Testimony submitted to the Cultural Property Advisory Committee, Department of State, jointly by the Committee for Cultural Policy and Global Heritage Alliance on a Proposal for a Memorandum of Understanding Between the United States of America and the Federal Republic of Nigeria under the Cultural Property Implementation Act
Both the Committee for Cultural Policy and Global Heritage Alliance support the Congressionally mandated application of the 1983 Cultural Property Implementation Act (CPIA). Both organizations recognize that the United States should take every opportunity to work together with Nigerian cultural and police authorities to halt any illegal trade in Nigerian artifacts with the United States.
However, we have found scant evidence of illegal trade in artifacts coming out of Nigeria at this late date. Nigerian art is now found primarily outside of Nigeria. The superabundance of Nigerian and other African ethnological materials already in Europe and the United States is the result, in the case of Europe, of many, many thousands of objects having been removed from Africa by colonial powers, sometimes in outright looting, but also through collecting by wealthier nations from poorer ones. Interest in African art in general, including the spectacular traditional art of Nigeria, was stimulated by the association of the abstracted style of African artworks with the 20th century development of modern art. U.S. collecting has most often taken place second hand, through the acquisition of genuinely antique objects from among European-held materials.
Certainly, there is ample evidence of pillage of Nigerian cultural heritage in the colonial past, including through the most notorious event, the Benin punitive expedition of 1897. A significant trade in ancient art, including in ancient Nok ceramics from Nigeria, also took place from the 1970s up though 2000 – at the same time that dozens of archaeological excavations were ongoing in the region. The same late 20th century period saw the removal of many of the remaining original objects held by traditional communities. There also appears to have been some trading in objects removed by officials from Nigerian museum collections. How these were quietly removed from the National Museum and put on the market after the British Museum sold a number of ‘excess’ objects to Nigeria in the 1950s remains unclear.
The most striking example of Nigerian government’s earlier, far more casual attitude toward objects in its museum collections is an incident in 1973, in which the head of the Nigerian government at the time, President General Yakubu Gowon, wished to present British Queen Elizabeth with a copy of a 16th century bronze head from its National Museum. The copy that was made was unsatisfactory in quality, and President Gowon picked up the original from the museum and took it with him to England. According to reports, until an investigation in 2002, the Queen thought she had been given a replica.
Due both to colonial period pillaging and to the 20th century passion for African art stimulated by modernist art, the vast majority of antique Nigerian art is in Europe, not in Nigeria, and has been there for a long time. There is very limited documented evidence of theft and looting of archaeological or ethnological objects in Nigeria today. One reason for this is the enthusiasm of Nigerian art collectors; the important ancient and ethnographic art that is left in Nigeria has found its way to private and public museum collections. Secondly, while Nigeria has an active contemporary art scene and a number of Nigerian artists are now recognized globally among top emerging artists, Nigeria is no longer a source for most forms of older Nigerian art for foreign collectors. Foreign collectors are aware of the potential legal liabilities of unprovenanced works in the international art market – and they have other sources for antique Nigerian art.
Auction house records and gallery informants make it clear that few, if any, ancient or truly ‘ethnographic’ objects come directly from Nigeria today. Works coming directly from Nigeria are automatically suspect as fakes – and works without established provenance dating prior to WW2 are simply not old enough to have any market demand. The trade in significant Nigerian objects in the US is limited to antique objects that were removed from Nigeria in the colonial period; post-WW2 objects (except modernist and contemporary works by known Nigerian artists) have little or no serious art market value or interest. Most recent objects are considered to be basically tourist trinkets, made deliberately for the market.
It should be noted that production of brass and bronze objects replicating antique pieces in “Benin-style” has never ceased in Nigeria; similar objects continue to be made today by skilled Nigerian craftsmen. Modern bronzes, although made using traditional methods by people of Benin heritage, do not fit the museum or art market criteria for an ‘authentic’ ethnographic artwork. Nonetheless, based on materials and ‘style’, this is exactly the sort of item that U.S. Customs would intercept in the event of an MOU being signed.
