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Who owns African cultural patrimony?

Discussing the Benin mask

Published on 19 January 2011

Author(s): The Archival Platform/H-AfrArts

Type:  

In December 2010 Sotheby’s announced the pending sale of a 16th century mask, once thought to have belonged to an ancient Bening king. The mask was put on sale by the descendents of Lt-Col Sir Henry Lionel Galway, who took part in 1897’s punitive expedition in southern Nigeria. This was carried out by British forces in retaliation for a massacre of a previous British-led invasion force. Troops deposed the king and looted the city. The British confiscated many of the treasures they found, auctioning them off to finance the expedition. Many of the artefacts ended up in the British Museum, which currently holds another of the same group of masks, although some, like this one, remained in private hands. After a flurry of protests, Sotheby’s announced that the mask had been withdrawn from sale at the request of the consignors.,” said a Sotheby’s spokesman.

The issues was hotly debated on H-Net AfrArts Discussion Network, with questions being asked about: the right if the descendents to have possession of and to sell the mask; the ethics of selling an item that some people consider to have been acquired illegally, through an act of war; legal ownership of cultural heritage objects and the role and responsibilities of the state; especially when the identity of a state has changed over time; which laws apply to the sale of culural heritage objects removed from one state and offered for sale in another? The questions of repatriation and the need for an inventory were also raised by those who participated in the discussion.

While the topic under discussion is fascinating, the process - and the immediacy of the of debate that unfolded over the internet was too. Scholars in various parts of the world engaged freely and frankly through the discussion network and social network platforms such as Face Book were quickly and effectively employed to garner support for the protest; several participants posted links to media reports or other relevant sites.

See posts below.

ivory pendant of Queen-Mother Idia 3.jpg

POINT OF VIEW: Prof. Sylvester Okwunodu Ogbechie, 23 December 2010
The ongoing comments on the identification of the Benin Ivory mask pending sale at Sotheby’s are very erudite. I am however interested in more fundamental questions:
1. By what right does Sotheby’s sell this stolen artwork?
2. By what right does it belong to the descendants of Sir Gallway who now stand to reap massive financial rewards for artworks created in Benin, paid for by a Benin King, and belonging to his rightful and legal descendants?
3. Can anyone ever hold legal claim to artworks that are known to have been stolen?-
4. How much of the money from the sale of this artwork accrues to Oba Erediauwa as the sole and undisputed owner of all Benin bronzes anywhere in the world?
See my comments on the above at http://aachronym.blogspot.com/2010/12/sothebys-is-trafficiking-in-stolen.html I have also started a Facebook page to engage the issue of African Cultural Patrimony: http://www.facebook.com/pages/African-Cultural-Patrimony/187035137978056?v=wall

As scholars, we have become used to discussing Benin artworks and other African artworks held in Western collections as if the prevailing issues of the day doesn’t apply to them. However, claims of cultural patrimony and demands for its repatriation are the main issues of this age and we should at least discuss this in greater detail. Many of us have made our careers working on Benin art (and other forms of African art) and our discussion reflects our expertise clearly. However, by sidelining the credible issue of African claims to its cultural patrimony, we fail to fully extend our expertise in these subjects.

As a wise person once said, all that is required for evil to triumph is for good people to do nothing. I think we can no longer afford to operate as if these issues are unrelated to the artworks we study. Please visit the new Facebook page and disseminate it widely. If we are unable to stop Sotheby’s from selling the artworks, we can at least try to bring attention to the sheer injustice of its disdain for African concerns about its cultural patrimony.

REPLY: Jonathan Fine, 24 December 2010
Professor Ogbechie raises fundamental questions concerning the apparently planned sale of a number of pieces from the Kingdom of Benin at Sotheby’s in February of next year. As someone who is very interested in African art, and also who has some legal experience, I think it might be useful to add my views,for what they are worth.

1. The first question about whether Sotheby’s has a right to auction these questions is not really a good way to put it. Sotheby’s can try to sell anything they want. They question is whether they incur civil or criminal liability for doing so if they know or should know has a cloud over their title (which is a nice legal way of saying that there is a reason to doubt that the people purporting to furnish them to Sotheby’s for sale can convey good title to the art works in question). I don’t know what specific representations have been made to Sotheby’s by the descendants of Galway about the legality of their title. Or whether Sotheby’s has required some sort of indemnity from them. Or even whether Sotheby’s has obtained advice of counsel to try to determine whether they can proceed with the sale without a substantial risk of liability. But it seems to me that Sotheby’s may well be running the risk of incurring civil and/or criminal liability by selling these objects. Another interesting question is whether Sotheby’s may be committing fraud against whomever might purchase the objects by not disclosing the questionable title to these pieces that I suspect that the Galway heirs have—that is, whether Sotheby’s may be withholding information that a buyer would consider material in deciding to bid on or buy the works, and at what price.

