At the time of independence there was a strong anti-colonial sentiment sweeping the African continent. Somaliland was no exception. There was a popular drive to unite all the five Somali inhabited territories including Somaliland, Somalia, French Somaliland (Djibouti), Ogaden (Ethiopia), and the Northern Frontier District (NFD) of Kenya. The five-pointed white star on the flag symbolized this aspiration. The 1954 Anglo-Ethiopian Agreement in which Britain transferred 25,000 sq miles (64,750 sq km) of ‘Hawd’ grazing land to Ethiopia evoked an outcry in Somaliland and intensified the demand for a union to recover lost territory. Under public pressure, Somaliland and Somalia representatives opened a dialogue on a union between the two territories. The two parties agreed to sign an act of Union after independence. They agreed that the act would be in the nature of an international agreement between two states. Accordingly, the Legislative Assembly of the independent State of Somaliland approved and signed the Union of Somaliland and Somalia Law on 27 June 1960. The Law was immediately effective in Somaliland, but as set out in the recital, it was supposed to be signed by the representatives of Somalia, as well. In fact, this never happened. Instead, the Legislative Assembly of the Somalia Trust Territory met on 30 June 1960 and decided to approve “in principle” an Act of Union (Atto di Unioni), which was significantly different from the Act of Union drafted by Somaliland assembly. According to Contini, (The Somali Republic: An Experiment in Legal Integration, Frank Cass & Co. Lt 1969: London), the Assembly 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”.
But on the morning of 1st July 1960, the members of the Somaliland Legislative (33) and those of the Somalia Legislative (90) met in a joint session and the Constitution which was drafted in Somalia was accepted on the basis of an acclamation, with no discussion, and a Provisional President was elected. The newly elected Provisional President issued on the same day a decree aiming to formalize the union, but even that was never converted into Law as presidential decrees always require to be presented to the National Assembly for conversion into Law under Article 63(3) of the new Constitution within five days of their publication, otherwise, they shall cease to have effect from their date of issue. Thus, although the agreement between Somaliland and Somalia was that the same Act of Union would be signed by both states, that did not happen and the legal formalities were not completed properly as agreed. According to Contini,
“the Union of Somaliland and Somalia Law did not have any legal validity in the South (Somalia) and the approval “in principle” of the Atto di Unione was not sufficient to make it legally binding in that territory.”
Cotran [(1968)12 ICLQ 1010] comments that the legal validity of the legislative instruments establishing the union was “questionable” and he summarized the reasons as follows:
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.
The Union of Somaliland and Somalia Law purported to derogate in some respects from the Constitution of the Somali Republic.
The Somalia Act of Union was approved “in principle” but never enacted into law.
The decree law of July 1, 1960, did not come into effect since it was not converted into law in accordance with the Constitution.”
It was only on 18 January 1961 when a new Act of Union was put to the National Assembly and was promulgated on 31 January 1961. This Law entitled the “Act of Union” was made retrospective even though there is a generally accepted principle that laws should not be retroactive. The new Act of Union was different from the one signed by the Somaliland Legislature. The Law of Union passed by the Somaliland Legislature contained some guarantees about the laws applicable in Somaliland, the rights of Somaliland serving officers, which should not become less favorable than was applicable to them at the time of the union, the establishment of a special Commission on laws and its composition etc. These were, in hindsight, the only, rather halfhearted, demands that Somaliland made at the time of the union. But the 1961 retrospective Act was very clear in repealing anything which was inconsistent with the 1960 Somalia Constitution, and specifically repealed “the provisions of the Union of Somaliland and Somalia (Law No.1 of 1960)” except for Article 11(4) which relates to agreements entered into by the independent State of Somaliland (see Article 9(2) of the 1961 Act of Union).
The above is a clear indication that Somaliland was an independent state with a Government of its own, however short lived. This was again confirmed by Article 11(4) of the 1961 Act of Union, which read:
“all rights lawfully vested in or obligations lawfully incurred by the independent Governments of Somaliland and Somalia … shall be deemed to have been transferred to and accepted by the Somali Republic upon its establishment”.
On 20 June 1961 a constitutional referendum was held to vote on the new constitution for the country created the previous year by the union of British Somaliland and Italian Somalia. The constitution was overwhelmingly approved by Somalia voters. But, in Somaliland, the referendum was boycotted by the leading political party, the Somali National League (SNL), as a result only 100,000 votes were casted, and 60% of those voted opposed the provisional constitution.