|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 acquured 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.
Prior to the unprecedented Festival of Arts and Culture, popularly known as FESTAC '77, the Benin ivory, Iyoba mask's rich provenance was less projected. As 16th century pendant, the Iyoba or Idia mask has generated iconic status, which expanded after Nigeria's request for its return was turned down, preparatory to FESTAC 77. A replica, produced by sculptor, Erhabor Emoakpae (1934-1984) was eventually used for the FESTAC emblem.
After looted from Benin in the 1897 plundering of over 13,000 art pieces, it was said to have been acquired by Briton, Sir Ralph M. Denham Rayment (1860-1909), a naval officer. From Rayment, the mask was acquired by Prof Charles Gabriel Seligman (1873-1940), a collector and anthropologist.
It took the controversy of Nigeria's inability to use the Idia mask, for the other three hidden ones of the same theme to be exposed from two museums and private collection, in U.S. Till date, the Idia mask, as a theme in global art parlance, remains one of the most valuable and controversial cultural pieces in the world. Its provenance, arguably, is among the strongest in the global politics of art restitution.
The laws of U.S, Europe and Idia masks
The immunity and non-protective contents of FSIA of US: Amended several times since its origin in 1976, the law provides immunity for foreign sovereign states and their "political subdivision(s), agencie(s) and instrumentalit(ies) against litigations in states and federal courts in US. The immunity is not however absolute. A sovereign state may lose immunity if: "a commercial activity carried on in the United States by a foreign state; an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States."
Determining what constitutes "commercial activity", specifically, in the context of museums that collect gate fees from the public for viewing, may either strip the facility of the immunity or strengthen it. Bringing the act within the context of the restitution issue, it would take 'eighth wonder of the world' for the UK to return the Idia mask. Reason: the British Museum prides itself as global window of cultural values In contrast, Ethnological Museum, Berlin, Germany, according to sources, over a month ago, plans to return hundreds of Benin bronzes to Nigeria before the end of 2021. Coming after the Berlin announcement was that of University of Aberdeen, U.K, which also announced it will return a sculpture of Benin origin acquired in 1957 from the looted pool of 1897.
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.
For obvious reason of being beggarly nations that always go cap-in-hand for aides, concerned African countries, perhaps, prefer not to 'rock the boat' of the powerful west. In fact, it's been alleged that cultural objects of controversial and valuable status are always, covertly, on the table of some African countries in seeking financial and other aides from member nations of EU, US and the UK. Sometimes, the aides come in a paradox texture such as helping to build museum personnel capacity of African countries whose artefacts are under incarceration. For example select staffs from Nigeria's National Commission for Museums and Monuments (NCMM) have been enlisted in quite a number of training and retraining, via funded programmes of the UK.
-Tajudeen Sowole is a Lagos-based Art Advisor.