2. The right of Galway’s descendants to these pieces turns on whether they acquired legal title to the objects that were looted from the Kingdom of Benin. I believe that looting artworks in war was not a legitimate way to acquire title to them by 1897. This legal norm was clear concerning looting in war between European states at the time. It was, however, not universally applied to looting carried out in Africa, Asia, the Levant, and South America. I would contend that the uneven application of the principle should not matter—looting was looting. Against this there is a legal principle (statutes of repose and statutes of limitations) which means that if a person knows that someone else has his or her property and he or she acquiesces in it, then—after a period of time—the original owner loses the right to reclaim the property. This, I would say, is less a concern for the objects on sale at Sotheby’s because, as best I can tell, their presence in the Galway family was not openly known, and so no period of limitations or repose would or could have started running against them. However, this may be quite an issue for seeking the return of other Benin objects that have been openly known in collections outside Benin for decades. Who is the present owner of the pieces is a question to be determined by British and Nigerian law. I do not know that the descendants of the Oba and/or the current Oba are the owners under Nigerian law. The objects could belong to the Nigerian state under a claim of cultural property if there is a law under which these objects fall. They could belong to the Nigerian state under whatever terms the Oba’s sovereignty was ceded to the British and then descended from the British to Nigeria in 1960. They also could belong to Oba Erediauwa alone. Or there may be provisions of Nigerian, British or treaty law,that resolve these issues. These are matter for which a Nigerian and or British solicitor would have to offer an opinion, and one would need to determine whether other countries would agree to enforce those legal provisions.

3. Yes. It is possible to obtain legal title to stolen objects. As I noted above, for instance, if the original owner knows of their whereabouts and fails to make sufficient efforts to reclaim them, title may pass to a new owner.There are exceptions, of course, and in some legal systems any innocent purchaser in due course can obtain legal title (which is another reason why the question of fraud becomes important). Moreover, sometimes, under the color of national patrimony laws, title may vest in the state, rather than individuals—even for property that is stolen as between individuals.

5 (4). If Oba Erediauwa makes a claim to be paid for the object that are being sold at auction—and he is paid—then, I would think, at law, he will have acquiesced in the sale itself to the extent that legal title could be passed to the new purchasers.

As a final point, I think that Benin pieces are a special case, because they were acquired by plunder. And these particular pieces represent an even more special case because they have been hidden away for so long. To attempt to view these questions primarily as questions of cultural patrimony, rather than as questions of the laws of war, is, I think, less helpful. Cultural patrimony claims are often an artifact of a particular period of nationalism and of the idea that the nation-state has the right to control what is and what is not culturally important. We should be very careful, I think, before vesting states, with all their political agendas, with such power in the realm of culture.

The claim of cultural patrimony is almost always made based on a desire of today’s nations to naturalize themselves by finding roots in the past. For instance, to be provocative, what real claim based on “cultural heritage” can acountry like Italy assert over Greek vases made 2000 years before Italy existed as a nation, when the people who brought the objects to what is now Italy have long since died? When the Ottoman sultan’s decided that the Parthenon marbles were not part of their cultural heritage, and allowed the British to remove them, how has this undermined later Greek nationalists’ claims of the paramount importance of the sculptures as cultural patrimony?

By the same token, by what convincing logic, can Britain claim as cultural patrimony paintings by Titian originally made for a Hapsburg Emperor? Cultural patrimony claims, I suspect, are most convincing where they are adjunct to a clearer legal claim of right—such as the recent case of Yale’s return of the Machu Picchu objects – makes clear. But, at base, cultural patrimony is very much a labile set of claims the strength of which exists very much in the eye of the beholder.

Of course, I do not wish to be taken as defending Sotheby’s. Far from it. They should explain why they think this sale will be legal, and we, as scholars, should subject those claims to the most rigorous of scrutiny.

REPLY: Akin Ogundiran, 24 December 2010
The issue raised by Sylvester Ogbechie is a matter of justice as it applies to Africa. When it comes to the resources of Africa, whether it is its minerals or cultural products, there is this persistent cloud of exceptionalism. What is good for the goose is not always good for the gander in African case. Being liberal or conservative has nothing to do with opinions relating to how the West as a corporate group treats African humanity. Such dichotomies may make sense in the US or even British domestic politics. They don’t have any relevance to the fundamental Western (and now Eastern) political economic attitudes towards Africa and its resources – arts, minerals, commodities, etc.

Sotheby may have the right to sell anything stolen in Africa because it is Africa. Not Europe. Anything stolen in a territory that now belongs to Nigeria by imperialist invaders (who created Nigeria in the first instance) may be good for the market. The same logic will not apply to France, not Germany. Sotheby can sell anything looted in the court of Benin but not in any of the royal courts of Britain. Sotheby can sell anything looted in Benin Palace but not in Buckingham Palace.

Our heritage thought leaders would tell us that “the cultural patrimony of England belongs to the world to enjoy” but the arts of that heritage is found only in England and its descendant/sister states in the West. Not in Africa. In fairness, they would also claim that “the cultural patrimony of Benin and Nigeria belongs to the world to enjoy” but most of these are in Western Museums all over the world!

Since we stand in different positions in history, it is certain that we will have different views in history. However, those who would form opinions about the arts and crafts of Benin, and the justification for the descendants of conquistadors and looters to benefit from property stolen by their ancestors need to first understand the history that led to the British invasion of Benin. I have one recommendation for reading: Leo Otoide’s “Prelude to the British ‘Punitive Expedition’ to Benin: An Analysis of the Galleway Treaty of 1892,” in *Precolonial Nigeria *(Africa World Press, 2005), pp. 525-536.'

The attack was the culmination of the British efforts to remove one of the most formidable obstacles to their conquest of what is now southern Nigeria. That was seventeen years before Nigeria was created as a subject state of Britain. That war almost obliterated the institution of Benin Monarchy. It survived but the 1897 attack led to some permanent damages. For sure, it lost its sovereignty.

The Benin Monarch is still there and I know that those who are associated with the institution have been duly notified of the pending Sotheby sale. Likewise, the Nigerian officials know of this development. It will not surprise many of us that this state created by Britain is impotent to speak for Benin. Is this not what African postcoloniality is about? Is this not how it was designed? It is left for those who are the inheritors of the Benin monarchy and who recognize it as the spirit of their existence to at least raise their voice as to why this sale is illegal, immoral, and unjust.

