A. The union proclaimed
The decision to form a union was reached at a conference of Northern and Southern Somali leaders held in Mogadiscio between April 16 and 22, 1960. A joint communique issued at the end of the conference announced it had been agreed that the two territories would be united on July I, 1960; the new Somali Republic would be a unitary, democratic and parliamentary State; the legislative bodies of the two territories would be merged into a National Assembly which would elect the President of the Republic; Mogadiscio would be the capital of the Republic and the seat of government; committees would be set up ‘in order to investigate and propose convenient solutions to the problems connected with the administrative, financial and judicial systems now in force in the two Territories’; the United Nations would be asked ‘to supply experts who may help in accelerating the integration of the two Territories’.
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This program constituted a formidable undertaking if one considers the already overcrowded agenda for the brief period of two months preceding independence. In the Trust Territory, there was great pressure on Italian and Somali officials to arrange for an orderly transfer of powers five months earlier than the date originally fixed by the United Nations. Furthermore, even though there was no legal requirement to that effect, it was generally felt that, for the new State to be a truly sovereign and independent entity, the constitution should come into force not later than the first of July. When it was decided to unite with the Somaliland Protectorate, most of the political leaders of the Trust Territory were fully occupied with the proceedings of the Political Committee; and the work of the Constituent Assembly had not yet begun. Planning for the elaborate ceremonies celebrating independence also required a considerable amount of time and attention.
In the Somaliland Protectorate, the British authorities and the Somali political leaders and civil servants were equally busy hastening the preparation for independence on a date much earlier than anticipated.
Another complicating factor was that nobody had any official responsibility for laying the legal foundations for the union. The task of the United Nations and the Italian Government in the South, and of the British Government in the North, was confined to preparing the respective territories for independence and completing the transfer of powers on the appointed dates. Accordingly, in the period immediately preceding the union, there was little, if any, consultation between the authorities ultimately responsible for the administration of the two territories.
In the circumstances, it is not surprising that when what one author called ‘the precipitate union’ came into being, there were several legal loose ends.
Having reached an agreement at the Mogadiscio conference on the broad principles of the union, it was necessary to spell out its legal consequences. 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. This document would, therefore, be in the nature of an international agreement and would be legally binding on both States. To implement this plan, on June IS, 1960, during the last stage of the deliberations of the Constituent Assembly, the President of the Political Committee 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. . .
In the course of the discussion on this proposal, which was incorporated in the Transitional and Final Provisions of the Constitution, the President of the Constituent Assembly explained that the text of a proposed Act of Union had been received from the North. Apparently, it was intended that the document would be signed by representatives of the two States after approval by the Legislative Assembly of the South.
What actually happened, however, differed from the plan and from the above-mentioned provision of the Constitution. On June 27, the day after its independence, Somaliland’s Legislative Assembly passed ‘The Union of Somaliland and Somalia Law’, incorporating the proposed Act of Union previously sent to Mogadiscio. Section 1(a) stated 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’. The law contained detailed provisions concerning the ‘conditions of the union’, citizenship, the Head of State, executive and legislative powers, the application of the Constitution, succession to rights and liabilities, and other matters. This instrument was adopted as a law having effect only in the State of Somaliland. However, 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’. This rather ambiguous clause apparently indicated an intent that the instrument would be signed by the representatives of Somaliland and Somalia, thus becoming binding on both. However, as it was not signed by the representatives of Somalia, it never acquired a legal force in that territory.
On June 30 the Legislative Assembly of the Trust Territory met for the purpose of adopting an Atto di Unione (Act of Union), as had been announced at the June 18 meeting of the Constituent Assembly. Although the Atto di Unione was similar to the Union of Somaliland and Somalia Law, there were some significant differences between the two texts. After prolonged debate, in the evening of June 30, the Assembly approved the Atto di Unione ‘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’. Apparently, it was envisioned that the adoption of the Act of Union by the National Assembly would constitute, in effect, the ‘signing of the Act of Union’ which, according to the Transitional and Final Provisions of the Constitution, was supposed to precede the election of the Provisional President of the Republic.
The Legislative Assembly adjourned only a few hours before the day in which independence and the union were to be proclaimed. There was no time for the two Governments to reach an agreement on a definitive single text, as the Assembly had requested.
At midnight of June 30, the Trusteeship Agreement ceased to be in force, and the President of the Legislative Assembly, acting in his capacity as 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 a joint session as the first National Assembly. The President of the Assembly proclaimed the union and the members sealed it by standing ovation. As of that moment, the Constitution was deemed to apply to both parts of the Somali Republic. In accordance with the Constitution, the Assembly then elected Aden Abdulla Osman as the Provisional President of the Republic.
There is no doubt that on the first of July a full and lawful union was formed by the will of the peoples of the two territories through their elected representatives. However, the legal formalities 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 it legally binding in that territory. In a last-minute attempt to formalize the union, on July 1 the Provisional President of the Republic signed a decree-law with a much shorter version of the Atto di Unione. However, 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.
Thus when the union was formed, its precise legal effects had not been laid down in any instrument having binding force in both parts of the State. As explained below, the matter was clarified seven months later by the adoption of a new Act of Union with retroactive effect as from July I, 1960 for the whole territory of the Republic.
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