Pontus Marine

Wednesday, June 28, 2017

The State of Somaliland: An Independent State and its Laws -June 1960

(Somaliland Law)- James Crawford  (The Creation of States in International Law, 2nd ed, OUP2006, p 330-331) wrote that one of the main method by which new states were formed was ‘the grant of independence by the previous sovereign who has the competence to transfer power to a new state’. 
 The various means that such transfers had been effected ranged from ‘legislation, the termination of the treaties of protection, the conclusion of an agreement in the nature of a treaty between the former sovereign and the new State, or a combination of these methods’. 

Although in a number of British African colonies or protectorates, an Independence Act  was often the preferred method, in Somaliland which was a British Protectorate since 1887 (and Aden and Kamran in 1967, for example),  the principal instrument used for granting independence was a Royal Proclamation Terminating Her Majesty’s Protection Over The Somaliland Protectorate dated 24 June 1960. It stated, among other things,  that

    whereas  it is  intended  that the Somaliland Protectorate shall  become an  independent country  on the  twenty-sixth day  of June 1960  (hereinafter referred to as  "the  appointed day") … We do hereby,  by  and   with   the advice of   Our  Privy  Council,  proclaim and   declare that,  as   from  the   beginning  of  the  appointed  day, Our protection over  the  territories known  as the Somaliland  Protectorate  shall   cease.”
    [26 June 1960 the ap 
    Constitutional Oath of office of Somaliland National Assembly Members 27 June 1960
    “I,…………………………, do swear in the name of God the Compassionate and Merciful that I will be faithful and bear true allegiance to the State of Somaliland, and as a member of the Legislative Assembly of Somaliland will do everything in my power to promote the interests of the State and act for the well-being of the inhabitants thereof.”
    (Section 36 and Schedule I (Part II) of the 1960 State of Somaliland Constitution)
    A similar  oath set out in section 8 and Schedule I (Part II) of the Constitution was administered to Prime Minister M I Egal on 26 June 1960 and later to the Ministers.
    pointed day]
Furthermore, the Somaliland Order in Council 1960 (1960, No. 1060) made on 23 June1960 and coming into force ‘immediately before 26 June 1960’, referred to the Royal Proclamation and the independence date and stated that as it was ‘expedient to make new provision for the Government of Somaliland’, the new (post-independence) State of Somaliland Constitution was attached to it. The Order  also revoked the (hitherto) Somaliland High Court appeals to the East African Court of Appeal (in place since 1950) and to the Judicial Committee of the Privy Council in London, in the light of the independence of Somaliland. Other legislation passed by the Somaliland Legislative Council (see below) also dealt with, among other things the  transfer of the exercise of administrative and statutory powers previously laid out in various legislation, and the new post-independence nationality of Somaliland which replaced the Somaliland British Protected nationality (see below).

International Status of the new State
Shortly after midnight on 25 June 1960  the British Protectorate came to an end and the new sovereign STATE OF SOMALILAND was born.  Under the then developing international law practice relating to decolonisation, the new State became automatically a subject of international law, and would have been entitled to admission to the UN, had it planned to apply for membership and was not hastily entering into a union with the soon to be independent Somalia.  Nevertheless on 26 June 1960, Somaliland was a fully fledged new state under international law and did not require exchange of diplomatic relations with other states (for which there was no time) to be considered a subject of international law, like any other new state. Lowe and Walbrick  (international law experts) wrote -
    When new states emerged within the territorial boundaries of the administrative unit of the departing imperial power upon grant  of independence … [r]ecognition, by States interested, of the newly independent State  was generally accorded in formal ways, such as by representation at the independence ceremonies or by the extension of congratulations. If they made applications  for membership of the United Nations, these new States were routinely admitted”. [A V Lowe and Colin Walbrick (eds), Current Developments: Public International Law, International & Comparative Quarterly (1992) Vol 41, Issue 2, p 473] [Underling added.]
Indeed in Somaliland’s case, over 30 states (including Security Council members) sent congratulatory telegrams to the Somaliland Government at Hargeisa welcoming the new state to the comity of nations. The fact that Somaliland planned to unite with Somalia in no way diminished the independence and sovereignty that it acquired on 26 June 1960, but clearly, for practical purposes there was no time for the many countries that welcomed the new Somaliland state to extend formal diplomatic relations to Somaliland for the short period that it was to exist as a separate state before the (ill-fated) union with Somalia. In his Table of ‘the extinction States between 1945 – 2005’, James Crawford (p. 716 – see above for reference) includes Somaliland, but unfortunately misses Somalia which was also an independent State for a much  shorter (though imprecise) period than that of Somaliland’s. [We will be exploring the legal foundations of the union of Somaliland and Somalia in a separate article].




