law quoted above.
On July 1, 1960, the members of the Legislative Assemblies of Somaliland and Somalia met in a joint session as the first National Assembly of the new Republic, whereupon the President of the National Assembly proclaimed the union between Somaliland and Somalia. The Assembly then elected the Provisional President of the Somali Republic in accordance with Article I (2) of the Transitional and Final Provisions of the Constitution.
On the same day, a decree law was issued by the Provisional President giving judicial effect to the union of Somaliland and Somalia. However, this decree-law was never converted into law in accordance with Article 63[4] of the Constitution and it therefore never came into force.
Whilst it is clear from the above account that a full union had in fact been effected by the will of the peoples of Somaliland and Somalia through their duly elected representatives and that such union was recognized by the international community,[5] yet the legal validity of the legislative instruments establishing the union were questionable because:
(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 Article 63 of the Constitution.
This uncertainty as to the precise legal effect of these legislative instruments led the Somali Government, in order to remove any doubt, to pass a new Act in accordance with Article 60 of the Constitution. This law, entitled the “Act of Union”[6] was adopted by the National Assembly by acclamation on January 18, 1961, and was promulgated on January 31, 1961. However, the Act is deemed to have come into operation on July 1, 1960 (Article 10).
The main sources of the new law are the Union of Somaliland and Somalia Law, the Somalia Act of Union, and the lapsed decree-law of July 1, 1960. It was considered unnecessary to include in the new Act any matter which was covered by the Constitution, such as provisions relating to the Head State and the organization of State and Government. The Act is thus a short one containing provisions regarding the conditions of a union not covered by the Constitution. The Act expressly provides for the supremacy of the Constitution by repealing all previous legislation inconsistent with it. Thus Article 9 provides:
“1. Any provisions of any law of Somaliland or Somalia, including the Somaliland Order in Council, 1960 (being the Constitution of Somaliland), which is inconsistent with the Constitution of the Somali Republic or this law is hereby repealed.
“2. The provisions of the Union of Somaliland and Somalia Law (No. 1 of 1960) are hereby repealed, except for Article 11 (4) thereof.”
The position has now therefore been clarified, and although it may still be necessary to examine the previous enactments for certain matters, the two important instruments setting up the union and the new Somali State are the Act of Union (deemed to have come into effect on July 1, 1960) and the Constitution of the Somali Republic of July 1, 1960
Article III (1) of the Transitional and Final Provisions of this Constitution provided that the Constitution was to be submitted to a popular referendum within one year. The result of the referendum, which was held on June 20, 1961, showed an overwhelming majority in favor of the Constitution.
2. Structure of State and Government
It is quite clear that the Somali Republic is a single State and not a union of States. It is a unitary republic and not a federation. Thus Article 1 (1) of the Constitution lays down:
“Somalia is an independent and fully sovereign State. It is a representative, democratic and unitary[7] republic. The Somali people is one and indivisible.”
Again, Article 1 (1) of the Act of Union provides:
“Somaliland and Somalia, being united, constitute under the Constitution the SOMALI REPUBLIC, which shall be an independent, democratic and unitary[8] republic.”
The Constitution provides for the legislative power to vest in a National Assembly elected by universal adult suffrage; for a non-executive President of the Republic, elected by the National Assembly, to act as Head of State for a term of six years; and for the executive power to vest in a Government composed of a Prime Minister and Ministers.
The Organization of Government Law[9] sets out the powers of the Prime Minister and the number and powers of Ministers. The Constitution also provides for the judicial power to vest in a judiciary which shall be independent of the executive and legislative powers (Articles 92 and 93).
The Somali Republic is now divided into eight Regions. There are two Regions in ex-Somaliland, Hargeisa and Burao, and six Regions in ex-Somalia, Benadir, Hirau, Upper Juba, Lower Juba, Migiurtinia and Mudugh. Each Region is divided into administrative Districts.
II. Succession to Rights and Obligations
The formation of the Somali Republic has raised a problem of what one might call a “triple State succession,” for it involved:
(a) The succession to independent Somaliland of the rights and obligations entered into on behalf of the Somaliland Protectorate by Her Majesty’s Government;
(b) the succession to the Somali Republic of the rights and obligations entered into on behalf of the Trust territory of Somalia by the Italian Government[10]; and
(c) the succession to the Somali Republic of the rights and obligations of the independent Government of Somaliland.