One type of artifacts from Nigeria still occasionally making its way to Europe are examples of the Bakor monoliths. These traditional carved stone sculptures which are found in fields in Nigerian rural communities, and which have been documented recently by a Factum Foundation project, unfortunately are at great risk where they remain due to damage from stubble burning and other farming practices that are harming them in situ.
UNESCO reports make clear that preservation of World Heritage monuments in Nigeria is seriously underfunded or absent and sites are deteriorating. However, in Nigeria today, major monuments are primarily at risk from local pilferage for building materials and from pure neglect, not because they include salable artifacts.
Import restrictions under the CPIA have real life consequences for U.S. museums, academic scholarship, U.S. collectors, and legitimate U.S. trade. They were not intended to be used as a purely symbolic gesture. The CPIA cannot be used to remedy Nigeria’s tragic past losses from the colonial period, such as the devastating 19th century military looting of Benin. Nor can they bring back purchases by eager collectors in the 20th century, nor remedy the Nigerian government’s indifference and inaction with respect to UNESCO World Heritage sites, the Sukur Cultural Landscape in Adamawa State and Osun Osogbo Sacred Grove in Osun State.
The CPIA’s purpose is not to “shut the barn door after the horse is gone.” While the United States government (and non-governmental institutions, especially museums) should work together with Nigerian cultural authorities to support the development of cultural infrastructure, to provide resources and funding for preservation, conservation, museum partnerships, and to encourage archaeological and cultural tourism, the CPIA cannot be invoked to help Nigeria in this way. U.S. resources would be better spent in expanding cultural relations instead of burdening Customs and other law enforcement with an unproductive task through the establishment of an unjustified MOU.
What Nigeria Actually Needs
U.S. help in meeting other cultural needs in Nigeria could do substantial good. As noted above, major World Heritage sites are deteriorating rapidly. Nigerian museum and cultural heritage professionals are urgently in need of funding to maintain the severely dilapidated National Museum and to conserve and preserve important objects. Nigeria needs to either make significant government funding available to its neglected historic and cultural sector or to seek generous outside assistance.
While it is hoped that the planned new Benin Royal Museum in Edo State, Nigeria will set a new standard of excellence for African museums, both in its physical plant and in the all-important public outreach and archaeological programs planned, almost all work is still in the planning stage, and almost all funding will come from outside of Nigeria. The Benin Dialogue Group, a partnership of Nigerian and European museums, has been working since 2017 on plans that include the building of this major new museum designed by architect Sir David Adjaye. The museum will show major, long-term loans of Benin artifacts, in a circulating exhibition designed to be permanently on view, as well as be a place to receive public and private donations of Nigerian and other African artworks. It will also be a center of global sponsorship for Nigerian cultural enhancement, providing facilities, professional training, support for new archaeological work in Nigeria and educational outreach to Nigeria’s public, especially its schoolchildren.
Under these circumstances, both CCP and GHA strongly urge that rather than imposing unnecessary and burdensome import restrictions, the United States Department of State should instead endeavor to find funding for and assist in the development and restoration of cultural and educational institutions within Nigeria.
This important task should begin with (1) a collaborative dialog with Nigerian cultural specialists to find out their most urgent needs. Assistance should continue through (2) direct US government financial grants for conservation and preservation of artifacts through the Ambassadors’ Fund and other grantmaking, (3) assistance with repairs to existing museums, (4) financial assistance for local education-related loans projects for children at Nigerian museums, (5) long-term loans of objects from US museums, (6) an information campaign to inform US collectors of opportunities to make gifts to Nigerian institutions, and (7) sponsorship of archaeological work and publication by Nigerian academics and archaeologists through joint US-Nigerian archaeological projects.
Nigeria’s constitution is not specifically secular but it recognizes the contributions to the state of both Islam and Christianity. Nigeria’s constitution does expressly acknowledge that it is a diverse, multi-ethnic state. In fact, Nigeria has over 250 ethnographic groupings.