The fact that the two countries (of Somaliland and Somalia) saw themselves as two independent states forming a union can be seen unequivocally in the texts of the two acts of union (see the Somaliland Union Law and the 1961 belated Act of Union).  Furthermore, on 26 June 1960 the State of Somaliland entered into a number of treaties with the United Kingdom,  which were deposited at the United Nations under Article 102 of the UN Charter  that deals with the registration of treaties and international agreements between states. These treaties numbering five, included an agreement confirming
     ‘on behalf of the Government of Somaliland that, should they in anyway be a party to any agreement for, or any instrument having the effect of, transferring, or confirming the transfer of, jurisdiction over the territory of the Government of Somaliland, to any other Government, such agreement or instrument shall provide that the obligations of the Government of Somaliland in respect of the [the treaties] are transferred to, and accepted by, that other Government’. [After union, that Government was not Somalia, but the product of the union of the two States, the Somali Republic)
These treaty obligations of the independent State of Somaliland were included  in the Somaliland-Somalia Act(s) of union. So despite the short existence of the State of Somaliland, the International Law Commission, in its 1972 report  to the UN General Assembly on succession of states in respect of treaties (Document A/8710/Rev.1 – ILC 24th Session work Report  2 May – 7 July 1972) pointed out (p.285, para 10) that the ‘Republic of Somalia’ was composed of Somalia and Somaliland and that ‘[both] of these territories had become independent States before their uniting as the Republic of Somalia’ and so their case in terms of succession of treaties by states was ‘one of a uniting states’ which involved  ‘double succession which the creation of the Somalia Republic involved[Incidentally, on the use of the term ‘Republic of Somalia’ [rather than the ‘Somali Republic’ which  was the name clearly agreed by Somaliland and Somalia in both their versions of Acts of Union to be the  name of the new Republic], the ILC (and the UN) were sadly not incorrect in using the term ‘the Republic of Somalia’ as that was indeed the name under which the application for UN membership of the new united state of the Somali Republic was submitted by the then Provisional President on, would you believe it, 1 July 1960! You can see the initial Approval by the Security Committee on 6 July 1960 and on which basis the application was later approved on 20 September 1960 by the UN General Assembly (Resolution 1479/XV) (I shall be writing further on this point (and on the formation of the union), which is one of the many ways that the ill-fated union failed practically at its birth  on 1 July 1960 when all the previously agreed legal foundations were never laid properly !). 

Finally, it is indeed incredible that far too many young Somalians seem to believe that Somaliland was always ‘a region’ of a country called ‘Somalia’ – an attitude passed down, perhaps, by those who always believed that there was always one country called ‘Somalia’ even before 19th Century European partition of Africa!

The Constitution and Government of the State of Somaliland 
The State of Somaliland Constitution 1960 (also published in Supplement No. 1 of the Somaliland Protectorate Gazette, Vol. xx, No. 30 dated 25th June 1960) set up a  parliamentary system of government for Somaliland  with a Government (consisting of a Council of ministers headed by a Prime Minister), a Legislative Assembly of 33 members (previously elected as a Legislative Council on 17 February 1960 – see s.18 of the Constitution) whose term was normally 3 years (unless, as in a parliamentary systems it was dissolved earlier by the Prime Minister calling a general election), and an Independent Judiciary consisting of the existing courts (although appeals from the High Court no longer going to the East Africa Appeals Court or the London Judicial Committee of the Privy Council). 

