Update V: On the Now-Cancelled Sale of a Benin Ivory Pendant Mask at Sotheby's

I suspect people are tired of hearing of the ‘Sotheby’s and the Benin Ivory pendant mask’ saga. Nevertheless, this is worth a quick mention here:

The case has finally made it into the international mainstream media! Yesterday, the UK’s Independent published an article which today has been quoted in the New York Times.

Meanwhile, the Nigerian Tribune reports that

There are strong indications that the Federal Government might have waded into the controversy surrounding the plan by Sotheby’s to auction some prized Benin artefacts, including a pendant mask of Queen Idia, that were stolen from the kingdom by British colonial officers.

The paper also suggests that

But, according to a source in the presidency, President Goodluck Jonathan had taken an interest in the matter. The president was said to have been following the development and had already initiated moves to get the stolen artefacts returned to the country. The source disclosed that President Jonathan had given instructions to the effect that no effort should be spared to get the Benin arts, as well as other such artefacts that symbolised the pride of Nigerians and their rich cultural heritage. The president also ordered that machinery should be set in motion to get the artefacts repatriated into the country.

Efforts by Nigerian government officials are only briefly mentioned in the article in the Independent when it quotes Orobosa Omo-Ojo, the Special Adviser to the Edo State Government on Arts, Culture and Tourism stating that

They [Sotheby’s and/or the Galway’s, I assume] should seek good counsel and refrain from selling the mask … Anything that makes them ignore this call [from] the Edo state government will [make us] use this as a starting point to protect our intellectual properties.

Beyond that, however, both the Independent article as well as the New York Times emphasised the activities of expatriate groups, in particular the Nigeria Liberty Forum, and informal social media alliances.

Probably as a result of the Christmas period, responses by academics continued to arrive in my inbox after Sotheby’s had already cancelled the sale. Most significantly for wider debates about repatriation, Peju Layiwola directly answered questions about the legitimate ownership of the artefacts removed from the palace in Benin in 1897 as well as arguments that throw into doubt the safety of these items if they were returned to Nigeria.

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. … 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 reigning 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.

On a completely different note – and I was trying to stay away from non-art related politics and news on this blog – but: those of you, who are praying, pray for a peaceful 2011 in Nigeria.

Update IV: On the Now-Cancelled Sale of a Benin Ivory Pendant Mask at Sotheby's

Okay, a final quick update: At Aacronym Ogbechi has just responded to some of the post on H-Net. Sadly he somewhat shares my lack of enthusiasm for Sotheby’s statement arguing that

… 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?

He finds some reason for optimism though:

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.

I won’t quote in any detail his responses so in particular Jonathan Fine and Alexander Soifer but encourage you to read his blog post instead (its too late and I have already spend for too much time on compiling the last post).

Footnotes

During the last days trying to follow the news about the now-cancelled sale of the Benin Ivory Pendant Mask currently in the ownership of the Galway family, I have stumbled across some useful blogs and write-ups for understanding some of the wider (legal) issues concerned. Among them, there are a number of blogs chronicling and commenting upon developments related to art, antiquities and the law beyond Nigeria and Africa (if anybody is aware of a blog particularly concerned with African cases pls. let me know. Although, of course, you may also want to keep an eye out for Ogbechie’s African Cultural Patrimony Campaign.).

Art Theft Central

Cultural Heritage in Danger

Culture in Peril

Illicit Cultural Property

Museum Security Network

The Art Law Blog

The Cultural Property and Archaeology Law Blog

These are in addition to Elginism and Looting Matters that I already mentioned before.

With particular regard to the artefacts removed from the Palace of the Oba in Benin in 1897 you may in particular want to read Dr. Kwame Opoku’s writings at Museum Security Network and in Modern Ghana (see this one on the previously named James Cuno or his direct response to Alan Behr’s review of Cuno’s book). It may be worth googling for his most recent contributions as Opoku appears to be one of the most outspoken supporters of the return of the Benin Bronzes but also other artefacts that have arrived in museum and private collections under controversial circumstances.

With regard to the legal situation, Derek Fincham provides a useful discussion (for the lay people among us) of the 1995 UNIDROIT Convention at the Illicit Cultural Property blog as well as in this paper. Elginism provides further links to the relevant UN resolutions. Meanwhile, Jonathan Fine suggested that those interested in the legal context may read the Altmann case in which the US supreme court ruled that ‘Austria did not enjoy immunity from suit under the doctrine of sovereign immunity for its expropriation of various paintings that were in the Belvedere Gallery museum in Vienna.’ He suggests it illustrates the efforts of the Altman family to ‘keep their claims to the art in question alive.’ http://supreme.justia.com/us/541/03-13/case.html

On a completely different note, I read with particular interest Nicholas Merkelson’s blog post on ‘subsistence looting’ at Culture in Peril from earlier this year. He rightly observes that it is one thing for archaeologists and anthropologists with their regular incomes and government grants to assert the importance of official and systematic excavations and documentations. It is a completely different case from the point of view of the usually impoverished and marginalised populations from among which ‘looters’ emerge:

The reality is that subsistence digging is most often carried out by refugees from civil violence and victims of economic despair. In developing countries especially, subsistence digging becomes a viable socioeconomic alternative to starvation for the rural poor. Their livelihoods sadly are hampered by land speculation and abuse (by corrupt political and military regimes), extra-local commerce, and a distinct lack of any political voice. The few dollars subsistence diggers receive from the sale of an artifact could easily buy their families such necessities as food, clothing, medicine, and security (not to mention is several times more than archaeologists are willing to pay them as day laborers on their sites).