For those of us who are peddlers of ideas and knowledge in the western realm, I hope we can at least be informed of history before we form opinions. I have read a posting claiming that Benin used slave labor to produce its royal art and because Benin traded in slaves it has no basis to make claims of its stolen cultural objects. Both statements are wrong. Benin contributed the least to the Atlantic slavery in the entire West African Atlantic seaboard despite the fact that with its powers and military might it could have become the main mart for enslaved captives. Its lukewarm attitude towards human trafficking was unprofitable to its European trading partners.

This made the slave ship flying Portuguese, Dutch, English, French flags look elsewhere. The artists of Benin were not enslaved. They worked for the king and for other elites, and they were compensated for their brilliant works. Yes, there were slaves and other socially marginalized people in Benin but Benin was never a slave-based society unlike the entire Americas and unlike the British Empire of the 17th and 18thcenturies.

Benin’s production of wealth was not slave-based. What is just, legal, and moral cannot be discussed or settled in the vacuum of power. Power as well as the political will and ability to mobilize or coerce public opinion determine justice, legality, and morality at any time.Sylvester has invited those who have profited from their study of Benin arts and other African arts and thereby build illustrious careers along the way, to consider helping Benin make the case why this sale is wrong, if they think so. The fine ideas presented by Jonathan Fine are useful for sharpening the argument against the sale.

REPLY: Alexander Soifer, University of Colorado, 24 December 2010
On 12/24/2010 8:06 AM, Jonathan Fine wrote: “Of course, I do not wish to be taken as defending Sotheby’s. Far from it. They should explain why they think this sale will be legal, and we, as scholars, should subject those claims to the most rigorous of scrutiny.” I would add the other “of course”: those who assign the ownership of artifacts elsewhere, “should explain why they think this sale is” illegal, “and we, as scholars, should subject those claims to the most rigorous of scrutiny.” Those who shout the loudest the contemporary politically correct slogans are not necessarily right (for the record, I view myself as a liberal).

Where does one draw the line? What gives today’s Nigeria the right to the Kingdom of Benin? If all or part of creating an artifact was a slave labor, do we assign the ownership to slave owners and thus condone slavery? And I am not addressing here Benin alone. I am raising the issue of artifacts’ ownership by the slaves, surfs, etc.

Do the looted by the state from its citizens belong to the state? What would be the result if the Nigerian court were to decide the issue? But do they have the right to decide? How far back should we go, to Rome (and demand much of Europe to pay for renting the land to… Italy?!), or to Greece, Macedonia, Land of Milk and Honey, Adam and Eve, God, which one(s)? And where do we draw the territorial and inheritance rights?

These and many other issues ought to be filed with the International Court, not the court of public opinion. Which laws prevail, of what period and land? Which states can claim continuity of ownership into consequent states? What is “consequent”? Which rights belong to the states and which to the people, even when the states recognized no citizens rights? I wish Happy and Healthy Holidays to everyone,

P.S.: On aside, the famous collector and teacher of pre-Columbian and ancient art, so generous that he has already donated over half of his collection to the Princeton Art Museum, told me specific stories of returned artifacts, which found their way back to the United States. Must they be returned again?

REPLY: Steve Tatum, 24 December 2010
The Nigeria Liberty Forum has a petition and a Facebook page for the mask for anyone interested. http://www.ipetitions.com/petition/benin_mask/ or http://www.facebook.com/pages/Stop-The-Sale-of-Stolen-16th-Century-Benin-Mask/141311869256609

REPLY: John Otu, Department of Fine and Applied Arts, Federal College of Education, Zaria, Nigeria,December 24, 2010
The sale will unfortunately take place perhaps Sotheby is aware of the lack lustre attitude of the Nigerian government in pursuing relentlessly the recovery of the stolen artifacts. The might also be borne out of the postcolonial state of most African states and Nigeria in particular. As much as this forum goes on to jolt awake the sleeping Nigerian government, let us remember that the nation’s commission for museums and monuments play deaf to this proposed illegal sale. We all must bare in mind the ill conduct that guides the appointment museum staff and heads in Nigeria albeit why it is not even in the print and electronic media yet.

REPLY: Jonathan Fine, December 25, 2010
For those who are interested in some of the legal issues that may be at play, I recommend reading the Altmann case that was decided a few years ago by the US Supreme Court and which ruled that Austria did not enjoy immunity from suit under the doctrine of sovereign immunity for its expropriation of various important paintings that were in the Belvedere Gallery museum in Vienna. Although the case technically addresses only whether a particular US law, the Foreign Sovereign Immunities Act applies retroactively to the case, the discussions are wide ranging and the case documents the efforts made by Altmann and her relatives to keep their claim to the art in question alive. See http://supreme.justia.com/us/541/03-13/case.html The Altmann case does not deal with the question of the legality of plunder under the laws of war and other sources of international or domestic law in the UK or Nigeria.

REPLY: Sylvester Okwunodu Ogbechie, 26 December 2011
Thanks to everyone who commented on my post “Who Owns African Cultural Patrimony”. Sotheby’s issued a terse public statement yesterday cancelling their planned sale of the Benin Iyoba Idia mask (the statement suggests that the consignees withdrew the artwork, which to me suggests that Sotheby’s itself is not necessarily concerned about its criminal involvement in the trafficking of stolen cultural patrimony. Would they have gone ahead with the sale if the consignees decided to brazen it out?). In that regard, it seems the massive public outrage of Nigerians and other supporters succeeded in preventing an overt sale of the artwork. Of course, the consignees could simply sell it in private but any museum or private collector that now buys the artwork is knowingly purchasing a contested object. For those who do, we will no doubt see legal challenges to several institutions that hold Benin cultural patrimony in due time.