The Prime Minister (Mr Mohamed H I Egal) whose coalition enjoyed the majority of the Assembly and who was the former ‘Leader of Government Business’ at the preceding Legislative Council was, as laid down in s. 8 of (and Part I of the first Schedule to the Somaliland Constitution), was sworn as Prime Minister of the State of Somaliland on independence. He was not only the head of the Government but also the Commander in Chief of the Somaliland Army, the Somaliland Scouts, formed on 1 May 1943, but designated as the Somaliland Scouts on 1 July 1943 and specifically charged then ‘with the defence of the Protectorate’ and, when needed, ‘the maintenance of order within it’.  As agreed under a treaty  with United Kingdom, seconded UK military personnel would continue to serve with the Somaliland Scouts after independence for a period of six months, and other than their service law would be subject to the law of Somaliland.  The new state also had its police and Ilaalo (rural police), as well as a very professional civil service with a newly established Public Services Commission (Ordinance 22 of 23 June 1960).  Local Councils (with some elected members) were also operating in all the six principal districts as well as in Gabiley. 

To ensure a smooth transfer of all responsibilities at independence, an Ordinance was enacted on 23 June 1960 ‘to make provisions for the transfer of statutory functions [set out in Acts or Ordinances] consequent upon the independence of Somaliland’ – Ordinance No 20 of 1960. This and its latter additions listed all the major statutory functions (especially at former Protectorate Governor or UK Secretary of State level) and identified who was hitherto responsible for them under the law before 25 June and who would be taking over these responsibilities  after independence. 

State of Somaliland Nationality
The status of Somalilanders as ‘British Protected’ nationals was replaced on 26 June 1960 by that of Somaliland nationality under the the Somaliland Nationality and Citizenship Ordinance 1960 (Ordinance No. 15 of 1960) which was enacted on 23 June 1960, came into force on 26 June 1960 and defined entitlement to Somaliland nationality

Somaliland State Territory and Boundaries
Section 2(1) Somaliland Constitution 1960 stated: ‘The territory of Somaliland shall be all that territory which on the commencement of this Constitution, is comprised in Her Britannic Majesty's Protectorate of Somaliland.’  All the boundaries of that territory (to the west, south and the east with the Gulf of Aden in the North) were agreed in international treaties in the 19th century and were clearly delineated on the ground in the 1930s.  The State of Somaliland retained these clearly delineated international boundaries none of which were changed on the emergence of the new state. The international law principle of uti possidetis applies to the these international boundaries at independence.

The Somaliland Legislative Assembly
The State of Somaliland Government and the Legislative Assembly (no longer called Council) started their work immediately as some of the Constitutional provisions came into force just before the 26 June. The former Clerk of the Legislative Council, Ahmed Mohamed Adam (Qaybe),  who became the Secretary to the Somaliland Council of Ministers issued the official notice about the first session of the Legislative Council as follows:
    Government Notice  No. 64 of 1960
    The Constitution of Somaliland
    In the exercise of the poweres conferred upon him by subsection (1) of section 37 of the Constitution of Somaliland, the Prime Minister has been pleased to direct that the First Session of the Legislative Assembly shall be held at Hargeisa at 9’o’clock in the forenoon of the 27th June 1960.
    Hargeisa                                                     AHMED MOHAMED ADAM
    26th June 1960                                          Secretary to the Council of Ministers

On the same date, the Council of Ministers revised some of the previously laid transfer of delegation of the statutory duties and amended the list of Ministers and Departmental officers who undertake them. This was also issued a Government Notice No. 65 of 1960 . [Both Notices were  gazetted in the Somaliland Gazette which was previously the Somaliland Protectorate Gazette. The current gazette is now called the  Somaliland Republic Gazette.]

