‘‘It would not have been right to have retained an item of such great cultural importance that was acquired in such reprehensible circumstances. We therefore decided that an unconditional return is the most appropriate action we can take and are grateful for the close collaboration with our partners in Nigeria." - Professor George Boyne. (1)
I always assumed that Scots and Irish would be sympathetic to African demands for Independence and national self-government. Could it because they also struggled to be independent of the English? Whatever may be the reason for such a belief, one is surprised that when it comes to restitution, Scots are not very different from the rest of the European peoples who until recently did not understand that Africans wanted to recover their artefacts stolen during the colonial epoch. Scots are divided on restitution. The University of Aberdeen has decided to restitute a commemorative head of an Oba to Nigeria. But the new rules of procedure published by National Museums Scotland confirm that the museum is not in favour of restitution. (2)
As if to ensure that claimants do not entertain any illusion that the National Museums Scotland intends to do justice to claims for restitution, the first provision of the rules clearly states that:
1.1 National Museums Scotland's founding Act has a presumption against the deaccession'.
None of us doubts that the first duty of a museum is to preserve the objects under its control and not to dispose of items from its collection?
1.2 This duty includes a presumption against the direct, permanent transfer of items from its collection
The new rules seem to want to make it abundantly clear that the Scottish museum is not over-impressed by recent tendencies in Germany, Netherland, and Belgium to consider claims for restitution with some sympathy. (3)
The following article emphasises the exceptional nature of any decision to restitute:
'1.3 In exceptional circumstances, National Museums Scotland will consider a request made by claimants located outside the United Kingdom to transfer a specific object or group of things where the request meets certain criteria.
Para. 1.6.1 provides that Requests made for permanent transfer of object(s) in National Museums Scotland's collection to a claimant outside the United Kingdom will be considered on a case-to-case basis.
It is not very clear whether this provision means that when the Oba of Benin claims 80 Benin artefacts in the Scottish National Museums he would have to submit single 80 applications as the phrase case-to-case basis could mean. This situation would, of course, be absurd, but as these rules stand and appear to work against restitution, we cannot exclude anything. Descriptions relating to Benin artefacts in the National Museums Scotland refer to their relations to the notorious 1897 Benin invasion thus:
Associations British Punitive Expedition to Benin City, 1897
The rules speak of 'transfer of objects' and avoid the word 'restitution' scrupulously. They seek to avoid legal and historical implications of restitution and the fact that we are here dealing with looted objects, mostly seized by force during the colonial period.
The conditions for submission of requests to the Scottish Museums are remarkable. Rule 3.1.1 provides that :
'The request is submitted by a recognised National Agency (e.g., a National Museum, National Gallery, National Archive, or National Library) proposing to take the object(s) into their ownership, both legally and physically.'
A National Museum or Gallery must submit the application on behalf of the claimant. The rule puts the legal ownership and physical control of the object into the authority of the National Government that must agree to the demand. This requirement raises issues for scholars and legal practitioners. Does the Latin maxim Nemo dad quod non habet, no one gives what they do not have, not apply here?
How can a body which is not a court of law or strictly following legal principles transmit legal ownership of a looted object to another entity? Note that the museum is holding a stolen object and may be considered an accomplice after the fact.
Paragraph 3.1.2 of the rules provide that 'The request is supported by the relevant National Government. This cannot be a level of Government below National Government'.
This is another extravagant requirement. By what authority and legitimacy can a Scottish institution impose such a requirement? The institution, illegally holding a looted African artefact, insists that, for example, the Asantehene, King of the Asante or the Oba of Benin, King of the Edo, cannot claim the restitution of looted artefacts unless the National Government supports it. A Scottish museum determines what level of authority in Ghana or Nigeria can request for the refund of artefacts stolen by the British Army in 1874 from Kumasi or 1897 from Benin City.
Can a Scottish institution stipulate an obligation for the Ghanaian or Nigerian government? The Scottish Museum assumes the right to determine the division of powers and responsibilities within the sovereign African States. Whence does this institution derive such arrogance and audacity? A reflection of the assumed superiority of Europeans and their institutions? Do International protocols place European museums above African governments or authorise them to attribute functions to our governments?