As regards (a)-the succession to Somaliland of rights and obligations of the U.K. – a distinction must be made between rights and obligations arising internally under the law of Somaliland, and those arising under international instruments with third States or organizations. The former, which includes such matters as contracts of service or for goods supplied, employment of personnel, and succession to property rights, is governed by sections 57 and 58 of the Constitution of Somaliland which provide:
“57. Any property (including any rights arising from contract or otherwise) that immediately before the commencement of this Constitution is vested in Her Britannic Majesty, or in some person or authority on behalf of Her Britannic Majesty, for the purposes of the Government of the Protectorate of Somaliland or is vested in that Government or in some person or authority on behalf of that Government shall, on the commencement of this Constitution, vest in the Council of Ministers, or in such person or authority on behalf of the Council of Ministers as the Council may, by order published in the Gazette, direct.
58. Any liability or obligation, whether arising from contract or otherwise, incurred by Her Britannic Majesty, or some person or authority on behalf of Her Britannic Majesty, for the purposes of the Government of the Protectorate of Somaliland or by that Government or by some person or authority on behalf of that Government and subsisting immediately before the commencement of this Constitution shall, on that commencement, be a liability or obligation of the Council of Ministers or of such person or authority on behalf of the Council of Ministers as the Council may, by order published in the Gazette, direct.”
Broadly speaking, therefore, it may be said that the independent Government of Somaliland succeeded to rights and obligations entered into by Her Majesty’s Government with third parties (not being States or international organizations) under the domestic law of Somaliland.
With respect to rights and obligations entered into by Her Majesty’s Government which arise from international instruments and agreements, there was no exchange of notes or other agreement between the United Kingdom and Somaliland Governments to the effect that such rights and obligations, should as from independence, devolve on the Government of Somaliland.[11] In the absence of such an agreement, therefore, the matter must be governed by the customary rules of international law relating to State succession.[12]
Turning to (b)-the succession to the Somali Republic of the rights and obligations of the Italian Government-there was an exchange of notes contained in a Treaty of Friendship entered on July 1, 1960, between the Governments of Italy and the Somali Republic (Trattato di amicizia fra l’Italia e la Somala e scambio di note, Mogadiscio 1 Luglio 1960) providing for:
(i) the succession to the Somali Government of all rights and obligations arising from international agreements entered into by the Italian Government prior to June 30, 1960, in its capacity as administering authority.
(ii) the termination, as from the date of independence, of all duties and responsibilities under multilateral treaties and conventions relating to humanitarian, social, sanitary, judicial, technical, and administrative matters, entered into by the Italian Government and extended to the Trust territory of Somalia. A list of these treaties and conventions is contained in the exchange of notes.
Finally, as regards (c) – the succession to the Somali Republic of the rights and obligations of independent Somaliland – the matter is governed by provisions contained in the Act of Union and in the Constitution of the Republic. Article 4 of the Act of Union provides:
“1. All rights lawfully vested in or obligations lawfully incurred by the independent[13] Governments of Somaliland and Somalia or by any person on their behalf, shall be deemed to have been transferred to and accepted by the Somali Republic upon the establishment of the Union.
2. Whenever such rights or obligations arise from any international agreement their acceptance by the Somali Republic shall be subject to Article 67 of the Constitution.”
As there was never an independent Government of Somalia, the effect of Article 4 is to make the Somali Republic the successor of the Government of Somaliland only, with respect to rights and obligations acquired by it during the five days prior to the union. This applies to rights and obligations arising from matters other than international agreements. With respect to rights and obligations arising from treaties, Article 4 (2) expressly lays down that their acceptance by the Somali Republic is subject to Article 67 of the Constitution which deals with the ratification of international treaties by the National Assembly. It is therefore clear that the Somali Republic regards itself as bound only by those international treaties which have been ratified by the National Assembly. An exception to this, however, is to be found in respect of three agreements entered into between the U.K. and Somaliland Governments on June 26, 1960. These three agreements are referred to in Article 11(4) of the Union of Somaliland and Somalia Law, the only article in this law not repealed by the Act of Union (Article 9 (2) quoted above on p. 1013).