Nigeria ratified the 1970 UNESCO Convention in 1972. Research by a major Nigerian law firm, Adepetun Caxton-Martins Agbor & Segun, into Nigerian heritage laws for the Committee for Cultural Policy’s 2020 Global Art and Heritage Law Series for the Thomson-Reuters TrustLaw program (cited often in these comments) found that the Convention had not been linked to or domesticated under Nigerian law.
Nigeria’s primary cultural legislation, the 1979 National Commission of Museums and Monuments Act (“NCMM”) is a far-reaching domestic statute creating a broad cultural infrastructure under national law. The NCMM replaced Nigeria’s earlier (and unenforced) Antiquities (Prohibited Transfers) Act and Antiquities Act – under which Nigeria’s Antiquities Commission and Federal Department of Antiquities was created.
The NCMM conducts research in ethnography, archaeology and related fields, administers national museums, antiquities and monuments. It maintains the National Museum, makes recommendations on cultural heritage policy to State Governments or authorities on monuments and antiquities, approves private museums (Nigeria has a number of important private collections) and manages the presentation of heritage to the public for the purposes of education and enjoyment. The NCMM has 44 stations or branches across the country, of which 36 have local museums/galleries. The NCMM has also worked internationally in conjunction with ICOM to recover objects identified by foreign countries as being illicitly exported.
There has been and still is a system for licensed accredited agents to trade in antiquities (anything up to 1918) in Nigeria under Section 23 of the NCMM Act. There is also supposed to be a registry of traded objects, but there is no evidence that such a registry exists.
Anyone who finds an archaeological object is required to report the find within seven days to NCMM. Nigerian law is silent on whether a finder is allowed to keep any objects, and if so, under what circumstances. The issuance of official archaeological permits is also under the aegis of the NCMM.
There are not publicly available records in Nigeria for the number of arrests for violations of cultural property laws, or of convictions under cultural property laws, or on the number or value of illicit exports of cultural property. Although Nigeria has agreed in principle with UNESCO and ICOM to create various databases of cultural heritage, it has never had an inventory of objects held in its museums nor has it created any lists of objects illicitly exported out of the country.
There are several major private collections of Nigerian art; the most famous are owned by Omooba Oluyemisi Shyllon (over 7,000 objects and artworks) and Professor Wole Soyinka. Omooba Oluyemisi Shyllon has donated over 1,000 artworks to the Yemisi Shyllon Museum of Art (YSMA) at Pan-Atlantic University (PAU). The Didi Museum, built in 1893, was the first private museum in Nigeria.
While Nigerian law recognizes the right of private ownership of cultural property, that same property may not be exported without a permit or sold to anyone but an accredited agent under the NCMM Act. The forms for such permits and for temporary export permits for museum exhibitions are not publicly accessible. The Nigerian state can confiscate or seize an object that is subject to a non-permitted transfer and penalize the owner with a fine or a sentence of up to 3 years imprisonment.
Local bodies across Nigeria manage localized cultural resources. Religious and cultural institutions may own art and artifacts. They also may participate actively in festivals and events at recognized ancient heritage sites. Traditional leaders have enormous importance and influence, but they often lack official authority necessary to protect traditions from being overwhelmed by the modern world. Local shrines may be managed by priests, lineages, and heads of households. Praise-singers and chroniclers are widely respected living repositories for heritage. Nonetheless, the funds and the government commitment to preserve and support this living heritage has also been woefully insufficient.
The Nigeria Request
The only information on the request from the Federal Republic of Nigeria now available to the public as of this date is the following on the ECA website:
“The archaeological materials requested include terracotta (figurines and vessels), bronze (vessels, insignia of office, staffs, staff heads, plaques, and ornaments), stone (carved figurines, funerary markers), ceramics, and carved ivory and wood. The ethnological materials requested include metal (staffs), leather (masks), manuscripts, wood (masks and figurines) used in religious activities, part of community or ancestral shrines, and/or royal activity.”
CPAC’s review of source country requests requires it to determine whether the requesting country has met four specific criteria under the CPIA, and to recommend items for the Designated Lists. The requirements are:
- The cultural patrimony of the State Party is in jeopardy from the pillage of archaeological or ethnological materials of the State Party.