Additionally, many indigenous groups—in Latin America and elsewhere—see themselves as the legitimate heirs to archaeological and cultural artifacts pulled from their land. They view these treasures as gifts from their ancestors, deposited in the ground by real or mythological patrons, to be harvested by later generations. The Belizean huecheros call their finds “semilla,” or seeds—planted by their ancestors to dig up and sell for money or for actual corn seed. These finds also provide subsistence diggers with a veritable link to the past, a link that is otherwise entirely ignored during archaeological excavation. In a way, archaeologists will treat the past with reverence but treat the descendants of that past like ignorant peasants, as if locals are better off not knowing their connection to the objects being pulled from the ground.

As I said in an earlier post, I haven’t yet quite got my head around debates about restitution of cultural property and/or looting. So, none of the above claims to be representative of the wider debates (though I got the impression that Opoku is an important contributors to these debates who anybody interested needs to read – including me) or by any means comprehensive. … Anyway, I leave it there for now and try to get back to the things that are closer to my own area of research …

Update III: Sotheby's Cancelled Sale of Benin Artefacts

I have to admit that I didn’t expect it. But, on Christmas eve Sotheby’s released the following statement:

24^th December 2010

STATEMENT REGARDING CANCELLATION OF BENIN SALE

“The Benin Ivory Pendant Mask and other items consigned by the descendants of Lionel Galway which Sotheby’s had announced for auction in February 2011 have been withdrawn from sale at the request of the consignors.”

Today, Kayode Ogundamisi, the signatory of the NFL protest letter to Sotheby’s released the following statement via Sahara Reporters.

The attention of the Nigeria Liberty Forum has been drawn to the cancellation of the Benin Idia Mask that was due to take place on 17 February 2011., which according to Sotheby’s press release was at the request of the consignor (Refer to link below)

http://investor.shareholder.com/bid/releases.cfm?ReleasesType=&Year=2010

We view this action by Galway family as a step right direction and we look forward to reaching an agreement with the family on how to ensure the mask and other Benin artefacts are returned to the rightful owners , that is, the Benin people of Edo State in Nigeria.

We can only imagine that this piece of good news is as a result of the collective effort of Nigerians and Africans as a whole, home and abroad. We note in particular the efforts of face book campaigns as well as numerous blogs and some mainstream media outlets as well as a number of legal practitioners in the UK

This is not to say victory has been achieved as the main objective is the return of the artefacts to the Oba of Benin and his subjects. We are also interested in the return of numerous artefacts of unknown whereabouts.

We shall communicate any new developments as they arise.

Wishing all a merry Christmas and a happy new year.

Kayode Ogundamisi

Convener - Nigeria liberty Forum

At the risk of sounding cynical, I guess, it speaks volumes that it wasn’t the auction house but the Galway family that decided to withdraw these pieces. While (at this point) there is no way of knowing the conversations between Sotheby’s and the family, the auction house thus avoided establishing a precedent that would have shown it vulnerable to public protest. Equally, in the absence of any public statement by the family, one can only speculate to the extent that the NLF campaign, voices of renowned historians of African arts or the efforts of Nigerian officials affected the family’s decision.[1]

With regard to the latter, Akin Ogundiran, Chair of the Africana Studies Department and Professor of Africana Studies, Anthropology & History at University of North Carolina, Charlotte noted on H-Net 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.

And, an article published by the Nigerian Observer suggests that the Edo State Government had

… called on the United Nations as a matter of public importance to intervene in the anticipated plans by the children of late lieutenant Colonel Sir Henry Lionel Gallwey, then Colonial Deputy Commissioner and Vice consul in the Oil Rivers Protectorate to auction the highly valued Benin Royal artifacts, come February next year. […] “We are calling on the United Nations to please show good example, because what the British did to us, seems like what Saddam Hussein did in Kuwait and if they could try in Saddam Hussein and he was hanged, we are equally calling on them to identify the grand children and children of the late lieutenant Colonel Gallwey and they should be brought to book?

He therefore called on the children of the late lieutenant Colonel and Mr. Jean Fritts, the Director of African Oceanic Arts at Sotheby’s London, to refrain from any criminal act in regards to their plans to auction a sixteen century Benin Ivory pendant mask said to be one of the last great masterpieces of Benin Sculpture remaining in private hands in February 2011.

“They should seek good counsel and refrain from selling the mask. Anything that makes them to ignore this call, Edo people, the Edo State government will use this as a starting point to protect our intellectual properties “ said Omo-Ojo.