The three agreements are:
- The Agreement between the Government of Somaliland and the Government of the United Kingdom of Great Britain and Northern Ireland regarding interim arrangements in respect of the Somaliland Scouts.
- The Interim Agreement between the Government of Somaliland and the Government of Great Britain and Northern Ireland for a United Kingdom Aid Mission.
- The Public Officers Agreement between the Government of Somaliland and the Government of the United Kingdom of Great Britain and Northern Ireland.
The Somali Republic is thus bound under Article 9 (2) of the Act of Union by these agreements without the necessity of their ratification by the National Assembly.
III. Integration of Institutions
The formation of one State out of territories previously administered by two different Powers undoubtedly caused many difficult problems of integration. Divergences existed in most fields-the legal and judicial systems, the organization of the army and the police, taxation, and customs legislation, and the currency and administrative systems differed substantially in Somaliland and Somalia.
This prompted the Government of the Somalia Republic to appoint in October 1960[14] a permanent Consultative Commission for Integration.[15] The decree establishing the Commission notes the necessity, as a result of the unification of Somaliland and Somalia and the proclamation of the Somali Republic, to promote the integration of the legislation and institutions of the two territories and entrusts to the Commission the task of presenting to Government recommendations for integration in the form of legislative proposals.
The Commission has already done much work in this connection, and the following sections describe briefly their work up to date.
1. Judicial and legal systems
Article 3 of the Act of Union provides:
“1. The laws in force in Somaliland and Somalia at the time of the establishment of the Union shall remain in full force and effect in the respective jurisdictions subject to the provisions of the Constitution, this law or any future law.
2. Subject to the provisions of Article 94 of the Constitution concerning the jurisdiction of the Supreme Court, and any future law, the courts as presently constituted in Somaliland and Somalia shall continue to exercise the respective jurisdiction conferred upon them by law.”
I have fully described elsewhere[16] the judicial and legal systems existing in Somaliland and Somalia. Briefly, the Somaliland courts were composed of:
(i) The High Court and District Courts, which primarily administered the statutory law of Somaliland, comprising local Ordinances, applied Indian Acts and U.K. Acts, and in the absence of these, the common law, doctrines of equity and statutes of general application in force in England on March 16, 1900.
(ii) Subordinate Courts, which primarily administered customary law.
(iii) Kadis’ Courts, which administered Islamic law in personal matters only.
The Somalia courts consisted of
(i) The Supreme Court and Court of Justice, mainly with appellate and revisionary powers.
(ii) Assize Courts and Assize Courts of Appeal, which heard serious criminal cases.
(iii) District Courts, which heard minor criminal cases and civil cases. Appeals lay to a Regional Court and thence to a Judge of Appeal.
The law applied in all these courts was generally based on Italian law.
(iv) Kadis’ Courts, which administered Islamic law to disputes between Muslims in civil matters only. Appeals lay to a Tribunal of Kadis.
These different judicial systems applied in the Northern and Southern Regions until June 1962 when the unification of the judiciary was effected by the Organization of the Judiciary Decree,[17] which created a unified courts system. Under the new system, justice is now administered by the following courts:
(a) District Courts.[18] Each District shall have a District Court with jurisdiction over the whole territory of the District. The court is divided into two sections, civil and criminal, and in each section, cases are heard by a single judge. The jurisdiction in the civil section extends over controversies where the cause of action has arisen under Shariat or customary law and any other civil controversy where the value of the subject matter does not exceed 3,000 So.Shs. (Somali shillings). The criminal section has jurisdiction with respect to offenses punishable under the Penal Code with imprisonment for a period not exceeding three years, or a fine not exceeding 3,000 So.Shs. or both.
(b) Regional Courts.[19] Each Region shall have a Regional Court with jurisdiction over the whole territory of the Region. The court is divided into two sections, the General section and the Assize section. In the General section, cases are heard by a single judge. The jurisdiction extends in civil matters over controversies which are not within the jurisdiction of the District Court; and in criminal matters, with respect to crimes not within the jurisdiction of the District Court, the Assize section, and the Military Penal section (see below). The Assize section consists of the President of the Regional Court and two assessors. The jurisdiction extends to crimes, not within the jurisdiction of the Military Penal section, which are punishable by death, imprisonment for life, or imprisonment for not less than ten years.