Having never heard of Alexander Soifer before reading his response to my posting on on H-Net, I find rather uninformed his statement that “Cultural Patrimony” debates represent the view of “those who shout loudest the contemporary politically correct slogans”. Demands for restitution of cultural patrimony form the basis of some of the most progressive human rights legislation of the 20th century, especially with regard to the issue of looted Holocaust art. The Nigerian government has been demanding the return of Benin art from Western museums for over fifty years. Far from being politically correct, “demands for restitution and repatriation” are in fact political hot topics, capable of destroying careers. Ungodly sums of money are at stake here and the struggle over ownership of cultural patrimony currently operates as a zero-sum game in which there can only be winners and losers.

My goal in engaging this issue is to mediate contending claims of both the African creators of these artworks and the Western institutions that currently hold them. However, when these Western institutions act as brazenly as Sotheby’s acted in this instance, it suggests a disregard for the African viewpoint that is as clear as a slap in the face. Moreover, Soifer misses the point of my analysis: while the Nigerian government may claim the Benin works as part of its national patrimony, I have always argued that they are looted private property that rightfully belongs to the reigning king of Benin, Oba Erediauwa,who has formally demanded that Western museums and collectors return the Benin bronzes
(see http://aachronym.blogspot.com/2007/11/oba-erediauwa-speaks.html

I have written about these demands at length on my blog Aachronym and have even started an academic journal –Critical Interventions—specifically to engage the issue: the journal inaugurated a formal discourse on the aesthetics, politics and economics of African cultural patrimony as it affects African ownership of the intellectual property rights of its indigenous systems of knowledge and cultural practices. Interestingly enough, the current issue of the journal is in production on the subject of “Who Owns African Cultural Patrimony”.

Soifer’s other questions are a grab bag of the usual objections generally raised by people opposed to discussion of the cultural patrimony issue. These questions have been answered at length elsewhere (See Kwame Opoku’s rebuttals to these objections at http://groups.google.com/group/museum_security_network/browse_thread/thread/1c016c4b01b67b0e#  and elsewhere online) but briefly: What gives Nigeria the right to the Kingdom of Benin is the same thing that gives any modern state rights over its constituent subjects and regions. If Britain can exercise claims over Celtic sites and France over the Lascaux caves, there is no reason Nigeria should not exercise a claim to antiquities found within its national borders.

If Nigerian courts were to decide the issue of the Benin bronzes, they will undoubtedly rule in favor of returning them to Nigeria, in the same manner that British courts largely rule in favor of Britain. This merely demonstrates the inadequacy of current legal structures because it does not allow for interpretations outside of those established through British jurisprudence. We need a new way of dealing with African cultural patrimony issues that respects the rights of Africans to their bodies and resources.

How far back should we go to resolve cultural patrimony issues? As far back as is needed: the issue here is not mere repatriation of artworks, but ownership of the economic value and equity created by these artworks as a result of their current and future financial value. There is also the important issue of ownership of the intellectual property rights of these artworks, which should accrue to the Benin people by right. In other words, we need to go as far back enough as is necessary to obviate the loss of value and equity arising from the relocation of the bronze artworks from Benin to the West. Otherwise, we condemn Africans to a permanent underclass status and conversely support a clearly demonic order in which Western countries claim natural right of might to control and exploit the African continent. I don’t see how one can defend the status quo given the atrocities visited upon Africa in the past few centuries.This history is still largely unaccounted for.

Which laws should prevail? So far, Africans have argued for their basic human rights in courts based on Western laws. If human rights laws are international, perhaps we should subject Western brigandage in Africa to African laws. The traditional penalty for invading the privacy of the Oba of Benin was death. This is why the original British envoys to Benin were killed: they had been warned not to enter the kingdom but were outraged that a mere African king should dictate to her majesty’s emissaries. By Benin law, anyone except the King or high priests who touches the ancestral altars automatically received a death sentence. Would anyone support the right of the Benin king to enforce this hallowed traditional law by condemning to death the curators and dealers who handle the Benin bronzes in various contexts?

Of course not, but you keep hearing arguments that we should respect Western claims to African cultural patrimony merely because the artworks are currently located in Western museums and institutions. Moreover, Western courts have consistently failed Africans. Remember that Slavery, Apartheid, Jim Crow laws, and a host of other odious legislation that rendered Africans subhuman were once very legal in most Western countries. However, Africans are asked to continue to plead for their human rights in Western courts based on laws that supported their dispossession in the first place. This is like asking a victim to submit to a court controlled by relatives of his aggressor. It is unjust and as Augustine of Hippo stated, an unjust law is no law at all.

Finally, Soifer raises the linchpin of all anti-repatriation arguments: if the artworks are returned to Africa, they will merely be stolen by Africans and resold to Western collectors. Maybe, but that is no reason to refuse to negotiate the return of the artworks. In a world in which all sorts of things are being trafficked, there can be no guarantee that repatriated African artworks will not be stolen. However, if scholars stop validating stolen artworks by refusing to write about them, and museums refuse to exhibit them, it might mitigate the allure of these artworks for art thieves and the disreputable dealers and collectors who traffic in stolen African cultural patrimony.

