§ Fugitive offenders
§ 1. Where, in the case of a person accused of having committed an offence within the territory of the Republic, a warrant or provisional warrant for his apprehension has been endorsed or issued outside the Republic under Part I or Part II of the Fugitive Offenders Act, 1881, and has been executed before the commencement of this Act, the provisions of that Act applicable to his case shall, unless the offence is not an offence under the law of the country or territory in which the warrant was so endorsed or issued, apply in his case as if the Republic were a part of Her Majesty's dominions.1012
THE EARL OF DUNDEE moved, in paragraph 1, to omit all words from and including "applicable" and to substitute:
shall apply in relation to the warrant and any proceedings thereon as if the Republic were a part of Her Majesty's dominions:
§ Provided that no person shall be returned to the Republic by virtue of this paragraph—
- (a) if the offence of which he is accused is an offence of a political character or an offence which is not an offence under the law of the country or territory in which the warrant was endorsed or issued as aforesaid; or
- (b) if he proves to the satisfaction of a magistrate, court or authority having jurisdiction under the said Act to order his return or discharge that his return is in fact sought with a view to trying or punishing him for such an offence as aforesaid."
§ The noble Earl said: This Amendment, which was in the name of my noble friend, the Foreign Secretary, fulfils an undertaking given on the Report stage of the Bill in the other place, when we said we would make it clear that in the case of demands for repatriation, Or legal prosecutions which were not yet terminated, it would not be possible to return a fugitive to South Africa if the offence of which he was accused was one of a political character. It had already been agreed—and the Bill had accordingly been amended—that an accused person would not be returnable in respect of an offence that was not an offence under the law of the country or territory in which the warrant was endorsed or issued. The matter was not raised in another place until late on the Report stage, and the undertaking was given which this Amendment seeks to fulfil.
Page 7, line 12, leave out from second (" Act ") and insert the said new words.—(The Earl of Dundee.)
§ THE EARL OF LISTOWEL
We were very glad to know that the Government had given this undertaking in another place, and we are delighted to find it has been honoured in this way. We regard it as of great importance that somebody who is coming from South Africa and who is prosecuted on political grounds should be in the same position as other aliens here who cannot be extradited on political charges. We therefore welcome this Amendment.
§ LORD OGMORE
I should just like to ask a question on this matter. Paragraph 1 of the Third Schedule says:Where, in the case of a person accused of having committed an offence within the territory of the Republic, a warrant or provisional warrant for his apprehension has been endorsed or issued outside the Republic under Part I or Part II of the Fugitive Offenders Act, 1881, and has been executed before the commencement of this Act, the provisions of that Act … shall … apply …Does that mean that this is purely a provisional matter, and not a permanent one? Does it mean that in the case of any warrants which have been executed after the commencement of this Act these provisions shall not apply? That is my first question.
The other question I would ask is this. What arrangements are being made for citizens who go from one part of a High Commission Territory to another? As your Lordships will know, these three High Commission Territories, Swaziland, Bechuanaland and Basutoland, are in fact governed and administered from within the Republic. Therefore, if anybody—whether a fugitive offender or not —wishes to see the Government of the Protectorate, either to appeal against something or other or in order to get some protection, he not only has to go through Republican territory, but has to go into Republican territory, because that is where the High Commissioner responsible for the Territories has his administrative headquarters.
Your Lordships will remember that in the Second Reading debate I protested against this procedure. As you can imagine, it was said by some people, "Sir John Maud is a splendid fellow, and any criticism you make is a criticism of him". That is complete nonsense. I made this criticism years before Sir John Maud was appointed, when he was still an official in Whitehall. This is not an objection to the man, but to the system—that is to say, that the same man ought not to be Ambassador to a foreign country, with his headquarters in the capital of that foreign country, and be at the same time Governor of three High Commission Territories and administering those Territories from inside the foreign country. We can see now how inconvenient that is going to be under this provision relating to fugitive offenders. As I have said before, if the offender wants to go to see 1014 the High Commissioner, he has to go into the very territory from which he is a fugitive. I must say that that is a very rum state of affairs, and the sooner we put an end to it the better.
Just to show this is not a fictitious or idle premise, I would point out that quite recently in Basutoland an African political refugee from the Republic was assaulted and kidnapped by South African police. After disappearing for five months in gaol he succeeded in slipping a note out of gaol. This led to an attempt to secure his release, whereupon he was charged in the South African court with the attempted murder in Basutoland of his kidnappers. The charge failed, I am glad to say, and the High Commissioner ultimately secured his release and he returned to Basutoland.
There is a second case, which I mentioned on the Second Reading of thi[...]Bill. Dr. Swame, the Secretary of the Swaziland Progressive Party, was arrested by South African police whilst returning from a visit to the Bechuanaland Protectorate. On his return from Bechuanaland to Swaziland he had to go through Republican territory, and although he was in possession of a valid passport and travel visa he was charged with being without a reference book or pass. In this case, too, the High Commissioner obtained both his release and an apology from the Minister for External Affairs.