The Regional Courts of Mogadiscio and Hargeisa shall also have a Military Penal section which shall consist of the President of the Regional Court and two military assessors. It shall have jurisdiction with respect to crimes committed by military personnel which are punishable by military penal laws.
(c) Courts of Appeal.[20] Each Region shall have a Court of Appeal with jurisdiction over the whole territory of the Region. There are two sections, the General Appellate section where appeals are heard by a single judge from judgments of the District Court and the General section of the Regional Court; and the Assize Appellate section where appeals are heard from judgments of the Assize section of the Regional Court. This section is composed of the President of the Court of Appeal, another judge of the court, and three assessors.[21]
The Courts of Appeal of Mogadiscio and Hargeisa shall also have a Military Penal Appellate section to hear appeals from the Military Penal section of the Regional Courts. This shall be composed of the President of the Court of Appeal and four military assessors.
(d) The Supreme Court. Article 94 of the Constitution provides: “The Supreme Court shall be the highest judicial organ of the Republic. It shall have jurisdiction over the whole territory of the State in civil, penal, administrative, and financial matters and in any other matter specified by the Constitution and the laws.”
Under Article 5 of the Organization of the Judiciary Decree, Supreme Court shall consist of a President, a Vice-President, and four other judges. A Division Bench of three judges shall have jurisdiction over:
(i) appeals against judgments given by any court in its appellate jurisdiction or against judgments given by any court from which appeals lie directly to the Supreme Court;
(ii) petitions against final decisions of the Public Administration;
(iii) petitions relating to the rendering of accounts by officers handling public funds;
(iv) petitions for revision of judgments in criminal matters.
A full Bench of the Supreme Court, consisting of five judges, shall have jurisdiction over:
(i) petitions disputing the validity of the election of deputies to the National Assembly in accordance with Article 59 of the Constitution;
(ii) controversies relating to conflict of jurisdiction or competence among judicial organs;
(iii) any other matter considered by the President to be of particular importance.
The Constitution also provides for the Supreme Court to be constituted as a Constitutional Court (Article 99) and as a High Court of Justice (Article 102). Under Annex 1 of the Organization of the Judiciary Decree, the former shall have jurisdiction over questions relating to the constitutionality of laws and shall be composed of the members of the Supreme Court with the addition of (a) two members appointed for a period of three years by the President of the Republic on the proposal of the Council of Ministers; and (b) two members elected for the same period by the National Assembly by an absolute majority of Deputies, as prescribed by the rules of procedure of the Assembly.
The Supreme Court constituted as the High Court of Justice shall have jurisdiction over criminal charges laid by the National Assembly against the President of the Republic or the members of the Government under Articles 76 and 84 of the Constitution. It shall consist of the members of the Supreme Court and six additional members drawn by lot from a special list of twelve citizens elected by the National Assembly at the beginning of its first session from among persons who are not members of the Assembly.
Law administered by courts
Article 9 of the Organization of the Judiciary Decree provides: “Subject to the provisions of the Constitution and this law, the courts shall apply:
(a) the Shariat law or customary law in civil controversies where the cause of action has arisen under the said law;
(b) statutory law in all other matters.”
This is a curious provision, and it will undoubtedly cause many difficulties in interpretation. It appears to give priority in the application of the Shariat law or customary law over the statutory law in all civil disputes. Unlike other Muslim African countries (e.g., the Sudan and Northern Nigeria), where the application of Islamic law is confined to personal matters (e.g., marriage, divorce, succession, guardianship), Article 9 (a) entitles the courts of the Somali Republic to apply the Islamic law in all civil matters, e.g., contractual and land disputes, claims in tort, etc., so long as the dispute has ” arisen under the said law.” Another difficulty arises in connection with the meaning to be given to this last phrase. How does a court determine, for example, in a contractual dispute over the lending of money, or in a claim for damages for personal injury, whether the cause of action has arisen under customary law or Islamic law, or statutory law? Yet a third difficulty is in the wording “Shariat or customary law.” Most of the customary law of the Somali people is in fact greatly mixed with Islamic principles, e.g., the Somali marriage may be said to be partly customary and partly Islamic in that elements of both are found in it. Does the court in a marriage dispute apply the customary law or the pure Shariat law?