But then this is the usual strategy of holding Africans to impossible standards: art theft is a global problem. Soifer should explain to me what measures of protection he suggests to stem the ongoing theft of art in Western museums and private collections. Interpol estimates about 34,000 stolen artworks are still missing, despite the gabililions of dollars spent on museum security everywhere. (See http://www.guardian.co.uk/artanddesign/2009/sep/06/interpol-online-art-database  and the various art-loss registers online)

Jonathan Fine’s response was more significant, in that it shows some knowledge of the legal issues involved. The legal status of the Benin bronzes and the legality of trading in these contested commodities have never been adjudicated in a court of law. For the past three years, I have searched for a law firm in the USA willing to take on a test case on this issue to no avail. Obviously the cost of bringing such a case is far beyond personal means but I am confident in due time that a legal case will be made. For now, current laws protect Western collectors of these artworks whose “ownership” rests on assumptions that they acquired the artworks legally. They did not, and there is no case here that the legal owner of the artworks did not make an effort to recover them. All the Benin kings since Ovonramwen have called for return of the artworks to no avail.

I also disagree with Fine’s suggestion that “cultural patrimony” is the wrong lens through which we can view the issue. I have argued for the issue of stolen Benin bronzes as a case of clear theft of property. Since the British never formally declared war on Benin in 1897, we cannot view the subsequent looting of the King’s palace as “spoils of war”. I believe a legal case can be made that most of the other African artworks “collected” during colonial control of African countries were expropriated by coercion and plunder: colonized populations are victims of aggression and cannot be said to have acquiesced in the transfer of their artworks even if they sold them to the collector themselves.

The reason is that transactions of this sort that occurr under duress are ipso facto illegal. By dealing with this issue as a cultural patrimony issue, we draw attention to the mass plunder of African cultural resources in the same manner that its natural and human resources were plundered for the economic gain of various Western countries. In this regard, I have started a series of posts to the African Cultural Patrimony Facebook page to demonstrate the human cost of how various European colonizers collected artworks from various parts of Africa (click on “Photo Albums” at http://www.facebook.com/pages/African-Cultural-Patrimony/187035137978056?v=wall). This narrative is usually written out of our analysis of the artworks but they are relevant because the processes involved are quite traumatic. The point is that the colonial destruction of indigenous African cultures was a systemic protocol designed to render indigenous cultures bereft of life and liberty. Tons of artworks were destroyed and the remaining relocated to Western collections.

On the specific issue of the Benin bronzes, there can be no legal transfer of the stolen artworks objects while the rightful owners of the stolen objects are actively calling for their restitution. The Benin bronzes are not an amorphous product of “African art”. They are private property, bought by and paid for by the Benin kings through massive expenditure of national treasure, and constitute the wealth of the kingdom. These bronzes were commissioned for specific historical events, the artists who produced them were paid for their work, and the artworks were used in very prescribed manner and also as a store of value.

The looting and dispersal of the Benin bronzes deprived the Benin king of his private property and deprives his descendants of equity in this stolen property. It deprives Benin people of any chance to benefit in any economic, political social or cultural manner from the value produced by these artworks and further denies them equal access to these artworks. Aside from what they see in images of the artworks in Western museums, young Benin people have no way of benefiting from the products of their ancestors. The artworks generate income for the various museums that hold them but this is not in any way shared with the Benin king of his heirs.

The rallying cry for the African cultural patrimony campaign is “equal access to the artworks and equal value for the producers of the artworks”. This is because the location of Benin cultural patrimony in Western museums and private collections prevents the emergence of objects on equal value in Benin or other parts of Africa. Usually, scholars are quick to deride newer Benin bronze artworks as “fakes” which helps to sustain and increase the value of those Benin bronzes that can be traced back to the 1897 plunder of Benin. In this manner, the initial act of theft and vandalism is used as the primary context for validating the originality of Benin bronze arts in different auctions and museums. The bronze objects produced in Benin since the invasion are therefore prevented from gaining value mainly by being derided as products located outside the corpus of Benin art. More importantly, the claim that Western institutions that hold these artworks are “universal museums” holding the objects in trust for “mankind” is pure bumkum.

The fact that Britain passed laws explicitly forbidding repatriation of artworks from the British museum shows that it regards the collection as an indispensable aspect of its imperial history. While the collection is accessible to international audiences that have the requisite access to global travel, it is not accessible to 99.999% of Africans who are unable to travel freely across international borders. As a matter of fact, there is no Western nation (including the USA) that will grant a Benin person a visa merely to visit the British museum for the purposes of viewing the bronzes, which enforces an active denial of access to the artworks to Benin peoples.

There are more practical matters at stake here and some of them are listed below.

FINANCIAL: The African cultural patrimony issue is as much a financial issue as any other. The possession of stolen Benin bronzes has financially enriched various Western museums. The current campaign that stopped Sotheby’s proposed sale of the Benin Idia mask also highlights this fact: it was expected the auction would fetch as much as 4.5 million British pounds. Recognizing the financial aspect of this issue shifts discussion about stolen African cultural patrimony away from abstract moral arguments about right and wrong to the more important argument about the financial impoverishment of Africans resulting from long-term Western looting of African resources. The estimated value of stolen African cultural patrimony in Western museums and private collections is worth several billions of dollars. This rises considerably if the economic benefit of holding stolen African cultural patrimony is factored into the discussion, i.e. the boost in tourism from viewing these artworks for instance, as well as the economic value from their sale, insurance, exhibition, publication and collection.

