By an Order in Council, dated May 9,1891, made ‘in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in Her Majesty vested,’ the High Commissioner for South Africa was authorized to exercise in the Bechuanaland Protectorate the powers of Her Majesty, and to do all such things ‘as are lawful,’ and to provide by proclamation for the administration of justice and generally for the peace, order, and good government of all persons within the Protectorate, including the prohibition and punishment of all acts tending to disturb the public peace.
One Sekgome, who claimed to be the chief of ‘a native tribe in the Protectorate’, was detained in custody at a place within the Protectorate by virtue of a proclamation authorizing his detention, and expressed to have been made by the High Commissioner, under the powers conferred on him by the Order in Council, on the ground that the detention of Sekgome was necessary for the preservation of peace within the Protectorate.
On an application by Sekgome for a writ of habeas corpus to the Secretary of State for the Colonies:
Held (affirming an order of the Divisional Court dismissing the application), that the Protectorate was a foreign country in which His
Majesty had jurisdiction within the meaning of the Foreign Jurisdiction
Act, 1890; that the proclamation was validly made under the powers conferred by the Order in Council; and that the detention of Sekgome was, therefore, lawful.
Held, also, by Vaughan Williams and Kennedy L.JJ., that the Protectorate was not a ‘foreign dominion of the Crown ‘ within s. 1 of
the Habeas Corpus Act, 1862.
Quaere, whether, in any event, the Secretary of State for the Colonies was a person having the custody of Sekgome to whom a writ of habeas corpus could be issued.
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion’ in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an act of state.
A writ of habeas corpus would run to such a territory, and ‘may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner’.
Vaughan Williams, Farwell LJJ
[1910] 2 KB 576, [1910] UKLawRpKQB 78
Commonlii
England and Wales
Citing:
Distinguished – Sprigg v Sigcau PC 26-Feb-1897
(Cape of Good Hope) . .
Cited by:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.
Commonwealth, Constitutional, Litigation Practice
Leading Case
Updated: 14 November 2021; Ref: scu.470681