I have not found any reports suggesting the extent to which these official statements influenced the Galway family’s decision. Ogundiran, however, strongly doubted their ability to pressurise Sotheby’s and the Galways to abandon the sale. Either way, I for once remain curious, whether and when the pieces will quietly reappear for auction at Sotheby’s, another of the auction houses or (more secretively) in a specialised art dealers’ catalogue.

Meanwhile with regard to wider debates about ownership of artefacts produced in and by Africans ‘collected’ and removed during the colonial period or under other controversial circumstances, the now cancelled sale of the artefacts from Benin has generated some opinion across the net, some of which maybe worth reproducing here.

The Legal Situation.

Jonathan Fine, who currently undertakes a PhD with Chika Okeke at Princeton but has previously worked as an attorney in Washington and New York noted onH-Net’s African Art section that in principle …

… 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). … 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. …

With regard to the Galway family’s right to the artefacts, he noted that by the late 19^th century, the

… 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.

[Although, does anybody have further information about the campaign for restitution started in 1937 by Oba Akenzua II mentioned in the letter of protest I reproduced in an earlier post?]

According to Fine, then, in legal terms, ownership to stolen objects can be obtained under certain circumstances.

… 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 …

Also,

… [i]f 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.

The Legal vs. The Legitimate/Moral.

In response, Ogundiran rightly raised the difference between what is legal and what can be considered legitimate.

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. […] … 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 …

In this regard, Looting Matters in a post already dating to 2008 quoted Kwame Appiah[2]

Some of the heirs to the kingdom of Benin, the people of Southwest Nigeria, want the bronze their ancestors cast, shaped, handled, wondered at. They would like to wonder at—if we will not let them touch—that very thing. The connection people feel to cultural objects that are symbolically theirs, because they were produced from within a world of meaning by their ancestors—the connection to art through identity—is powerful. It should be acknowledged. The cosmopolitan, through, wants to remind us of other connections.

The Politics of Identifying Legitimate Owners of Cultural Patrimony.

In addition (and he formulates this far better than I did in question form in my first post), Fine raised the question of who the legitimate Nigerian owners of the Benin artefacts may be:

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.

Also (and again, far more skilfully formulated than by me), the discussion on H-Net raises some of the questions that inform some of my unease with calls for restitution. Again, Fine argues that …

… [c]ultural 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. …

Also, as Flynn at Art Knows noted, despite the substantiated campaign it may be worth remembering that not everybody in Benin necessarily shares the aims of the restitution campaign. Flynn here quotes Ronald Hazoume, a citizen of the State of Benin, rather than the Benin Kingdom. However, I read a comment to the same end at the Nigeria for Nigerians Facebook page in response a posting linking to the NFL’s Facebook Group and Petition.

I will advice that you do not push for the artefacts to be returned to the present Edo State, else it will be on the next flight to the same auctioning house or another one, this time by the illegally legalised Politicians of Edo State. The asking amount will be too tempting that you will only hear that it was stolen when the security staff went to pee.

Another commenter expressed his support for the campaign but questioned the priorities is reflected:

Sounds good letter to me even though I am not convinced this is a priority cause to fight. I must admit that some of the comments here are quite compelling, but I am still finding it difficult to see how this should really border us more than what our own people are doing to us today. I remain of the belief that we must fight our internal/current enemies first before going after our external and historical enemies.

A similar sentiment is expressed by this comment that has been reproduced at the Dialogues blog (it is rather long but I’m not sure how to best shorten it further).

So some oyinbo person wants to sell his loot and we are about to crap in our pants? Who cares? Na wa O! Is THAT the only thing they stole? Why are we now wetting our pants over ONE art piece? A pox on all their houses. I am a descendant of the Benin empire. I don't know of any Nigerian that is not upset that these artifacts were looted and moved abroad. Having said that, it is my fervent prayer that those beautiful pieces stay away from Nigeria for now. I will personally stone whomever has the temerity to return the pieces. In fact enh, if I was the artwork I would kick against being returned to the "museums" of Nigeria. I would even beg for political asylum. Why would I substitute a life of lush living behind climate-controlled glass, oogled by nice people who know art, for a life of guaranteed misery on some God-forsaken "museum" in Nigeria? The art pieces will lie somewhere dirty at the mercy of filth, dust, neglect, corruption, etc. The curator would steal millions of dollars allocated for their annual upkeep and who knows, one drunken night, the "head of state" du jour might give them to his Indian mistress as a gift, after 1 minute of sex. The artifacts will come back home but not yet. I am not even sure to where self, the old Benin Kingdom is no more. Who will accept the art on the kingdom's behalf? […] Are these busybody petitioners just now noticing that the piece has been missing? Which one concern them inside? The courts should ask them which part of the art work belongs to them. Shebi it is only 3 million pounds that they are crying about. Ibori used to steal that every day. Every day. And you, Kenn[3] have been silent about that, well you will say oh yes white folks steal also! This group of powerful intellectuals could start a letter writing campaign to protest the fact that fully a quarter of our budget goes to supporting the legislative branch (or something similarly outrageous). I will sign that petition. Kenn how many of you have signed a petition against the wanton abuse and murder of the "witch children" of Nigeria? That I will sign. Kenn, I have an idea. Let us start a petition against the West. Dear West, do not allow any penny to leave Nigeria (use Nigeria as a test pilot). That is, they may steal but they must spend the money on and in Nigeria. Do not permit any of our bastard leaders to go abroad for "medical attention!" Now you are talking. I will sign that one. To hell with the mask. Keep it in Europe. Have a great life, mask. Those of us stuck in Africa envy you your life!