The written request that is to be sent to the Director, National Museums Scotland, must include the following information:
1. The registration numbers and description of object(s) included in the claim.
The museum has kept looted objects for a hundred years but now requests the claimant to state the item's registration number. How does an African claimant who has no access to inventories know the registration number? He probably cannot secure a visa if he explains his motive for visiting the United Kingdom. Many museums have not published their inventories. On the internet pages of the Scottish National Museum, one finds pages with registration numbers but no images.
2. The place of origin of object(s) included in the claim.
3. Written endorsement from the National Government, the recognised National Agency (e.g., museum), as well as the descended community.
One should contest this requirement. When a person claims ownership of a looted object, the body illegally holding the item insists that another institution must endorse the claim. That entity may not necessarily have the same interest as the claimant and may be antagonistic to the demand. The museum must explain the legal basis of such a requirement.
4. The endorsing descendent community's place of origin (territory and country) and relationship to object(s) in question.
5. Evidence from the endorsing descendent community that it is the closest living descendants of the people that originally made and used the objects under claim and/or that it continues to share the same culture (spiritual beliefs, cultural practices) attributed to that community.
This requirement supposes that present-day peoples or communities have not advanced or modified their beliefs and cultural practices since their ancestors' days. If we apply this test to British and European peoples, very few artefacts will remain. The Scottish Museum cannot add another requirement to the attributes of ownership based on continuous practice or usage. An owner may decide not to continue a tradition because it is no longer compatible with present-day environmental standards. The museum must remove this requirement in the rules of procedure of the Scottish Museum.
Cultural rights of peoples recognised by United Nations instruments such as the Declaration on the Granting of Independence to Colonial Countries and Peoples(1960) and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) 2007, are in the final analysis, frustrated by rules and requirements imposed by European institutions?
The rules of procedure of the National Scottish Museums also require that claimants identify other potential stakeholders. That means a person or group claiming an object must also identify other peoples or persons who could be potential stakeholders.
The claimant should not spend energy and resources to identify other potential claimants. If this is necessary, it is undoubtedly more appropriately done by the museum.
Additionally, claimants must provide 'Evidence from the descended community of the importance of the object(s), including cultural, historical, sociological, spiritual and political, and identifying the strength of their connection and the consequences of their return.
Is it being suggested that if a claimant cannot prove the importance of an item, he cannot possibly be the owner? The requirements here seem to be the work of persons with no idea about concrete situations of the dispossessed. A people deprived of their artefacts for a hundred years cannot always explain the cultural, historical, sociological, spiritual and political importance of the objects and the strength of their connection and the consequences of their return.
Claimants must also provide evidence that 'The removal of the object(s) from the endorsing descendent community did not conform to the legislative framework and/or established practices at the time of removal in the United Kingdom and/or the country of origin.
This rule could mean that if a soldier stole an object from Benin in 1897 and at that time it was the practice of Great Britain to send punitive expeditions to loot valuables from the territories under attack, then any claim by the conquered people would fail. This ground could be used for dismissing all claims from former British colonies.
Among the criteria to be used in evaluating restitution are:
1. Does the spiritual significance of the object(s) to the claimants and other stakeholders restrict the potential for public display and/or research?
This means that if the object claimed is of such a religious or spiritual significance to the claimants and it is their religious practice not to display such things in public, the claim would be rejected on grounds that it hinders others from researching the object.
2 What is the importance of the object(s) to National Museums Scotland as
demonstrated by its use, including its display, since it entered the Nation
Collection?
The implication is that if an object has brought more fame to the museum since it came to the National Museum Scotland, then the claim would be denied.
This comparison of the importance of an object for the claimant as compared to its value for the museum is perverse. The illegal holders are comparing their needs to the needs of the deprived owners. It does not seem right to compare Benin artefacts' importance to the Edo people and their significance to a Scottish museum.
According to para 5.2 of the rules, National Museums Scotland rejects a claim, it may consider alternative options for claimants to access the object(s), including but not limited to loans. This rule is difficult to comprehend. An African claimant, such as the Oba of Benin, claims the return of an ancestral object that the British troops stole in 1897, and the Trustees reject the claim but may graciously propose to the Oba a loan of his artefact. What kind of world is this?
Para 5.3 provides that if a claim is rejected, there will be no right to appeal within five years of the decision. The trustees will not consider any appeal after five years unless there is significant new supporting evidence.