- The State Party has taken measures to protect its cultural patrimony.
- The application of the requested import restriction if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by nations with a significant import trade in the designated objects, would be of substantial benefit in deterring a serious situation of pillage, and other remedies are not available.
- The application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.
The First Determination
Importantly, Nigeria has not provided the required evidence that its cultural heritage is in jeopardy from the pillage of archaeological or ethnological materials. The looting that was most noted in our research had to do with the theft of building materials from Kano’s ancient wall to use for new construction and repair.
It is up to Nigeria, under the terms of the CPIA, to find evidence of significant, current looting
This lack of any significant direct trade in objects from Nigeria calls into question the legal justification for an agreement restricting imports from Nigeria under the CPIA, which are not subject to import restrictions under the CPIA.
The Second Determination
An MOU must be conditioned on meeting benchmarks for self-help measures. Before any MOU with Nigeria may be agreed to, CPAC must advise whether “Nigeria has taken measures consistent with the Convention to protect its cultural patrimony.”
While Nigerian officials have recently focused their attention on securing the return of objects stolen or taken by force in the 18-19th century, they have not given the same priority to maintaining what still remains from the past within Nigeria. The discussions above regarding the lack of funding and deterioration of Nigeria’s monuments and museums pertain here as well and show that Determination 2 is not met, although self-help measures are the most vital task necessary to restructure and rebuild Nigeria’s cultural institutions and her monuments.
The Third Determination
Import restrictions would not be of substantial benefit in deterring a serious situation of pillage in Nigeria.
A key measure of whether an MOU with the U.S. would reduce the jeopardy of pillage is whether there is a market in pillaged material in the U.S. and other market states with similar import restrictions. Section 303(a)(1)(C) of the CPIA states that U.S. import restrictions may be implemented only if:
“the application of the import restrictions set forth in section 307 with respect to archaeological or ethnological material of the State Party, if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by those nations (whether or not State Parties individually having a significant import trade in such material, would be of substantial benefit in deterring a serious situation of pillage…)”
There is no evidence that the United States is a significant market for recently looted Nigerian antiquities.
Nor does the request demonstrate that U.S. import restrictions will have a significant effect in preventing current looting in Nigeria. The CPIA further requires a finding that “remedies less drastic than the application of the restrictions . . . are not available.”
From the discussion of the lack of a market in Nigerian art in Nigeria itself above it should be obvious an MOU would not reduce the likelihood of pillage. There may be possibilities for theft from government institutions, but such thefts would already be prosecutable in the U.S. under laws with greater penalties than the CPIA. A CPIA-based seizure in these circumstances would be extremely unlikely.
The signing of international conventions has at times in the past been regarded by CPAC as a substitute for having made agreements actually similar to the CPIA. In that light, it should be said that while Nigeria has signed a number of international conventions related to cultural heritage, the adoption of international conventions is not self-executing in Nigeria, that is, they have not been adopted into national law. These agreements are:
- The Convention for the Protection of Cultural Property in the event of Armed Conflict, 1954;
- UNESCO Convention of the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970)
- The Convention for the Protection of the World Cultural and Natural Heritage 1972;
- UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995;
- Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999;
- Convention on the Protection of the Underwater Cultural Heritage 2001;
- Convention for the Safeguarding of the Intangible Cultural Heritage 2003;
- Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2005; and
- Convention on the Protection and Promotion of the Diversity of Cultural Expressions 2007.
Nigeria is signatory to the following cultural cooperation agreements with specific foreign nations, however these are preservational and academic in nature, not import restrictions or in other ways parallel to an agreement with the U.S.:
“i. Nigeria signed the African Union’s Cultural Charter for Africa, ratified in 2010, to rehabilitate, restore, preserve and promote African Cultural Heritage. However… [t]o be enforceable in Nigeria, the charter is required to be enacted as a domestic law;
ii. The NCMM and two Nigerian Universities, namely, Ahmadu Bello University, Zaria, and the University of Jos signed a bilateral cooperation agreement with the University of Frankfurt, through which the University of Frankfurt provided resources for the study of Nok terracotta in Nigeria; and
iii. Nigeria has signed bilateral cultural cooperation agreements with Portugal, Spain and Germany.”