With regard to Article 9 (b), it must be noted that the “statutory law” in the Northern and Southern Regions is still to a large extent different, the Northern laws being based on English and Indian Acts, while the Southern laws are based on Italian law. This means that the courts of the Northern and Southern Regions will still apply different statutory laws until they have b unified. It is, however, understood that the Integration C mission has already reached an advanced stage in the unification of various laws, the most important of which are a new Somali Penal Code and Traffic Code, which will come into force shortly. Moreover, a new Death Penalty Law was enacted last February[22] for the purpose of unifying the rules and sanctions relating to homicide. In connection with sanctions generally, the point was raised in a recent case[23] that it was contrary to Article 3 of the Constitution to have a law in the Northern Regions which prescribed a greater punishment than the one provided for under the relevant law of the Southern Regions for a similar offense. Article 3 of the Constitution lays down:
“All citizens, without distinction of race, national origin, birth, language, religion, sex, economic or social status or of opinion, shall have equal rights and responsibilities before the law.”
The argument, which arose under the Arms and Ammunition Ordinance of Somaliland,[24] was rejected by the Supreme Court. Dr. Haji Noor Muhammad J., delivering the court’s judgment, said (at p. 11):
“What the article prescribes is that there shall be no discrimination as between citizens on any of the bases mentioned therein. … Pending the integration of the laws of the Republic laws in vogue prior to independence are allowed to continue in force. Simply because the punishment prescribed by some laws differs as between the Southern and Northern Regions, such laws cannot be struck down as unconstitutional, unless there are valid reasons for doing so. In the present case, we are convinced that there is no valid reason for declaring the Arms and Ammunition Ordinance as unconstitutional.”
Procedure of courts
The rules of procedure to be applied by the different courts are laid down in Article 33 of the Organization of the Judiciary Decree. This provides broadly that the courts of the Regions Hargeisa and Burao (ex-British Somaliland) shall apply in the civil sections of the Code of Civil Procedure[25] except when applying the Shariat law when they shall apply the Islamic procedure; and in the criminal sections of the courts, the Criminal Procedure Ordinance.[26] The courts of the other Regions (ex Trust Territory of Somalia) shall apply the same procedure that was applied before independence, i.e., Italian-based, expert in Shariat matters.
Unified Codes of Criminal and Civil Procedure are, however, in the final stages of preparation.
The judiciary
Articles 15 to 26 of the Organization of the Judiciary Decree lay down the terms and conditions of service for the judiciary; their grades and functions; and also prescribe rules for judicial training and admission to the judiciary.
Office of Attorney-General
This consists of the Attorney-General and four Deputies. His duties are to investigate, institute and conduct criminal proceedings; to institute, conduct or intervene in civil proceedings when he considers that public interest is involved; and to prefer appeals in civil and criminal matters as provided by law. An interesting feature about the office of the Attorney-General is that both he and his Deputies are members of the judiciary (Article 15).
Higher Judicial Council
This is set up under Article 27 of the Organization of the Judiciary Decree and is composed of the President of the Supreme Court as Chairman, the Attorney-General, the members of the Supreme Court, and three other members who shall not be Deputies or practicing attorneys elected for a period of three years by the National Assembly. The duty of the Higher Judicial Council is to ensure the independence of the judiciary and to exercise supervision over the functioning of the courts as well as over the members of the judiciary. In particular, it shall:
(a) exercise supervision over competitions, examinations, and grading with respect to members of the judiciary, with the assistance, if necessary, of university professors of law;
(b) advise the Minister of Grace and Justice regarding administrative measures concerning members of the judiciary. The recommendations of the Council shall be binding with respect to appointments, transfers, promotions, and termination of appointments;
(c) conduct disciplinary proceedings against members of the judiciary and auxiliary personnel, on its own initiative or at the request of the Minister of Grace and Justice, and make binding recommendations regarding the penalties to be imposed.
2. Civil service
The civil service of the Republic has now been completely unified by the Civil Service Law.[27] The law lays down uniform salaries and conditions of service for the officers in the two parts of the Republic and also sets out their duties and responsibilities.
3. Army and police
The unification of the armies and police forces of Somaliland and Somalia is provided for in the Act of Union. Article 6 lays down:
“1. The Somaliland Scouts and the National Army of Somalia, being united, shall constitute the National Army of the Somali Republic and shall be under the authority of the Minister of Defense.