This rule will revolt all persons interested in the fair administration of justice. In most judicial systems, the court would explain the right of appeal in the decision, and the applicant must appeal within a short period after the decision.
The reader will not be surprised to learn that 'All direct costs associated with the transfer, including transport, will be the claimant's responsibility, although National Museums Scotland may offer specialist advice without charge. Moreover, if any export license is required, the claimant will also bear the costs involved.
The makers of the new Scottish rules state that the provisions are informed by the International Council of Museums Code of Ethics, but we should not be deceived. (4) The reference is to section 2.15 of the code that reads as follows: 'Disposal of Objects Removed from the Collections Each museum should have a policy defining authorised methods for permanently removing an object from the collections through donation, transfer, exchange, sale, repatriation, or destruction, and that allows the transfer of unrestricted title to any receiving agency. Complete records must be kept of all deaccessioning decisions, the objects involved, and the disposal of the object. There will be a strong presumption that a deaccessioned item should first be offered to another museum'.
https://icom.museum/en/resources/standards-guidelines/code-of-ethics/
The framers of the rules forget other rules of the ICOM Code of Ethics, such as section 6.3 concerning the restitution of cultural property:
When a country or people of origin seeks the restitution of an object or specimen that can be demonstrated to have been exported or otherwise transferred in violation of the principles of international and national conventions and shown to be part of that country's or people's cultural or natural heritage, the museum concerned should, if legally free to do so, take prompt and responsible steps to cooperate in its return'.
Overall, the rules provided by the National Museums Scotland do not exhibit an intention to assist those deprived of their artefacts during the colonial period. They seem designed to discourage any illusion that restitution may be possible. All the recent discussions in Europe on the restitution of illegally acquired African artefacts do not seem to have left any positive impressions on the framers of these Scottish rules. The progressive attitude of museums in Germany, the Netherlands and Belgium seem not to have affected the framers of the Scottish regulations. The new rules studiously avoid the word 'restitution' and speak of 'transfer'. Is this a reflection of the insularity of the British Isles? As Germany has decided to restitute all Benin artefacts irrespective of their acquisition mode, these Scottish rules appear somewhat out of time.
Those who present the new rules as progress should re-read the text to decide whether the discussions of the last two years have influenced the formulation of these rules. They are far from exhibiting a desire for justice. (5)
Let us harbour no illusions. At this stage of the discussions on restitution, European institutions interested in restituting objects are already in contact with the African peoples whose artefacts are in their museums. Such museums have declared their general principles in this area and discussed the items to be restituted. They are not primarily interested in administering looted objects.
Issuing now such rules of procedure is an explicit declaration of intention to keep the artefacts. If you do not intend to keep looted treasures, you will not need any regulations such as those discussed above.
The National Museums Scotland, like many Western museums, does not pay any attention to the various UN/UNESCO resolutions since 1973 urging the former colonial powers to return artefacts to their countries of origin. (5). On the contrary, by restrictive requirements, these rules effectively negate peoples' rights recognised by world organisations.
Kwame Opoku.
NOTES
1. Professor George Boyne, Principal and Vice-Chancellor of the University of Aberdeen, on the decision of the University of Aberdeen to restitute a Benin commemorative head to Nigeria. https://www.abdn.ac.uk/news/14790/
When asked recently about its policy and intention regarding restitution by Artnet news Glasgow Museums, Glasgow, which holds 29 Benin artefacts answered as follows
Position on restitution: “Glasgow will continue to build on its established approach to restitution, founded on constructive engagement, with the people of Glasgow and the descendent communities or nations making the request, to support each individual situation. Moving forward Glasgow Life, on behalf of Glasgow City Council, will consider the most appropriate way to directly instigate discussions with descendant communities or their nominated representatives, whenever we can identify them, by sharing all relevant information that we have. Through cultural agencies in Nigeria, Glasgow Life, has established a pathway of communication with the Royal Family of Benin, and as a result we are in a position to begin a dialogue.”