Having said this, the majority of comments I have read there and elsewhere strongly supported the campaign to reclaim these artefacts for the Kingdom of Benin and/or Nigeria.

On a different note, Soifer Alexander, among others, problematised the social relations that defined the artefact’s production.

If all or part of creating an artefact was slave labor, do we assign the ownership to slave owners and thus condone slavery?

With particular regard to Benin, Ogundiran refutes the notion that Benin’s wealth was founded upon slave trade or slave labour:

Benin contributed the least to the Atlantic slavery in the entire West African Atlantic seaboard despite the facts that with its powers and military might it cold have become the main mart for eslaved captives. Its lukewarm attitude towards human trafficking was unprofitable to its European trading partners … 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 marginalised people in Benin but Benin was never a slave based society …

Nevertheless (and maybe as the result of growing up in East Germany), I have sympathies for the wider question raised by Alexander. But, of course, once raised, this question needs to be extended to all artefacts financed through the exploitation of labour. Most obviously, how does it relate to artefacts and buildings enabled by wealth acquired through participation in the international slave trade? But of course, it could be extended to the wealth and collections of almost all royal dynasties and affluent families worldwide, no? Or, as an anonymous reader of Ogebchie’s blog commented …

… some of the bronze used to make these works are at least proceeds from slave trading. However, while it may undermine Benin moral high ground, it does not undercut it. Using the same logic, Britain should cede all the lands and resources it acquired through slave trading and colonial conquest. The USA should give up the country to Native Americans and relocate everyone back to their countries of origin.

Hitting the nail on the head, this comment highlights another recurring themes of the debates: the question why different measures appeared to be applied to the global north and Africa.

Double Standards.

Many debates about reparations for Africa in acknowledgement of the damages done by the international slave trade or regarding the restitution of cultural artefacts highlight, rightly or wrongly (I am in no position to assess their validity), assert that Africans are regularly denied rights granted to other states and communities. Within the context of the recent campaign against the sale of the Benin Ivory pendant masque at Sotheby’s, this issue was raised most prominently by Ogbechie:

All across the world today, many stolen artworks are being repatriated to their countries of origins. No one is asking the cultural owners of these artworks to pay for the privilege of retrieving their ancestors’ properties. Therefore, the relevant issue is whether Africans have any legal rights to their lives, natural and cultural resources. At what point does the brazen dispossession of Africa become a significant political, economic and moral issue? The Sotheby’s sale is part of a broad disregard for the very real impact of dispossession on the reality and fortunes of black Africans today. There is no justice here and it does not appear that black Africans or their descendants will be afforded any kind of legal justice in the prevailing context of white Western power. And yes, this is clearly a racial issue. […] It is therefore time for all Africans who have the resources to contribute to a massive effort to bring the global legal system to bear on these institutions who traffic in stolen African cultural patrimony. There are already precedents: the Holocaust reparation legal challenge is a clear precedence; so is the Native American Graves Repatriation and Protection Act. The issue of African cultural patrimony is an urgent human rights issue.

In particular, the comparison to the restitution of art works to survivors of the Holocaust and their families has been reiterated by several other authors. Thus Chika Okeke opined that

Frankly, I see no logical difference between the fate of these works taken from the Oba of Benin's private collection, and the works seized from their Jewish owners by the Nazis.

Carmen McCain asserted that

If art looted from families during the Nazi era in Europe is being returned to the descendants of those from whom it was stolen, then there is no excuse not to return these valuable cultural artifacts back to the palace in Benin.

In response to Ogbechie’s post at Aachronym, Michael Kirkpatrick argued that

I find it extremely hypocritical that the art world is discussing how to return artwork that was stolen by the Nazi’s during WWII, but they don’t see the parallels with African items stolen from the continent by “explorers” and “collectors”.

I do not have any legal background. But it may be worth noting (especially as one of the major collections of artefacts removed from the Oba of Benin’s palace in 1897 is in Britain and the Galway family is British), the UK’s Holocaust (Stolen Art) Restitution Bill. It explicitly provides for

‘the transfer from public museum and gallery collections of arts, artefacts and other objects stolen between 1933 and 1945 by or on behalf of the Nazi regime, its members and sympathisers; to provide for the return of such artefacts and objects to the lawful owners, their heirs and successors; and for connected purposes.’

As I mentioned in an earlier post, I am not quite sure why the same principles that apply to art works expropriated by the Nazis should not apply to artefacts illegitimately removed from African or, for that matter, other non-‘Western’ contexts.

Of course, as Fine noted, ‘legal norms …concerning looting in war between European states [were] not universally applied to looting carried out in Africa, Asia, the Levant, and South America,’ clearly reflecting inequalities of power.

