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:
24th 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consigned by the descendants of Lionel Galway which Sotheby’s had announced for auction in February 2011 have been withdrawn from sale at the request of the consignors.”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)
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.
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.
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 19th 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 …
… [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 …
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 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.
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. 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? - 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. 
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.
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?
 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.
 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.
 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?