The Fourth Determination
The 4th Determination requires that U.S. actions be consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes. Nigeria has made no argument that the MOU would meet this criterion, nor can we conceive of a situation, given the facts, under which a Nigerian MOU would facilitate international exchange of cultural property for scientific, cultural, and educational purposes. Nigeria’s laws prohibit export; Nigeria does not issue permits for export, and although Nigeria has a vibrant and exciting modern art scene, her museums for the most part do not have the facilities to make the international cultural exchanges envisioned under the CPIA – and have not done so in the past.
CPAC Should Limit the Scope of the Designated List.
Bearing in mind that the purpose of the CPIA is to halt trade in items looted from source counties today, CPAC should take care that any import restrictions are only applied prospectively to items on the designated list illicitly exported from Nigeria after the effective date of governing regulations. 19 U.S.C. § 2606. Unfortunately, CBP instead applies import restrictions far more broadly to any cultural goods imported into the United States after the effective date of import restrictions, i.e., an embargo, not targeted, prospective import restrictions.
In the African ethnological art context, there are also issues of commercial production going back to the eighteenth century. The description of ethnological art in the CPIA infers that restrictions apply to authentic goods made for a tribal society and should not be applied to commercially made art. Yet if in order for African art to be authentic, it must be made by someone in the culture for its intended use without any motivation of future sales in a market, then there is little ethnographic art that unquestionably meets such a definition. Even Benin ivory tusks such as those displayed on its altars that were remade for the Oba’s use after Britain’s punitive expedition in 1897, and destroyed again in a major fire in 1923, were also made for sale. In 1916, the Oba Eweka II of Benin encouraged the sale of such carved tusks to Europeans and to other African chiefs.
Is it appropriate for CPAC to include in Designated Lists of ethnological materials even antique Nigerian artworks made with an eye not only to sales, but also sales to a specifically European market? What about the objects produced in England by the well-known carver Ogiemwonyi Ugiagbe, who lived and worked producing carved stools and other objects at the Nigerian pavilion of the British Empire Exhibition in 1924 and 1925? Or far earlier ivory objects of Christian character made for the Portuguese market in the 16th and 17th centuries?
The Cultural Property Advisory Committee should apply a plain reading to the four determinations it must make.
CPAC should not recommend Memoranda of Understanding with governments that fail to meet the statutory requirements of the CPIA, including self-help measures. Import restrictions should only be imposed in situations where the facts and the law support them. The U.S. would do better to extend other forms of cultural and educational assistance to Nigeria, including through State Department funding for restoration and conservation, its facilitation of visas for travel for Nigerian cultural actors, and its assistance with the development of U.S.-Nigerian museum partnerships and other institutional assistance programs.
The Committee for Cultural Policy and Global Heritage Alliance respectfully request that Nigeria’s request be rejected at this time – and until a factual basis supporting its claim to meet the determinations under the CPIA is established. Without access to information supporting the request, the public is denied a meaningful opportunity to address the range of materials sought to be restricted and the chronological scope of the request.
 The Convention on Cultural Property Implementation Act, 19 U.S.C. §§ 2601, et seq.
 Nok materials from Northern and central Nigeria first came to light in the early 20th century. The Nok culture was among the first societies of sub-Saharan Africa to work extensively in iron, but their best known artifacts are baked clay terracotta statues. See Nok Terracottas (500 B.C.-200 A.D., Metropolitan Museum of Art, October 2000, https://www.metmuseum.org/toah/hd/nok/hd_nok.htm.