“2. The Police Forces of Somaliland and Somalia, being united, shall constitute the Police Force of the Somali Republic and shall be under the authority of the Minister of the Interior.”
4. State budget
Article 7 of the Act of Union provided that until a unified budget of the Somali Republic had been established, the budgetary appropriations for Somaliland and Somalia should continue to be applied in the respective territories for the purposes for which they were originally intended. This in fact continued until the end of 1961, when the Financial and Accounting Procedure of the State Decree[28] was passed. This establishes one State budget and deals with State revenue and expenditure, and with administrative and accounting controls. In addition, the Decree lays down rules governing the administration of the property of the State.
5. Customs
The Act of Union provided that no customs, excise or other tax was to be imposed upon the movement of goods between Somaliland and Somalia or vice versa when such goods originated in the Somali Republic (Article 8 (2)). However, the customs laws in force in the two territories upon the establishment of the union were retained for goods imported from foreign countries and moving between the two territories; and also for the import or export of any goods in or out of Somaliland or Somalia (Article 8 (1) and (3)).
The customs legislation for both parts of the Republic has now been unified under the Customs Law, of 1961.[29]
6. Currency
The unification of the currency was effected by the Currency Act,[30] which introduced the Somali shilling as the legal tender for the whole Republic.
7. Citizenship
Article 5 of the Act of Union provides that all persons who on the date of the establishment of the union possessed the citizenship of Somaliland or Somalia shall become citizens of the Somali Republic.
Citizenship was governed by different laws in the Northern and Southern Regions[31] when the union was formed, but a unified citizenship law has since been passed.[32]
The unified law provides[33] that any person (a) whose father is a Somali citizen; (b) who is a Somali residing in the territory of the Somali Republic or abroad and declares to be willing to renounce any status as citizen or subject of a foreign country, shall be a Somali citizen by operation of law. For the purposes of the law, a “Somali” is defined as “any person who-by origin, language or tradition-belongs to the Somali Nation.”[34] Presumably, this definition is intended to cover Somalis living in those territories of Kenya and Ethiopia, and in French Somaliland, which are regarded by the Somali Republic Government as part of the Somali nation.
Citizenship may also be acquired by a grant by any person who (a) has established his residence in the territory of the Somali Republic for a period of at least seven years (which may, however, be reduced to two years where the person concerned is the child of a Somali mother even if she is not a citizen); (b) is of good civil and moral conduct; and (c) declares to be willing to renounce any status as citizen or subject of a foreign country.[35]
Loss of citizenship is governed by Article 10, which provides that any Somali citizen who:
“(a) having established his residence abroad, voluntarily acquires foreign citizenship or the status as a subject of a foreign country;
(b) having established his residence abroad, and having acquired, for reasons beyond his will, foreign citizenship or the status as a subject of a foreign country, declares to renounce Somali citizenship;
(c) being abroad and having accepted employment from a foreign Government or voluntarily serving in the armed forces of a foreign country, continues to retain his post, notwithstanding the notice from the Somali Government that, unless he leaves the employment or the service within a definite period of time, he shall lose Somali citizenship; shall cease to be a Somali citizen.”
Moreover, a person who has acquired Somali citizenship by grant may be deprived of it by reason of unworthiness where the decree granting citizenship has been obtained with fraud, false representation, or the concealment of any material fact; or where the person concerned has been sentenced to imprisonment for a term of not less than five years for a crime against the personality of the Somali State.[36]
Eugene Cotran.
Source: The International and Comparative Law Quarterly, Vol. 12, No. 3 (July 1963), pp. 1010-1026
Published by: Cambridge University Press on behalf of the British Institute of International and Comparative Law
Footnotes
[1] The author wishes to express his appreciation of the kind assistance given to him by Mr. P. Contini, Chairman of the Consultative Commission for Integration for the Somali Republic, for providing him with up-to-date information regarding the work of the Commission and supplying him with the English texts of the relevant laws referred to in this article.
[2] Agreement on unification had been reached at meetings of Somali representatives from both territories held at Mogadiscio from April 16 to 24, 1960.
[3] S.I. 1960 No. 1060.
