In his last days in office, Nigeria’s former President Mohammadu Buhari declared the Oba of Benin, Oba Ewuare II as the owner and custodian of Benin artefacts (repatriated and abroad), sparking discussions globally. It has been suggested that the president’s action has complicated restitution efforts for the repatriation of cultural objects and the legality of his action under Nigerian law has also been questioned.

In light of this, I examined relevant Nigerian laws, specifically the Nigerian Constitution and the National Commission for Museums and Monuments (NCMM) Act, 2004, to assess whether the president’s declaration complies with domestic legislation.

What does the law say?

The Constitution of the Federal Republic of Nigeria grants the Federal Government the exclusive power to enact legislation for the establishment and regulation of authorities that:

1.  identify, collect, preserve or generally look after ancient and historical monuments, records and archaeological sites and remains declared by the National Assembly to be of national significance or national importance; and
2. administer museums and libraries other than museums and libraries established by the Government of a state.

(emphasis mine)

In accordance with the aforementioned powers, the National Commission for Museums and Monuments Act was established. Part 1 of the NCMM Act establishes the National Commission for Museums and Monuments, outlining its functions and responsibilities. It empowers the Commission to administer national museums, antiquities, and monuments and defines the scope of the Commission’s activities. Part III, titled “Prohibited Transfer”, regulates the transfer, acquisition, and protection of antiquities.

Are Benin Bronzes Antiquity? If so, so what?

According to Section 32 of the Act, antiquity includes any work of art or craft work of indigenous origin that was made before 1918 or holds historical, artistic, or scientific interest and has been used in traditional ceremonies. Accordingly, artefacts such as the Benin Bronzes would naturally fall within this category.

However, meeting these criteria does not automatically grant the status of “national significance or national importance” under the Act. Section 13 outlines additional steps for antiquity to be formally declared a national monument, including publishing notices, obtaining objections, and obtaining the President’s declaration. It is worthy of note that the Commission is obligated to post copies of the notice near the antiquity and send additional copies to the relevant local government. In addition, it is stated that the transfer, destruction, defacement, alteration, or removal of the antiquity without written permission from the Commission is prohibited during this period.

The foregoing implies a number of things, including first, not all antiquities qualify as being of national significance; only those formally declared enjoy such status. As such, private individuals in Nigeria can still own antiquities, regardless of how valuable they may be. Second, the focus of the Act is on artefacts within Nigeria’s borders and not those stored in museums abroad.

Where is the illegality?

The question which then arises is this: if the necessary steps have not been taken with regard to the Benin Bronzes abroad or those being returned to Nigeria, can the president’s declaration be deemed illegal? I don’t think so. The non-declaration of repatriated artefacts as having national significance places them outside the domain of the Act. The mere expression of interest or demand for their return does not automatically confer such a status on the artefacts.

It is essential to distinguish this from a scenario where the President gives an officially recognized antiquity “of national significance” to someone, e.g., the Oba of Benin. In this case, perhaps the Act’s prohibitions on transfers may be triggered. However, this is not the situation in this instance.

New law needed (urgently)

There is a need for specific provisions or guidelines addressing the treatment of repatriated cultural artefacts. The current legal framework provided by the NCMMA does not address the particular scenario of repatriations of stolen artworks like the Benin Bronzes. While the Act defines antiquities and outlines requirements for their declaration as national monuments, it lacks provisions or guidelines for the treatment of repatriated cultural heritage items.

One potential legal solution that could be included in the updated framework is to establish a mechanism for determining ownership of repatriated artefacts. This could involve conducting thorough provenance research and engaging in consultations with relevant stakeholders, such as source communities, experts, and international organizations. The goal would be to ascertain the rightful ownership of the artefacts and ensure that they are returned to their legitimate owners or custodians in cases where they were unlawfully removed.

Such a mechanism should specify the legal process through which ownership claims can be made, setting clear guidelines for submitting evidence and documentation to support such claims. Additionally, it could outline the criteria and factors that should be considered in determining ownership, such as historical context, cultural significance, and the circumstances of acquisition.

Nonetheless, the suggestion that the president’s action complicates restitution efforts should itself be questioned. The prevailing international practice dictates that when artefacts are repatriated, their ownership is determined by the requesting country. For example, see the European Union (EU) and the European Economic Community (EEC) Council Directive 93/7/EEC of March 15, 1993, on the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State. Article 12 of this Directive provides that ownership of the cultural object after return shall be governed by the law of the requesting Member State.

Why should the issue of determining ownership be any different when the requesting country is Nigeria?

Conclusion

Nigeria’s cultural heritage legislation primarily focuses on artefacts within the country’s borders, without consideration for artefacts held or repatriated from abroad. As the President did not declare the Benin Bronzes to be of “national significance,” they are currently beyond the purview of the relevant law and can therefore be considered legal under the NCMM Act. Thus, the President’s transfer of these artefacts cannot be deemed illegal under the Act. Instead, it could be argued that the Nigerian government is merely acting on behalf of the Oba of Benin to facilitate the rightful return of their looted artefacts.

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• Source: https://www.theippress.com/2023/09/03/benin-bronzes-is-the-presidents-declaration-legal/