A-ARTs: For illicit holder, original owner of looted art, legal windows broaden

Iyoba or Queen Mother, a Benin origin sculpture (ivory pendant, 16th century) acquired by The Met Museum, New York. Pic: The Met.

Twice, in less than one year, separate courts in U.S. have affirmed the powers of countries to assert ownership and control of suspected illicitly acquired art. Also, in Europe, a post-war chatter set up to track and recover collections looted by the Nazi is still effective till date.

Interestingly, the law — in the separate US situations — has been activated to either strengthen holders of illicitly gotten art or stopped similar acquisition from being sold. In either case, a sovereign state, irrespective of being a claimant or alleged illicit holder, emerged winner. The law, from all indications, provides immunity for sovereign states against litigation over acquisition of art.

For African countries struggling to get their looted ancient art returned, the legal windows may either work for or against restitution. Examples of such legal windows not yet explored by African countries happened in the last one year. On June 9, last year, auction house Sotheby's suit against Greece over the latter's halt of 8th-century BC Greek equestrian statue headed for the hammer was ruled in favour of the country. In May 2018, the Greek government claimed that the sculpture, estimated for $150,000- $250,000, should be returned to the country. Sotheby halted the sales as a result of Greece's claim, but went to court and eventually lost the case.

Under a different circumstance, another country, Germany, on February, 3, 2021, got judgement against heirs of Guelph Treasure. The heirs claimed that the sculptures were illicitly sold to Germany's Kunstgewerbe Museum, Berlin in 1935. In the case, media reports said the U.S Supreme Court invoked what is known as Foreign Sovereign Immunities Act (FSAI). It's an Act that protects foreign countries from lawsuits in the US. In Europe, both sovereign state and private persons have protection under Monuments, Fine Arts and Archives, a collective that was created in 1943 and still potent, currently in protecting art looted during and after WW-II.

Essentially, Europe and the U.S have the largest concentrations of controversially acquired art of African origin of which no owner country has made any legal attempt to recover. Yes, some artefacts of African origin have been returned without legal process. It's important to note that such situations occured for obvious factor: the artefacts were non-iconic, perhaps with unpopular provenance in status, hence returned voluntarily by the European holders.

Constantly, quite a number of African art, some of tribal Nigerian origins, and with questionable provenance have been successfully sold openly in Europe and the U.S without any challenge from supposedly owner countries. As regards legal action, what exactly were the African countries, Nigeria inclusive, afraid of? If losing a case against unauthorized holder were the fear, it would have made no difference, anyway; you couldn't have lost more than decades that the art has remained under incarceration in foreign lands.

In either commercial or critical appreciation, provenance is the most important strength in valuating worth of an art. Within the context of the role provenance plays, art of African origin, held in Europe and the U.S under authorized status can be subgrouped into two: most wanted and non-iconic.

Almost daily, auction houses, art dealers and collectors trade in non-contemporary art of African origins across the world. Different auction houses label them under such sales as African and Oceania. Most of the art pieces don't have details such as period of production and well defined provenance. The identity of such art are mostly attached to either the last holder or any previously famous dealer or collector.

While it is commendable to hear that the Ethnological Museum and University of Aberdeen plan to return illegally acquired Benin cultural objects, it's also important to note that the sharp difference in provenance between the Idia mask and hundreds of objects to be returned by the mentioned holders above is a key factor. Some directors and art managers in Berlin, for example, must have thought: 'What's the need of keeping hundreds of sculptures that have no strong provenance value?' And in the UK, all the pieces being slated for return are weak in provenance as well. In fact, the Benin bust bronzes at Church of England have no illegality or any controversy attached. They were "given as gifts to then Archbishop of Canterbury Robert Runcie almost 40 years ago by His Excellency Chief (Prof.) Ambrose F. Alli and the University of Nigeria, Nsukka," the holders explained.

Irrespective of the value, in critical or commercial status of the mentioned artefacts to be returned soon, it's a positive development for Nigeria. However, I have my doubt if any of those cultural or religious objects will ever get any strong provenance post-restitution. Long period of controversy is the energy that drives provenance strength of most art, particularly those of ancient Africa. Nearly all the art being planned for return from Europe, currently, lack such provenance energy.

Also of iconic and one of the most important to the holder country, France's Louvre Museum, are three Nok terracotta sculptures. Fairly, there is no ownership issue attached to the three Nok objects at Louvre. An understanding of 25 years was reported to have been agreed upon when the artefacts are expected to be returned to Nigeria.

Apart from generating visitors to the Louvre, in Paris, the three sculptures, circa 1,500 years old, have provided leads into academic studies of the Nok culture, since the objects were excavated from Jos, Plateau State in the 1990s. However, hundreds of other Nok sculptures, illegally excavated over the decades, are not accounted for till date. Some of them are spread across some unidentified museums in Europe and US.

As regards iconic art of African origin held outside the continent, there are enough legal grounds to take on the British Museum, for example, over restitution. The confessions by Ethnological Museum and University of Aberdeen that the sculptures placed for return were looted from Benin and the precedence of Sotheby's Vs Greece case, among others, should be enough to spur Nigeria into legal action against the British Museum, specifically, over the Idia mask.

Any restitution done in the past or to be carried out in the future without iconic art like Idia and Nok objects does not worth celebration or commendation. If art plundered by the Nazi during WW-II are still being tracked and recovered till date, similar window of restitution should be explored for cultural objects looted from Africa and taken to Europe and the US, or anywhere in the world. It's doubtful if any European country or non-state entity would be willing to pursue justice on behalf of owner African country, over ilegally acquired art.

-Tajudeen Sowole is a Lagos-based Art Advisor.

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