2. National Museums Scotland, Procedure for Considering Requests for the Permanent Transfer of Collection Objects to Non-UK Claimants
Kwame Opoku, Proposed Belgian Guidelines Re-Introduce Ethics Into Restitution Debate https://www.modernghana.com/author/KwameOpokuK. Opoku, Berlin Decision on Benin Restitution: Germany on the way to Restitution of Looted African Artefacts. https://www.modernghana.com/news/1079313/berlin-decision-on-benin-restitution-germany-on.html
K. Opoku, Dutch Are Taking Giant Steps Towards Restitution of Looted Artefacts https://www.modernghana.com/news/1043306/dutch-are-taking-giant-steps-towards-restitution.html
3. ICOM Code of Ethics for Museums
https://icom.museum/en/resources/standards-guidelines/code-of-ethics/
If the ICOM Code of Conduct informed the new Scottish rules, as stated in the introduction to the text, they would not have put so much burden on claimants and not deny them a right to appeal to the museum's decision for five years after the decision.
If Western museums respected the ICOM Code of Conduct and the UNESCO/United Nations resolutions on the Return of Cultural Property to their countries of Origins, issued almost annually since 1973, we would have fewer problems with restitution . They would at least have stopped presenting the argument that nobody has asked them to return the looted artefacts.
4. Scotland's national museums drop opposition to returning colonial loot | Scotland | The Times
https://www.thetimes.co.uk/article/scotlands-national-museums-drop-opposition-to-return
Museums Association More museums take steps to return Benin bronzes to Nigeria. https://www.museumsassociation.org/museums-journal/news/2021/04/more-museums-take-steps-to-return-benin-bronzes-to-nigeria/
Scotland's National Museums Have a New Policy When It Comes to Restitution https://observer.com/2021/06/scotland-repatriation-benin-bronzes-uk/
Scotland's national museums have a new recovery policy https://j99news.com/2021/06/29/scotlands-national-museums-have-a-new-recovery-policy/
5. United Nations General Assembly Resolution, Restitution of works of art to countries victims of appropriation. A/RES/3187(XXVIII).
The General Assembly, Recalling the Declaration on the Granting of Independence to Colonial Countries and Peoples,
1. Affirms that the prompt restitution to a country of its objets d'art, monuments, museum pieces, manuscripts and documents by another country. without charge, is calculated to strengthen international cooperation inasmuch as it constitutes just reparation for damage done;
2. Recognises the special obligations in this connexion of those countries which had access to such valuable objects only as a result of colonial or foreign occupation;
3. Calls upon all the States concerned to prohibit the expropriation of works of art from Territories still under colonial or alien domination;
The Western States and their museums have systematically and continually continued to disregard the resolutions on the return of cultural property to their countries of origin which the world body has issued since 1973.
K. Opoku, Parzinger's, Cri de Coeur: Genuine Plea for UN/UNESCO Assistance or Calculation to Delay Restitution? https://www.modernghana.com/news/830590/parzingers-cri-de-coeur-genuine-plea-for-ununes.html
Spoon of beaten brass sheet with shallow circular bowl and flat rectangular handle ornamented with repoussé work: West Africa, Ghana, Asante, late 19th to early 20th century, now in National Museums Scotland, United Kingdom.
Hip pendant,Benin,Nigeria,now in National Museums Scotland,United Kingdom.
Cast brass sculpture in form of a gunboat, Ghana, now in National Museums Scotland, United Kingdom.
Asante drum, Kumasi, Ghana, National Museums Scotland ,United Kingdom..
Hip pendant, Benin, Nigeria ,now in National Museums Scotland, United Kingdom.
Bell, Benin, Nigeria, now in National Museums Scotland, United Kingdom.
Plaque. Oba and attendants, Benin, Nigeria, now National Museums Scotland, United Kingdom.
Altar piece with standing court figures, including Queen-mother, Iyoba,
Benin, Nigeria, now in National Museums Scotland, United Kingdom.
Hornblower, with side-blown horn, Benin, Nigeria, now in National Museums Scotland, United Kingdom.
Royal messenger wearing brimmed hat and holding blacksmith’s hammer, Benin ,Nigeria, now in National Museums Scotland, United Kingdom.
Staff, handheld idiophone of cast brass/bronze, surmounted by an ibis, the bird of prophecy. Benin, Nigeria, now in National Museums Scotland, United Kingdom..
Mami Wata tray, Calabar, Nigeria, now in National Museums Scotland, United Kingdom.
Commemorative head of an Oba, Benin, Nigeria, now in National Museums Scotland, United Kingdom.
Oval box, Benin, Nigeria ,now in National Museums Scotland, United Kingdom.
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