DISCURSIVE/ACADEMIC: The study of Benin art has been skewed by the dispersal of Benin cultural patrimony which has had the effect of locating Benin studies in the West and depriving Benin people any chance to develop their own discursive platforms. There is a need to redirect Benin studies (and African art studies in general) to take greater cognizance of actual cultural developments in Benin/Africa rather than its current focus of studying the reception of Benin art in the West. In this regard, the British invasion denied the Benin kingdom a chance to define its own destiny.

HUMAN RIGHTS: The looting of Africa to sustain the West is now a human rights issue. The looting of the bronzes from Benin in 1897 was accompanied by genocide resulting in the deaths of hundreds of thousands of Benin people during the British invasion, and countless more as a result of the scorched earth policy that the British army put in place for six months while they were trying to apprehend Oba Ovonramwen. The invasion destroyed the economic foundations of the Benin kingdom, reduced its inhabitants to penury and forced it into the British colonial state of Nigeria. More importantly, the artworks from Benin were flagrantly sold without consideration of their status as stolen goods. Specifically, the ivory pendant mask of Queen Mother IDIA was taken from Oba Ovonramwen’s bedroom; the other three were taken from his regalia when he surrendered to the British.

CONTEMPORARY RELEVANCE OF THE ARTWORKS: The Benin corpus are the most clearly articulated case of stolen African cultural patrimony extant. The artworks were safeguarded in the palace of the Benin kings for over 500 years (ivory sculptures are even older than the bronzes) before they were plundered. If the British invasion did not occur, it is quite believable that they would still be secured in the palace using strategies that kept them safe for centuries.

CULTURAL: The current Benin King is interested in building a museum in Benin to showcase Eight Centuries of Edo/Benin cultural development. A way of resolving the issue of repatriation is to design a system of circulation that will allow the artworks to be shown periodically in Benin. If the king secures their repatriation, they can be exhibited in the new museum. More importantly, any settlement reached would need to be crafted to include international oversight of managing the museum in Benin and allowing it to share in exhibitions of the artworks (under firm agreements) thus giving younger generations of Benin people a chance to benefit from the cultural products of their ancestors. I don’t deny that a successful legal challenge to recover the Benin bronzes appears at this time as an impossible endeavor. What is vital is that we must end once and for all the comfortable disregard for African claims to their looted cultural patrimony. The demand for cultural patrimony repatriation and restitution will be one of the principal issues of this age. To think otherwise is to be foolhardy.

REPLY: Peju Layiwola, University of Lagos, 27 December 2010
I have read some of the comments regarding the sale of the Benin Idia mask by Sotheby. I am happy that the internet offers instant opportunities for scholars in Africa to contest obnoxious views that emanate from the West about ownership of Africa’s cultural patrimony. The withdrawal of the sale of the Queen Idia mask by Sotheby was not determined by the International court but rather inspired by the court of public opinion. Issues regarding looted cultural patrimony are very sensitive and thus, caution must be taken in making statements.
Simply put, a stolen work surfaces for sale, the owners shout foul! The trader then takes it off the shelf. Much as it may appear as a legal issue, it also raises moral questions.

1. To put things in better perspective, it may be interesting to read Akin Oyebode’s article on how Galway consolidated British stranglehold on Benin which led to its downfall. (http://www.edo-nation.net/eghar2008.htm) It becomes even more disheartening to know that over a century after, the descendants of Galway still hope to gain financially from the loot taken in one of the most gruesome episodes of British imperialism in the Euro/African encounter. I have argued as in my most recent work, Benin1897.com (.com as in commercial)) that the attack on Benin by the British was instigated by an overwhelming commercial interest. The commodification of Benin artefacts in the west and the continuous keeping of these artefacts in foreign museums are extensions of this commercialization. (see: http://benin1897.com/)

2. There is no contention between the Nigerian State and the Benin royal family over rights of ownership for Benin artefacts. Indeed, requests have been made by both the Nigerian state and the Benin royal family for the return of the looted works. Details of these requests can be found in my book, (Benin1897.com Art and the Restitution Question, Pp.199-207, 2010) It may interest readers to know that when a few items of Oba Ovoramwen’s regalia, found in Britain, were returned in 1938, they were given directly to the eigning king, Oba Akenzua II.

These artefacts did not find their way back to Europe or elsewhere, but were assimilated into the sartorial traditions of the palace. This underscores the importance of Benin cultural items as part of an existing culture. Western curators have no cultural connections or emotional links to these looted masterpieces and viewed them as works of great artistry, More importantly, they see these works as sources from which huge revenues can be generated by way of copyright and intellectual property rights, gate takings in museums, publications, sale and resale at auctions etc.

3. Should we thank the Galway family for keeping this ivory mask for this length of time? If it had been brought out too early it may have been sold for much less pounds like the auctions of other Benin works in the collection of British expeditionary team in 1899,1902 and 1930. Good timing, I must say. We now know five of such masks exist. Two in Britain, two in the US and one in Germany. At the time the Nigerian state asked the British for the ivory mask in 1977 for the purpose of FESTAC, it was unlikely that they were aware of the other three masks. This raises a fundamental question. How many more works are still being kept in hiding? When do we get an inventory of our looted artefacts from the new keepers of our cultural patrimony? When will the major museums disclose this information?

4. If the consignees decide to sell in private, we expect to see some of these pieces in the so- called universal museums that claim to hold looted works of others in trust for mankind. After all, have looted works on the ICOM red alert list not been purchased before for major museums? The drama is unfolding, and notes are being taken.

