The Somali Republic: An Experiment In Legal Integration

C. The Act of Union

Soon after being established, the Integration Commission devoted its attention to the problems arising from the uncertainty sur­rounding the legal consequences of the union. There were no clear answers to some important and potentially troublesome questions. For instance: what was the effect of the union on the jurisdiction of the Northern and Southern courts, both territorially and as to subject matter? Did the laws in force in the North and in the South before the union continue to be applicable in the respective territories? Were the powers and competence of public authorities in the Northern and Southern Regions affected by the union? Was it permissible to use in the North money included in the budget for the South, and vice versa? Did a citizen of Somaliland or Somalia automatically become a citizen of the Somali Republic on the day of the union? Was a Northern civil servant transferred to the South entitled to his previous salary or was he subject to the different salary scale applicable to Southern civil servants? Was it permissible for imported goods to move freely throughout the territory of the Republic even though the custom tariffs in the South were generally higher than those in the North? Did treaties extended to one or both territories before independence become binding on the Republic as a whole upon the formation of the union?

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To dispel some of the existing uncertainties, it was thought desirable, as a first step, to enact a law applicable to the whole territory of the Republic, defining the legal effects of the union with as much precision as possible. This was done on January 31, 1961, when the National Assembly adopted by acclamation a new Act of Union, which repealed the Union of Somaliland and Somalia Law 33, and which was made retroactive as from July 1, 1960.

Some of the provisions of the Act of Union were declaratory of already existing conditions. Thus Article 1 provided that Somaliland and Somalia, being united, constitute the Somali Republic, ‘which shall be an independent, democratic and unitary republic’; and Article 2 codified the fact that ‘The legislative Assemblies of Somaliland and Somalia shall together comprise the first National Assembly of the Somali Republic’. An important institutional provision is contained in Article 6 which established that the armies of the Northern and Southern Regions ‘shall constitute the National Army of the Somali Republic and shall be under the authority of the Minister of Defence’. The same article provided for the unification of the two police forces as the Police Force of the Somali Republic and, following the Italian system previously applied in the South, placed it under the authority of the Minister of Interior.

The Act of Union was bawd on the premise that in the beginning, it would be undesirable to introduce drastic changes that might shake the freshly laid foundations of the Republic. Accordingly, it established that the courts and public bodies of the two territories would continue with their respective powers and jurisdictions until superseded by integrated legislation. Follow­ing the same principle, it was provided that the laws in force in Somaliland and Somalia at the time of the establishment of the union would remain in full force and effect therein until changed by future legislation. Officials of the Northern and Southern Regions were assured conditions of service not less favorable than those applicable to them at the time of the establishment of the union. However, the apprehension of those who feared that the unification of the civil sense would result in a cut in salary was confirmed because this guarantee was made ‘subject to the provisions of any future law’. Until the establishment of a unified budget, the budgetary appropriations for Somaliland and Somalia would, as far as practicable, continue to be applied in the respective territories for the purposes for which they were originally intended. All persons who on July 1, 1960, were citizens of Somaliland or Somalia became citizens of the Somali Republic ope legis. The custom tariffs applicable in the two territories before the union remained unchanged. However, in the case of goods moving from North to South or vice versa, where the import duty in the territory to which the goods were proceeding was higher than in the other a duty equal to the difference between the two rates was charged.

An important question that had to be settled was whether the Somali Republic became the successor state with respect to treaties and other rights and obligations pre-existing the union. This matter was dealt with in Article 4 of the Act of Union as follows:

‘1. All rights lawfully vested in or obligations lawfully incurred by the independent 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.’

According to this provision, the Somali Republic accepted to be the Successor State only with respect to rights and obligations incurred by the independent governments of Somaliland and Somalia. Since the independence of Somalia coincided with the formation of the union, there never existed an independent government of Somalia. Consequently. Article 4 of the Act of Union had no practical application with respect to the Southern Regions.

In the North, on the other hand, there was an independent government of Somaliland for five days before the union. During that brief period Somaliland acquired the following rights and obligations, which were then transferred to the Somali Republic by virtue of the Act of Union:

• Those vested until June 26. 1960 in Her Britannic Majesty ‘for the purposes of the Government of the Protectorate of Somaliland’.
• Those arising from three agreements between Somaliland and the United Kingdom. i.e. (ii) the Agreement regarding interim arrangements in respect of the Somaliland Scouts; (i) the Interim Agreement for a United Kingdom Aid Mission. (iii) the Public Officers Agreement.

In addition to the Act of Union, the question of treaty succession was covered in an exchange of letters annexed to the treaty of friendship signed on July 1, 1960, by representatives of the Italian Republic and the Somali Republic. It was agreed therein that the Somali Government would assume all rights and obligations deriving from international instruments concluded by the Italian Government on behalf of Somalia during the trusteeship administration. i.e. between December 2, 1950, and June 30, 1960.

Thus the undertaking assumed by the Somali Republic with respect to treaty succession was confined to the three above-mentioned agreements with the United Kingdom and the treaties and agreements concluded by Italy during the ten-year trusteeship. As to other international instruments preceding independence, it seems clear that the Somali Government intended to retain its freedom of action.

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