In addition, I suspect that one of the issues here is the almost universal acknowledgement of the Holocaust as an outstanding crime against humanity, an interpretation that is explicitly shared by the Third Reich’s legal successor, the Federal Republic of Germany. By contrast, a similar official acknowledgement of the crimes of colonisation in Africa and elsewhere by the former colonial powers is still lacking.[4] A different argument is implied by Ogbechie when he discusses the complicity of historians of African arts who overwhelmingly continue to attribute artefacts to social and cultural groups rather than individuals. Art works expropriated by the Nazis are most commonly returned to individuals, families or institutions. However, the artefacts removed from the palace of the Oba of Benin in 1897 could clearly be argued to have been owned by the Oba rather than an ill-defined social or cultural group.

However, beyond the comparison with the repatriation of art works expropriated by the Nazis to their individual owners, European states have, sometimes successfully, advanced claims for restitution on behalf of institutions within their sovereignty. To return to the World War II context, Germany has claimed art works looted by Russian troops (among others, I do not know how these issues have been handled with the other allied powers). In 2007, Germany issued a catalogue of missing art works in a push for their return. I do not know whether the fact that most African states existed by the time the artefacts in question were produced and/or removed should make a difference here. Surely, in the same way that Germany claims legal successorship of the Third Reich and thus legitimates its claim to art works removed from its institutions during or in the aftermath of World War II, an argument could be made that the Federal Republic of Nigeria is the legal successor of the colonial state which (for the sake of argument) claimed legal succession of all pre-colonial political entities including the Kingdom of Benin. Hence, why should Germany be able to make claims for the restitution of art works but not Nigeria on behalf of the Royal Court in Benin?[5] - Although this, of course, takes us straight back to questions of who the contemporary legitimate owners are. - Having said this, negotiations between Germany and in particular Russia in this regard have not resulted in the return of all ‘missing artworks’ nor have such claims been undisputed. [6]

I’m not quite sure where I’m going here with my argument(s). Maybe I’m trying to suggest that mainly ‘yes,’ Ogbechie is right, debates about restitution of artefacts reflect wider imbalances of power that extend beyond the arts (although I am not sure whether I’d really qualify this as institutional racism as he seems to suggest). But, somewhat also ‘no,’ claims to cultural heritage, even within Europe, even where they are covered by laws regulating war boot, are not that straightforward either. Which is why the unease with questions of restitution I expressed in my first post on the topic extends far beyond the recent campaign against the now-cancelled sale of the Galway’s collection at Sotheby’s in February 2011.

Within the recent debate about the Galway family’s rights to the artefacts removed from the Palace of the Oba of Benin in 1897 by their ancestor, broader arguments about world heritage and their hypocrisy also resurfaced. It was briefly raised by Michael Kirkpatrick in response to Ogbechie’s blog post

The question that I ask educated people in the western art world is this: “What is the difference between art and artifacts?”. Art is created by artists. Artists have names. Usually there are no names associated with any of the African masks, carvings, baskets, or pottery that stereotypically get exhibited in American art galleries. Artifacts have cultural, historical, and educational value. That is why they should be in a natural history museum if they are to be exhibited anywhere. My goal is to see more contemporary African art celebrated and appreciated.

However, I do not recall having read anybody else commenting to this end within the last days’ debate. I guess, Chika Okake rightly observed that

It is one thing for the likes of James Cuno at the Art Institute of Chicago to continue arguing against the possibility of repatriating art works plundered by European powers in the age of colonialism but that have found their way into the so-called repositories of human civilization; it is another for the family of this plunderer to bring out the stuff their ancestor stole a few generations ago from wherever they hid them, in the hope of making a fortune.

Hence, this was what the thrust of the discussion focused upon …

I assume that this will be my last post on this issue for now. Meanwhile, it looks as if the Facebook group African Cultural Patrinomy started by Ogbechi may evolve into an interesting source for all things related to African artefacts and questions of legitimate ownership and as I mentioned before, its always worth having an eye on blogs like Elginism and Looting Matters.

---

^[1] Tom Flynn at Art Knows speculated whether the controversy was possibly anticipated by the Galway family:

Sotheby's usually disperse ethnographic material and 'tribal' art such as the Benin masks through their Paris salerooms, but it seems that Galway's descendants requested that Sotheby's sell them in London instead. Did they fear a similar campaign to that which greeted the Chinese Zodiac bronzes?

[2] Whose lecture on Cosmpolitanism – Ethics in a World of Strangers can be watched on UCTV, btw.

[3] Kenneth Harrow, Professor of African Literature and Cinema at Michigan State Uni, who forwarded the NLF protest letter to the USA-Africa Dialogue Group.

[4] Germany, for example, still refuses to officially acknowledge responsibility for the Herero and Namaqua Genocide in present-day Namibia. The main line of argument I am familiar is that the current German state does not consider itself a legal successor to the German Empire under the House of Hohenzollern, although this is disputed.

[5] I have read an argument along these lines somewhere but cannot remember where – so my apologies to the original poster for not acknowledging their contribution here.

[6] Fine seem to indicate likewise when he asks whether

… [f]or instance, to be provocative, what real claim based on "cultural heritage" can a country 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?