REPLY: Dele Jegede, 27 December 2010
I am curious regarding the premise Alexander Soifer’s note. He writes inter alia, “If all or part of creating an artifact was a slave labor, do we assign the ownership to slave owners and thus condone slavery?” This is, to me, a contestable premise. Yet, Soifer proceeds as on the assumption that his statement is a fact. Furthermore, he appears to question the legitimacy of the sovereignty of Edo peoples and, indeed, of the Nigerian nation. “Do the looted by the state from its citizens belong to the state?

What would be the result if the Nigerian court were to decide the issue? But do they have the right to decide?” Unless I’m missing the point, Sofer’s comments appear to be grossly misinformed. He asks, among other questions, “What gives today’s Nigeria the right to the Kingdom of Benin? I will really appreciate further expatiation on the motive behind these questions. Perhaps we may yet turn around and agree entirely with Soifer. Who knows, we may, depending on the persuasiveness of his argument, have no alternative other than invite Sotheby’s to take over whatever remnants of Benin art that are currently in the possession of the Nigerian National Museum.

The issues that Sylvester raised are quite apt. And I was enlightened by the fine and legal angle that Jonathan Fine presented in his response. And, by the way, here is a link that may be of interest to all those who are following this story. It is about Africans in London who are out protesting Sotheby’s move: http://www.saharareporters.com/news-page/massive-protests-nigerians-may-force-sotheby%E2%80%99s-stop-sale-benin-mask

REPLY: Alexander Soifer, 27 December 2010
On 12/26/2010, Sylvester Ogbechie wrote: “Having never heard of Alexander Soifer before reading his response to my posting on on H-Net, I find rather uninformed ...”
As such an avid user of the Internet, the Santa-Barbarian associate professor Sylvester Okwunodu Ogbechie could have googled me. However, in his shortage of reasoning (and no shortage of verbiage), he resorts to a personal character assassination, where everything goes, including “never heard.” The great anthropologist of Africa James W. Fernandez has “heard” of me, as so did those others who matter to me, and this is good enough.

Dr. Ogbechie is extremely verbose, and so I will be able to answer only a few of his statements - not because I agree with his other statements. Which laws should prevail? I realize that Mr. Ogbechie would have preferred a court in Lagos; unfortunately, this is not in his cards. As to me, I did not take sides, but to Jonathan Fine’s concern about Sotheby’s legality, I added an equal concern about the legality of Nigerian claims. I suggested that the international courts is the right place for the Nigerian and others’ claims, for example, the International Human Rights Court in Strasbourg, and/or other official international courts created for this purpose.

Main concern of Dr. Ogbechie is money. Just look, it is all about money, money, and money. Demands for restitution of cultural patrimony form the basis of some of the most rogressive human rights legislation of the 20th century; Ungodly sums of money are at stake here and the struggle over ownership of cultural patrimony currently operates as a zero-sum game in which there can only be winners and losers.The issue here is not mere repatriation of artworks, but ownership of the economic value and equity created by these artworks as a result of their current and future financial value.Artworks, which should accrue to the Benin people by right. In other words, we need to go as far back enough as is necessary to obviate the loss of value and equity arising from the relocation of the bronze artworks from Benin to the West.

My main concern is to preserve works of art and make them available through exhibits and publications (like Dapper Museum does). I have always argued that they are looted private property that rightfully belongs to the reigning king of Benin, Oba Erediauwa ... the artists who produced them were paid for their work. And I would argue that the kings did not pay enough to the artists, and the artists’ descendants and not the kings’ descendants should own the rights to their art, even—as Dr. Ogbechie likes to argue - if the artists agreed to receive very low if any compensation for their work. “The most base slavery is a voluntary slavery” (Seneka).

The Nigerian government has been demanding the return of Benin art from Western museums for over fifty years. And some bronzes are 500 years old.Usually, scholars are quick to deride newer Benin bronze artworks as “fakes” which helps to sustain and increase the value of those Benin bronzes that can be traced back to the 1897 plunder of Benin. No, “fake” is a deception, when a contemporary work is represented and sold as a 500-year old work. As a matter of fact, there is no Western nation (including the USA) that will grant a Benin person a visa merely to visit the British museum for the purposes of viewing the bronzes I finally agree with something: indeed, USA will not grant a visa to visit “The British Museum,” for it is—in London!

REPLY: Donna Pido, 27 December 2010
Can anyone on this list tell us what, if anything, is being done to -
1. Sensitize and influence the present ‘owner’
2. Influence Sotheby’s
3. Raise money to acquire the mask if necessary
4. Return the mask to Benin
5. Prepare for the safety and security of the mask once it is returned

REPLY: Perkins Foss, 27 December 2010
“The withdrawal of the sale of the Queen Idia mask by Sotheby was not determined by the International court but rather inspired by the court of public opinion” (from Peju Layiwola)
Has this happened? Did I miss the news?

REPLY: Carol Sicherman, 31 December 2010
I assume that someone else has already forwarded links to newspaper articles reporting that Sotheby’s has withdrawn the Benin mask from its February sale? If not: http://www.independent.co.uk/arts-entertainment/art/news/sothebys-cancels-sale-of-looted-benin-mask-2171125.html

REPLY: Julie McGee, 31 December 2010
Another clipping: From NY TIMES ArtsBeat: After Online Protest, Sotheby’s Withdraws African Mask From Sale, Kate Taylor, December 29, 2010
http://artsbeat.blogs.nytimes.com/2010/12/29/after-online-protest-sothebys-withdraws-african-mask-from-sale/

REPLY: Ensemble Soloarch, 31 December 2010
On a lighter note, anyone who read the Independent’s announcement of the mask’s withdrawal from sale may have noticed this grade1 oxymoron: “It has an amazing untouched surface which collectors love,” said the director of African and Oceanic Art at Sotheby’s, Jean Fritts. “Its honey colour attests to years of RUBBING with palm oil.”