[4] Art. 63 (3) provides that if decree-laws are not converted into law within five days from the date of their publication “such provisions shall lose their force and effect from their date of issue.”
[5] The Somali Republic was admitted to the United Nations by acclamation on September 20, 1960.
[6] Law of January 31, 1961, No 5, Official Bulletin of the Somali Republic, No. 2, 1961.
[7] Italics supplied.
[8] Italics supplied.
[9] Law of June 3, 1962. No. 14, Official Bulletin of the Somali Republic, supplement No. 3 to No. 6, 1962.
[10] The succession here is directly from the Italian Government to the Somali Republic Government because unlike the case of the British Protectorate, there was never an independent Government of Somalia. The Somali Republic was formed simultaneously with the ending of the Italian trusteeship.
[11] Such agreements have been concluded with a number of territories obtaining independence from the U.K., e.g., India, Pakistan, Burma, Ceylon, Malaya, and Ghana, but the legal effect which these agreements have on third parties is still an open question; see E. Lauterpacht, ” State Succession and agreements for the inheritance of Treaties ” (1958) 7 I.C.L.Q. 24-25, and Cotran, “Some Legal Aspects of the Formation of the United Arab Republic and the United Arab States” (1959) 8 I.C.L.Q. 352-357.
[12] On State succession generally, see O’Connell, The Law of State Succession, (1956). On the inheritance of treaty rights and obligations of the U.K. Government by Somaliland, see Brown, “Recent Developments in the Ethiopia-Somaliland Dispute” (1961) 11 I.C.L.Q. 167-178, which deals in particular with the Anglo-Ethiopian Treaty of 1897 and the Anglo-Ethlopian Agreement of 1954.
[13] Italics supplied.
[14] Presidential Decree of October 11, 1960, No. 19, Official Bulletin of the Somali Republic, supplement No. 1 to No. 4, 1960.
[15] The Commission is composed of Mr. P. Contini, U.N. Legal Counselor as Chairman, Mr. P. O’Donoghue, previously Attorney-General of Somaliland, Mr. M. Tucci, State Attorney of the Somali Government, and Messrs. A. Hagi Mussa and Y. Jamacbli, Government Officials.
[16] See Judicial and Legal Systems in Africa (ed. A. N. Allott), Part II, East Africa, by E. Cotran (London, Butterworths, 1962), pp. 136-143.
[17] Legislative Decree of June 12, 1962, No. 3, Official Bulletin of the Somali Republic, supplement No. 6 to No 6, 1962.
[18] Ibid. Art. 2.
[19] Ibid. Art. 3.
[20] Ibid. Art. 4.
[21] Art. 26 lays down rules as to how assessors are selected, but there is no indication as to whether the opinions of assessors are binding.
[22] Law of February 10, 1962, No. 6, Official Bulletin of the Somali Republic, supplement No. 1 to No. 2, 1962
[23] Mohamed Salad Mijertain Mohamoud Mohamed Omer and Others v. The State, Criminal Appeal No. 19 of 1961 (High Court Sessions Case No. 17 of 1961).
[24] Laws of Somaliland, cap. 68.
[25] i.e., Indian Code of Civil Procedure which applies in Somaliland.
[26] Laws of Somaliland, cap. 6.
[27] Law of March 15, 1962, No. 7, Official Bulletin of the Somali Republic, supplement No. 4 to No. 3, 1962.
[28] Legislative Decree of December 29, 1961, No. 2, Official Bulletin of the Somali Republic, supplement No. 8 to No. 12, 1961.
[29] Legislative Decree of March 31, 1961, No. 1, Official Bulletin of the Somali Republic, supplement No. 3 to No. 5, 1961.
[30] Decree-Law of March 6, 1961, No. 2, Official Bulletin of the Somali Republic, supplement No. 1 to No. 3, 1961.
[31] Ordinance No. 15 of January 25, 1960, for the Northern Regions; and Law No. 9 of February 12, 1960, for the Southern Regions.
[32] Somali Citizenship Law, No. 28 of December 22, 1962. Official Bulletin of the Somali Republic, supplement No. 4 to No. 12, 1962.
[33] Ibid. Article 2.
[34] Ibid. Article 3.
[35] Ibid. Article 4.
[36] Ibid., Article 11.