At their meeting on the 27 June 1960, the main Law that the Legislative Council passed was the Union of Somaliland and Somalia Law (Law No 1 of 1960 – published in Supplement No. 2 to the Somaliland Gazette, Vol 1, No. 3, dated 5th July 1960). The text of the Law was previously sent to the Somalian Legislative Council at Mogadishu weeks before with the expectation, as agreed,  that their Council would pass the same text, but they never did.  Although it is often overlooked,  this Law (which like all Somaliland laws required, under s. 28 required the assent of the Council of Ministers to become Law) was formally given such assent on 5 July, when the Somaliland Prime Minister and the ministers (as well Legislative Assembly members) were, by then,  all in Mogadishu. [ I shall be covering in a forthcoming separate article the issue of the legal foundations of the union, but see also this earlier note:
The State of Somaliland Laws
Section 54(1) of the 1960 Somaliland Constitution made it clear that,  subject to any changes made after independence, 
    ‘the existing law [before independence ] shall continue to be the law of Somaliland as from the commencement of this Constitution except in so far as it is thereafter amended, modified, repealed or revoked by competent authority but shall be construed with such adaptations and modifications as may be necessary to bring it into conformity with the provisions of this Constitution’. [My insertion in brackets and underling]
The underlined wording (which is broadly similar to the wording in Article 130(5) of the current Somaliland Constitution which accepts the use of pre 1991 laws subject to conditions) confirms that the Somaliland Protectorate laws would, where necessary, be interpreted or used with any adaptations or modifications  that would make them conform to the Constitution. So, for example, references the United Kingdom officials or institutions  will be read as pertaining to their corresponding Somaliland officials or institutions and provisions that cannot be so adapted could be disapplied.  Secondly section 54(2) gave express powers to the Council of Ministers that they may at
    ‘any time within twelve months after the commencement of this Constitution make such amendments and modifications of the existing law as appear to the Council of Ministers to be necessary or expedient for bringing the existing law into conformity with this Constitution or otherwise for giving effect or enabling effect to be given to this Constitution; and the existing law shall have effect accordingly from such time as may be specified in the order…’.
[Incidentally, to continue with the post 1991 analogy, although this useful modification power has not been  expressly set out in the current Somaliland Constitution, under Article 130(5) of the Constitution (or the corresponding article in the 1993 National Charter), it is, in my view, still open to the President, in confirming the continued use of any pre 1991 laws to add any necessary modifications to align them with the Constitution until a new law is promulgated. Indeed the late President Egal has done that in many cases when he confirmed the continued use of  pre 1991 laws in Somaliland, such as the major Codes, the public finances laws etc.]

As far as the application of the existing laws was concerned, the Somaliland courts were to be–
a) guided by Somali customary law (including Somali customary law which is based upon Islamic Law) so far as it is applicable and is not repugnant to justice, equity  and good conscience or is inconsistent with any written law in force in Somaliland or any regulation or rule made thereunder; and
b) decide all such cases according to substantial justice, without excessive regard to technicalities of procedure and without undue delay’.

Briefly, the courts, at independence, consisted of the:
  • The High Court - with original criminal and civil jurisdiction, as well as appellate and revisionary jurisdiction from district courts. Criminal trials at the High Court were conducted with assessors.
  • District Courts (of the first class) - with original civil (unlimited) and criminal (sentence up to 4 years) jurisdiction, and appellate and revisionary jurisdiction over the Subordinate Courts.
  • District Courts (of the second class) - with original civil jurisdiction (not exceeding value of Sh. 1,500) and criminal jurisdiction (sentence up 6 months).
  • Subordinate Courts – with original jurisdiction in civil (no exceeding value of Shs. 5,000) and criminal (sentence up to 6 months or fine not exceeding Shs. 750) matters. There were 13 such courts.
  • Kadis’ Courts – with exclusive jurisdiction in sharia law matters relating to family life, such as marriage, divorce, guardianship, succession and maintenance.
  • Chief Kadi’s Court – appeals and revision from Kadi’s Courts
List of Main State of Somaliland  Laws
I have compiled below a list of some of the main Somaliland laws which were still current on 26 June 1960. Both versions of the Acts of Union (of Somaliland and  Somalia) confirmed the continued use of pre-union  laws in their respective jurisdictions  (see Article 3(1) of the belated 1961 Act of Union)  until they are replaced. Therefore many of these Somaliland laws continued to be in use in the Somaliland territory until the 1970s. Those that have been replaced earlier as part of the integration of the two legal systems were invariably (with the exception of the Criminal Procedure Law) the Somalian (Italian) laws which were simply extended to the Somaliland areas.

This list of the State of Somaliland laws current as at 30 June 1960  is only for historical purposes, but it might well be worthwhile now for Somaliland to consider when updating its laws (as was done in the Companies Law) the modern versions of these old Somaliland laws which have been developed in the countries (such as the East African or the South East Asian Muslim countries) that had previously similar British legislation before their independence. The List is by no means exhaustive, but it covers the main laws.
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