Update II: A Quick Interim Report on the Upcoming Sale of Benin Artefacts at Sotheby's

With Chika Okeke today another prominent historian of African arts has used his blog to intervene into the debate and support the campaign to stop the sale. He argues that

It is one thing for the likes of James Cuno at the Art Institute of Chicago to continue arguing against the possibility of repatriating art works plundered by European powers in the age of colonialism but that have found their way into the so-called repositories of human civilization; it is another for the family of this plunderer to bring out the stuff their ancestor stole a few generations ago from wherever they hid them, in the hope of making a fortune. Do they think that waiting 103 years after the theft would make the works legally theirs? Frankly, I see no logical difference between the fate of these works taken from the Oba of Benin's private collection, and the works seized from their Jewish owners by the Nazis. This Sotheby's auction should present a good test case for the long-awaited process of righting a terrible wrong done to the grandfather of the present Oba of Benin by the British imperial regime.

He also links back to a post he published two years ago on the occasion of the showing in Chicago of the Benin—Kings and Rituals: Court Arts from Nigeria curated by Babara Plankensteiner (here Tam Fiofori’s account of meeting the Austrian curator) and originally held at the Museum für Völkerkunde—Kunsthistorisches Museum, Vienna. In that post, he reminds us of the longstanding campaign for the restitution of the artefacts removed in 1897 headed by the current Oba of Benin.

I regret though that nothing will be heard on this side of the Atlantic about the passionate plea made by the Oba of Benin during the opening of the show in Vienna for meaningful, good faith discussion about the possibility of loaning some of the works in European collections to the Palace as a compromise solution to the thorny, complex question of ownership of the bronzes most of which were looted by British soldiers (of fortune!) in 1897 during the so-called Punitive Expedition. In his Vienna speech, the Oba made it clear that though the Palace is the rightful owner of the objects, it recognizes the irreversible(?) history of their removal and incorporation into national, public and private collections in the West, and is not calling for their permanent return to Benin (possibly because there are so many national and international legislations and political imperatives that make such talk all but academic. At least for the moment!). Alas, because of the immense economic and symbolic value attached to these materials as objects d'art, but also because of enduring anxiety of loss people feel when they claim ownership of something that came into their holdings as a result of their ancestors' sordid actions, the Oba's proposal will never reach the ears or assail the political consciences of the Western "owners" of the Benin treasures.

Scholars of Africa and African arts have also more or less successfully raised the issue in other forums.

Update: A Quick Interim Report on the Upcoming Sale of Benin Artefacts at Sotheby's

At Aachronym, Ogbechi has just weighed into the debate on the upcoming sale at Sotheby’s with a very well argued post. With regard to the legal status (the legal rights of the Callwey’s having been questioned in some post in the various forum discussions, his emphasis):

The Benin kingdom and other wellwishers have mounted various legal challenges to the ownership and sales of Benin artworks by various Western institutions. So far, all these challenges have been dismissed without being given a proper hearing. I have reviewed some of these challenges and the possibility of bringing a new legal challenge through American courts and found that it is quite impossible to challenge these matters in court. The legal process here is very expensive and the barriers to getting your day in court are often too high to bear.

[…]

All across the world today, many stolen artworks are being repatriated to their countries of origins. No one is asking the cultural owners of these artworks to pay for the privilege of retrieving their ancestors' properties. Therefore, the relevant issue is whether Africans have any legal rights to their lives, natural and cultural resources. At what point does the brazen dispossession of Africa become a significant political, economic and moral issue? The Sotheby's sale is part of a broad disregard for the very real impact of dispossession on the reality and fortunes of black Africans today. There is no justice here and it does not appear that black Africans or their descendants will be afforded any kind of legal justice in the prevailing context of white Western power.

He situates those within the wider political, economic and cultural relations between African countries and the global North. In particular he highlights the contribution of historians of African arts in sustaining myths that undermine African attempts at restitution.

I think the greatest error that has been made in scholarly studies of African artworks and cultural patrimony is the pervasive idea that African artworks are products of nebulous “community action”. Artworks from Africa are always stripped of their links to particular individuals and economic contexts by their identification as the product of a group ethos. The Benin people did not create the artworks in question here: the pectoral masks of Iyoba Idia were created by specific Benin kings as part of the state’s political and economic obligations. It was stolen from the bedroom of Oba Ovonramwen in 1897. For over six hundred years, Benin kings spent huge portions of the national wealth supporting the creation of lavish artworks and sustaining the specialized guilds that made these artworks. You can still see descendants of the guilds in Benin. African artworks were commissioned by various individuals and institutions, paid for in very real economic terms, and then incorporated into the cultural equity of the individuals and institutions that commissioned them. These artworks are not random creations: they were part of complex systems of knowledge management and economic exchange. Their plunder left their owners significantly poorer.

Now I have to ask those of you who know better: Is part of the difference between African restitutions claims and those by the descendants of German Jews, among others, that our legal systems better cater to the interests of individuals rather than ethnic and cultural groups? And, is he right to identify the major reasons behind the different rates of success of the majority of African claimants for restitution as opposed to, say, the Egyptian government in prevailing racism? Or is the Egyptian government providing greater support for Zahi Hawass’ efforts?

