RETURN AND RESTITUTION OF CULTURAL PROPERTY IN AFRICAN STATES UNDER THE 1970 UNESCO AND 1995 UNIDROIT CONVENTIONS

Abstract

ABSTRACT Cultural property, which is the pillar of civilisation and peoples’ identities, has been displaced through colonisation, plunder and massive theft; causing irreplaceable loss of valuable information on mankind. Return and restitution of cultural property is achievable under the 1970 United Nations Economic, Social and Cultural Organisation Convention (UNESCO Convention) and the 1995 International Institute for the Unification of Private Law Convention (UNIDROIT Convention). However, the action steps African states need to take to derive maximum benefits from these Conventions have not attracted much scholarly attention. This study, therefore, examined the return and restitution of cultural property in some African states, under the UNESCO and UNIDROIT Conventions, with a view to determining their ratification rates, domestication and implementation. The factors hindering the efficacy of both Conventions in selected African states were also investigated. The study adopted jurisprudential theories of natural law, historicism and sociological school and applied legal research methodology. Primary data used were the UNESCO and UNIDROIT Conventions, Constitutions of randomly selected five African states with provisions protecting cultural heritage, cultural heritage legislations of 27 African states and 38 other international instruments. Key informant interviews were conducted with the legal officers involved in the drafting of the UNIDROIT Convention at UNIDROIT secretariat in Rome and heritage law practitioners and scholars at the Art Law Centre, University of Geneva. In-depth interviews were also conducted with politicians , lawyers, judges and members of the public in Ibadan metropolis. Secondary data consulted included legal texts on cultural property and policy documents. Data were subjected to interpretive and comparative analyses. As at December 2014, only 70.4% and 3.7% of the selected African states had ratified the UNESCO and the UNIDROIT Conventions respectively. None of the States had any legislation specifically aimed at domesticating the provisions of both Conventions. Largely, the provisions of both Conventions have not been implemented. Although South Africa ratified the UNESCO Convention in 2003, the enactment of The National Heritage Resources Act, 1999 predated it. There is no difference in the legislation of states such as Egypt, Nigeria and Zimbabwe that had ratified the UNESCO Convention concerning return and restitution of cultural property and those that had not (Ethiopia, Benin and Kenya). For example, both Kenya’s Antiquities Act 1983 and Egyptian Law 117 of 1983 declared state ownership of cultural property. Lack of awareness among politicians, lawyers and the populace about the benefits derivable from the Conventions, coupled with lack of priority given to the issue of return and restitution of cultural property were some of the factors hindering the efficacy of the Conventions in the African states. Many African states are yet to maximise the benefits derivable from the UNESCO and UNIDROIT Conventions by not ratifying, domesticating and implementing their provisions. The States need to take steps to enact cultural property specific legislations, strengthen their enforcement mechanisms and maintain control over the cultural property within their territories.