I mention those cases only to show that these are very real questions in the Republic and, in a sense, they are very difficult to obviate in all cases, because the Territories are divided by Republican territory in the way I have described. But we can at least make this far less difficult than it is now, by putting our own government in our own territory. While we have the head of our own government living in a foreign territory—which surely must be the only case in the civilised world of that happening—then situations of this sort are going to arise from time to time, and there is going to be great embarrassment between the United Kingdom Government and the Republic.
It is no good "riding off" on the personality of Sir John Maud. That does not come into it. It does not matter who the man is. I do not care whether it is Sir John Maud or somebody else; 1015 the same difficulties are bound to arise, because it is not a question of personality. It is a question of the location of his administrative headquarters which, as I have said, are now in a foreign country. That is the situation so far as my second point is concerned. In other words, is it not going to be very difficult to control this refugee or fugitive situation While that absurd situation continues?
The third point is: what is the position about our own Protectorate citizens? Are they in any way to be regarded as fugitive offenders? It must be realised that it is often very difficult to decide in borderline cases, where you have tribes, whether a man is a Republican citizen or a citizen of the High Commission Territories. Your Lordships may remember that, in the case of Dr. Swame, a noble Lord opposite got up on Second Reading, When I raised this point, and said that Dr. Swame was not a Swazi; he was a Zulu, and he came from Natal.
The noble Lord is perfectly correct. I said that I thought he was a Zulu. I put it as a question. In point of fact, I was incorrect and he is a Swazi.
§ LORD OGMORE
I am much obliged to the noble Viscount: it is good of him to correct himself. But the point the noble Lord made may well have been right; he may well have been a Zulu. Therefore, I feel that the Government should look into that question to see whether some definition of borderline cases of this sort could be made. Otherwise, I see many difficult issues arising with the Republic. This is the last chance we shall have of raising these questions, which are of vital importance to the citizens of the High Commission Territories. This situation does not arise anywhere else in the world, except for India and Pakistan. I would ask the Government to look at this matter very carefully, and to think about whether this particular provision in this Schedule is strong enough to meet the sort of case which could arise.
May I ask the noble Lord one question, before the noble Earl replies? Unless the noble Lord is having three independent 1016 Governors, I do not see how the Central Government being at Mbabane, which was a suggestion, could help with people coming from Bechuanaland or Basutoland: they would still have to cross Republican territory. Unless you have three individuals, I do not see how that would solve the problem.
§ LORD OGMORE
That is a very good question, and it can be answered in this way. These people would get from one place to the other by air. They all have landing strips, and the people would go by air; that is to say, they would not land in Republican territory. The noble Viscount will appreciate that, if your headquarters are located in Republican territory, you are bound to go there, whether you go by rail, road or air; whereas if the headquarters are at Mbabane, in Swaziland, as I suggested, you could get there by air from Bechuanaland and from Basutoland, without putting your feet on Republican territory.
§ 5.26 p.m.
§ THE EARL OF DUNDEE
The noble Lord, Lord Ogmore, has asked three questions. The first question was: what will happen to subsequent cases after May 30? As I think the noble Lord understands, this Amendment about fugitive offenders which I have now moved, deals only with cases which are now pending, in which a prosecution has already been initiated. With regard to new permanent arrangements, which may exclude certain types of offences, the Government have made it clear in another place that it is their intention that the new arrangements should also exclude offences which are not offences in the territory being asked to return a fugitive, political offences, and offences which are subject to the death penalty in the territory requesting the return of the fugitive but not in the territory being asked to surrender the fugitive. I cannot go into more detail, because we are now currently engaged in negotiating these new arrangements with the South African Government.
Then the noble Lord raised the question of whether it was desirable to have the same person as Ambassador from the United Kingdom to the Republic of South Africa and as High Commissioner for the Territories. That is a very wide question which I do not think I should 1017 enter into on this particular Amendment, but, as the noble Lord knows far better than I do, the Territories are each largely governed by the Resident Commissioners in the Territories. Almost all types of case are dealt with by the Resident Commissioners. Very few individuals need go to the High Commissioner; and certainly no fugitive offenders, with whom this Amendment is concerned, need do so.
The third matter which the noble Lord asked about, and which, if I may say so, interested me very much, was as regards cases of doubt. Of course the Bill makes no difference at all to the status of British-protected persons, but the noble Lord represented that owing to tribal arrangements there might be some doubt as to whether a particular person was a citizen of the Republic of South Africa or a British-protected person. I think what he meant to say was that his residential qualification would not finally determine the matter. I will certainly do what the noble Lord asked me to do—which I think is all that I can promise at this moment—and look into the question, to see whether anything can be done to put in a definition or to make some provision which will, so far as possible, eliminate any doubt about the status of these people.
§ THE EARL OF LUCAN
Before the noble Earl sits down, would he say whether he thinks there is any possi- 1018 bility of doing that, short of abolishing all the colonial boundaries which were laid down in the nineteenth century, through dividing tribal areas in Africa?
§ On Question, Amendment agreed to.
§ Third Schedule, as amended, agreed to.
§ Remaining Schedules agreed to.
§ House resumed.