Via H-Net and Facebook Ogbechi has started to actively engage in the campaign. The following draft letter of protest has been suggested by another Facebook user:

Dear Heinrich Schweizer,

On February 17 2011, Sotheby's will sell a rediscovered 16th century Benin ivory mask as well as other rare works from the Kingdom of Benin in Nigeria consigned by the family of a key participant in the controversial 1897 Punitive Expedition.

However the movement for repatriation of these items started as far back as 1937 when Oba Akenzua II, grandson of Oba Ovonramwen from whose palace the whole items were looted in 1897, asked the British Government for a return of stolen art. Since then the struggle has been on.

Stolen art from Non-African or European origins are often returned and with apologies. Why is the case of these Nigerian sculptures and bronzes different?

I completely oppose Sotheby's selling of stolen Art from Africa.

You are being asked to kindly STOP selling stolen African Art and in particular to kindly keep your hands off arts and artefacts stolen from the controversial 1897 Punitive Expedition all of which are still very much in dispute.

Signed on this day,

_________________

Thursday December 23, 2010"

Schweizer is Sotheby's Department Head of African and Oceanic Art in New York.

A Quick Interim Report on the Upcoming Sale of Benin Artefacts at Sotheby's

It is extremely difficult to obtain an object without at least resorting so some kind of violence: I believe half your museum is stolen.[1]

I admit to a certain unease about discussions about the restitution of artworks.

International conventions provide a framework against which to judge contemporary transactions and I tend to consider the arguments for the return of artefacts ‘acquired’ within contexts of war and colonial occupation overwhelming.

At the same time, some of the arguments for restitution leave a bitter taste behind.

The reasons for this may seem abstract to those of you deeply engaged in the case for or against restitution of any particular item – and, yes, I have been recently repeatedly told off by a temporary flatmate of being an undecided relativist. All that said, it appears to me that the case of ivory masques from Benin from Galway estate again raises wider questions about what constitutes legitimate forms and contexts of acquisition – who defines at any particular time what is legitimate? by which standards do we judge past acts of collecting, contemporary or those of our own time? -, whether and under which circumstances an artefact can become of a particular place or people even if it was acquired under circumstances we today consider illegitimate, and – considering that artefacts’ biographies may involve several owners and locations from which they were removed under widely different circumstances – the means by which one identifies an original and/or legitimate owner. Who do we consider the owners of cultural artefacts anyway? The individuals who originally produced, commissioned or in any other form we consider legitimate acquired the artefact and their descendants? The wider social and cultural groups to which they belonged? The states that currently govern the geographical area in which they lived? How far back into history do we want to ask these questions and which kind of documentary evidence do we accept to proof the (il)legitimate acquisition of an artefact? … Unlike self-aware creatures including humans, artefacts do not generally have interests of their own (although I suspect that this case may be made within some religious frameworks). Instead, humans do use them for their own interests, some of which we may consider more legitimate or worthy than others. So, to which extent should we consider in debates about restitution the intentions and motivations of all parties involved? And, who is ‘we’ anyway?

And, on a completely different note, how do these debates relate to contemporary droit de suite legislations that grant artists certain rights when their works are resold? In other words, even if we consider the current ownership of controversial objects legitimate and dismissed calls for restitutions, what are these owners’ obligations towards the communities from which these objects originate when the objects are resold?[2]

I do still battle with these questions and as yet have not found the time to read further into these issues. And, maybe James Cuno’s book is worth reading for the sake of understanding the wider debates. However, by means of recommendation, Elginism is a useful blog chronicling arguments regarding the restitution of contested artefacts from across the world (and largely taking a pro-restitution stand while Cuno rejects such claims as ‘dubious and dangerous politicization of antiquities’). With particular regard to African contexts, earlier this year Critical Interventions announced a special issue under the title Who Owns African Cultural Patrimony.

As for the upcoming sale at Sotheby’s, I’m still looking for more information.

What is available so far suggests that it is being sold by the descendants of Lieutenant Colonel Sir Henry Lionel Gallwey (Galway since he changed his name in 1913), a former deputy commissioner and vice-counsel with the Oil Rivers, later Niger Coast Protectorate. According to the description of a photograph of the Oba of Benin Ovonramwen (d. 1914) in the catalogues of Cambridge Library, Gallwey ‘managed to persuade Ovonramwen to sign a treaty placing Benin under British protection and promising to suppress the slave trade.’ While the rest of the entry reflects a biased, British colonial narrative, this suggests Gallwey’s close involvement in the events that eventually led to the punitive expedition in 1897 that resulted, among others, in the removal of the artefacts in question from the palace of the Oba. (A more comprehensive biography of the man can be found here and, if you ask me, he doesn’t come across as a particularly likeable person.) It appears that the masque has been in the possession of the family since Gallwey ‘acquired’ it in the late 19^th century (although, questions have been raised and challenged about the piece’s history and relation to other pieces currently in museum collections). In February 2011 the family will auction the 16^th century ivory pendant mask for an estimated £3.5m to £4.5m ($5.4m to $ 6.9m) alongside other artefacts from Benin, according to the Financial Times.