REPLY: Chief Oscar Mokeme, The Ugo-Orji of Oba, 31 December 2010
Thanks Dr. Sylvester Ogbechie for bringing this information to light, while most so called “African art “scholars were busy trying to encourage this auction with disregard to the rightful ownership and the effects these stolen works have had on the Edo Kingdom and Nigeria as a Nation. The next step will be to return all those stolen goods back to Benin Kingdom.
Thank you very much.

REPLY: Alexander Sofier, 1 January 2010
Dear Fellows, a Happy New Year! I hear the the loud shouters alleging that they [sic] forced Sotheby’s to cancel the auctioning of the Beniin ivory mask. The announcement states only that “The consignors have withdrawn the mask.” Indeed, what were they to do? Let the sale go through? They would have lost the mask, and may not have gotten the money either if the proceeds were tied in courts for years if not for decades. Therefore the shouters will have to prove to us that Sotheby’s has initiated the cancellation. I am interested to know what has really happened, not the spin.

REPLY: Deborah Stokes, 2 January 2011
A call for proof of Sotheby’s initiating cancellation of the sale of the ivory Benin hip mask as a result of ‘loud shouters’ reveals a lack of understanding of the business of auction houses. Proof is implied – even without access to the original signed consignment agreement we know that as a publicly traded company on the NYSE and global corporation, Sotheby’s stock price is highly sensitive to controversy. They engage in public auctions, private sales, and art-related financing – and they advise their consignors.

I am certain that not only did specialist Jean Frits advise the consignors to reverse their decision to sell, but also the Directors of Sotheby’s ‘suggested’ (both to Jean and the consignors) cancellation of the sale and private contract with whatever seller’s percentage was initially agreed upon. Auction house consignor contracts are explicit in their Terms of Sale, and consignors will breech the contract if they pull the object before the sale. My hypothesis is that Sotheby’s and the owners of the Benin items negotiated a mutually beneficial agreement to stop the sale as a result of the ‘loud shouters’.

REPLY: John Picton, 3 January 2011
Peju Layiwola asks ‘when do we get an inventory of our looted artefacts’? But there is nothing secret about all this. An inventory was published by Philip Dark some thirty years ago. The location of almost all works of art from Benin City is published public knowledge. The argument in favour of repatriation is not helped by rhetorical questions and inaccurate data.

REPLY: John Otu, Department of Fine and Applied Arts, Federal College of Education,Zaria,5 January 2010
Getting an inventory is important but laying hold of what is available is still paramount. Perhaps, if lawyers can be got to recover these works it might go a long way in getting the ones available in museums. Vattel’s The Law of Nations published in 1758 pages 364, 367 and 368 along with The Hague Rules 1907 Articles 27, 46 and 56 will help reveal the possibilities of recovering these works.

Despite the fact that Napoleon increased the art collection of France through his conquest albeit why the Mona Lisa still remains in the Louvre, is not enough to justify why the works should not be returned to Benin. Taking an inventory will simply have to start from the Benin kingdom but was there a ‘catalogue’? They can work it so as to reclaim the stolen works.

REPLY: Christopher D. Roy, Professor of Art History, The University of Iowa, 5 January 2011
The Mona Lisa has nothing to do with it, nor does the art taken by Napoleon, most of which was returned to its owners in the years following 1815. Don’t muddy the waters.
From that most dependable of sources, Wikipedia: He [Leonardo] is thought to have continued to work on Mona Lisa for three years after he moved to France and to have finished it shortly before he died in 1519.[9] Leonardo took the painting from Italy to France in 1516 when King François I invited the painter to work at the Clos Lucé near the king’s castle in Amboise.

Most likely through the heirs of Leonardo’s assistant Salai,[10] the king bought the painting for 4,000 écus and kept it at Château Fontainebleau, where it remained until given to Louis XIV. Louis XIV moved the painting to the Palace of Versailles. After the French Revolution, it was moved to the Louvre. Napoleon I had it moved to his bedroom in the Tuileries Palace; later it was returned to the Louvre. During the Franco-Prussian War (1870–1871) it was moved from the Louvre to the Brest Arsenal.[11]

REPLY: Chika Okeke-Agulu, 5 January 2011
John Picton’s and Christopher Roy’s comments make clear the danger of confusing the substance with its shadow in the debate about looted Benin art. Anyone really interested in a catalog of what was taken from the Oba’s Palace in 1897 will have to do the necessary research in the relevant archives and, as Picton already noted, look at existing publications on the subject. Moreover, what is the value of laws that have since been superseded by many national laws and more recent international conventions?

REPLY: John Picton, 5 January 2011
Not least among the difficulties in furthering the possibilities of the return of Benin art to Benin City is the fact that this art cannot be returned in any literal sense to where it once was. That context no longer exists. The British military personnel kept no records of precisely where they removed material from, and there was (as far as I know) no inventory within Benin itself; and in any case the1897 palace was destroyed. If any works of art were returned it would be to a completely new context. This does not negate the moral argument in favour of return but it does constitute a problem that has to be thought through very carefully. In particular one has to think about just what that new context would be.

Source: H-AfrArts

See also for more background information on this website Queen Idia Mask's sale sets Sotheby's against art world

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