Since I first read about the upcoming sale at Sotheby’s a few days ago, Sahara Reporters and Naijablog have brought the issue to the attention of Nigerian communities at home and abroad. As a result, the news of the sale have spread. The UK based Nigeria Liberty Forum has taken up the case. They have sent a letter of protest to Sotheby’s (quoted here after Sahara Reporters, I added a link to the convener's blog), an online petition and a Facebook group have been set up:

Nigeria Liberty Forum
3 Birkbeck Street London E2 6JY
● Tel: + 44 203 015 0739
● Mobile: + 44 798 421 2553
nlibertyforum@gmail.com
info@nigerialibertyforum.org.uk
www.nigerialibertyforum.org.uk
23rd December 2010-12

Ms Helen Collier
Sotheby's London
34-35 New Bond Street
London W1A 2AA

Dear Ms Collier

Re Auction of 16TH Century Benin Ivory and Other Benin Artefacts.

The Nigeria Liberty Forum is a UK based Nigerian pro democracy group of sympathisers and volunteers who share a passion for grassroots political engagement and participation. We amongst many other activities Seek solutions to challenges with other UK based African groups and institutions; Protecting the rights of Nigerians in the UK and the Diaspora; Encouraging Nigerians in Diaspora to engage and participate in the Nigerian political process and Partnership work with individuals and groups in the fields of Education, Charitable causes and Community Development.

We have successfully run many campaigns to further our cause. You may wish to visit our website for further details.

It has come to our attention that 6 pieces of Benin artefacts are to be sold at your auction rooms on the 17th of February 2011 and accordingly we would like to register our protest that precious pieces of our Nigerian heritage are to be sold to the highest bidders.

We are aware (and so should you) that these artefacts were forcefully taken from Nigeria in 1897 when the British invaded the Benin empire and request very firmly that your organisation should not assist and or collude in the appropriation of such.

It is a shame that in this time and age individuals continue to plunder and abuse the culture and heritage of a defenceless people just because they can. There is simply no legal or moral basis for the Galway family to lay claim to the Benin masks and to go on to profit from their sale is reprehensible and unconscionable.

To this end we request that you withdraw the items from sale forthwith as the true ownership is far from settled. We would also like to request that you go a step further and advise your clients to return these items back to the Nigerian people where they rightfully belong. It is akin to the selling of the Egyptian mummies, and should not be allowed.

We are in the process of mounting legal, diplomatic and or political challenges to the sale of these cultural artefacts and we are sure your organisation does not want to be embroiled in the resulting fallout this will surely create. The rape of Africa and plundering thereof has gone on for far too long and still continues, aided by institutions as yours.

We have also created a petition to stop this sale from going on at the URL below and if necessary mount a physical protest, which as a going concern may be damaging to your reputation from the incessant news coverage that this will bring.

http://www.ipetitions.com/petition/benin_mask/signatures

We do not doubt your integrity and we know Sotheby will do the right thing and withdraw the said items from sale.

These artefacts were acquired illegally, by theft, and they are now being put up for sale illegally. The artwork is an important cultural heritage of Benin people, in Nigeria, and it is part of their history, and should be returned forthwith.

It should also be noted that the said masks have been subject of historical study by the Open University, which has produced a clip about the theft of these artefacts. Refer to United Kingdom Open University link below.

Yours sincerely

Kayode Ogundamisi – Convener

NLF

I am amazed by the attention the upcoming sale has generated and the ability of the object to catalyse and mobilise enduring sentiments of historical and contemporary injustices.

However, there has been an active campaign for the restitution of objects removed from Benin in the aftermath of the punitive expedition in 1897 already before the news of the February 2011 sale broke (some of which has been documented by the Elginism blog I mentioned above). Recently, the case has been highlighted by Nigerian writers on the occasion of the inauguration of the new Acropolis Museum in Greece in Summer 2009 (see Tajudeen Sowole’s article in an earlier post on this blog or here, or see S. Okwunodu Ogbechie’s blog entry here) as well as the Peju Layiwola’s travelling exhibition (see here for a review of the exhibition) and publication (see here for a review of the book).

I am curious if and how Sotheby’s will respond to the current campaign (What are the current whereabouts of the Quing bronzes after this Chinese bidder refused to pay Christies citing the controversial status of these artefacts?) and whether the current publicity will further the broader campaign. Returning to the art historian’s chip on my shoulder, I also wonder whether these debates contribute to or distract from broader critiques of global inequalities.

On a final note, does anybody have further information about the detail sof the agreement between the Nigerian government and the Musee du Quai Branly regarding the controversial Sokoto and Nok terracotta sculptures?

---

^[1] From a letter by the German traveler Richard Kandt to Felix Luschan at the Ethnological Museum in Berlin, which, incidentally, owns the second largest public collection of artefacts from Benin, written in the very year of the punitive expedition that preceded their removal from the Oba’s palace. The quote was unearthed by Chika Okeke

[2] This issue is also implicitly raised here.