 The British Museum sold dozens of Benin bronzes duplicates in the open market, including to the National Museum in Lagos in the 1950s, and sporadically afterward. The most recent sale took place in 1972. See Maev Kennedy, British Museum sold precious bronzes, The Guardian, March 28, 2002, https://www.theguardian.com/uk/2002/mar/28/education.museums. One of the plaques that went to Lagos was featured not long ago in a U.S. sale of the famed collection of African American artist Merton D. Simpson. It included a Benin plaque that was sent to the National Museum as a “duplicate” among a group of other (often) damaged objects from the British Museum. It had been published in Antiquities From The City Of Benin And From Other Parts Of West Africa In The British Museum, Read, Charles Hercules; Ormond Maddock Dalton, London: the British Museum, 1899. 136 pages, 185 photographs and 27 drawings. Hard board and cloth cover, folio size (14 3/4″ x 19″ 5/8). Item #1606.
 E. Brassem, Essay: Bring home the looted Benin Bronzes, Trouw, July 19, 2019, https://www.trouw.nl/nieuws/essay-bring-home-the-looted-benin-bronzes~ba60d5a4/
 See Patricia Leighten, “The White Peril and L’Art nègre: Picasso, Primitivism and Anticolonialism,” Art Bulletin 72, 4 (Dec. 1990) and Alain Locke, “Note on African Art: 1924,” Primitivism and Twentieth-Century Art, eds. Jack Flamand Miriam Deutch (Berkeley: University of California Press, 2003). Both Modernism and an interest in African roots stimulated Locke’s collection. Originally intended to establish a museum of African art for the benefit of New York’s African American residents, the Locke collection is now located at the Schomburg Center at Harlem’s New York Public Library
 See the National Museum in Lagos, https://artsandculture.google.com/story/national-museum-of-lagos-8-must-see-masterpieces/twJCsAXXcJSwJA?hl=en , examples are also found among the wide-ranging collections of the Yemisi Shyllon Museum of Art (YSMA) at Pan-Atlantic University, Lagos.
 Ferdinand Saumarez Smith, Thefts, fakes and facsimiles: preserving the Bakor monoliths of eastern Nigeria, The Aura in the Age of Digital Materiality, 101-108, Factum Foundation 2020, Factum Foundation, 2020, https://www.factum-arte.com/resources/files/ff/publications_PDF/the_aura_in_the_age_of_digital_materiality_factum_foundation_2020_web.pdf
 Sukur Cultural Landscape, World Monuments Fund, https://www.wmf.org/project/sukur-cultural-landscape
 Note that although the Sukur Cultural Landscape webpage for UNESCO states that it is being “properly conserved” it is on the World Monuments Fund Watch List and the UNESCO Reports tell a different story of settlement by refugees, inappropriate building and erosion. https://whc.unesco.org/en/soc/3705.
 Concerns regarding this site are outlined in a UNESCO World Heritage Center report. They include severe pollution of waters posing a danger to visitors and that the 5% of revenue from Festival revenue supposed to be used for conservation is all used to mitigate damage caused by Festival crowds. The site and the amenities are seriously deteriorating. https://whc.unesco.org/en/soc/3592. See also 49 images from the Osun Osogbo Sacred Grove, https://artsandculture.google.com/search/asset/?p=nigerian-tourism-development-corporation&em=m02ttxq&categoryId=place&hl=en
 Omolola Coker et al., Adepetun Caxton-Martins Agbor & Segun, Nigeria Report, Global Art and Heritage Law Series, 8, Committee for Cultural Policy, 2020.
 Id. at 12.
 Id. at 20.
 Id. at 8.
 Id at 15. The NCMM Act expressly prohibits the transfer of Cultural Property by way of sale unless such a sale is to an accredited agent. The NCMM Act defines an accredited agent as the Director-General of the NCMM or any employee of the NCMM authorized in writing by the NCMM or any person or body in any State of Nigeria authorized in writing by the Minister charged with responsibility for antiquities, museums and national monuments to act for the NCMM in the State concerned.
 Id. at 21.
 Id. at 15.
 Id. at 17.
 Id. at 20.
 19 U.S.C. § 2602(a)(1)(A-D)
 19 U.S.C. § 2602 (A) (1) (B).
 19 U.S.C. § 2602(A)(1).
 Supra, note 11 at 10-11.
 Id. at 11.
 19 U.S.C. § 2606
 Barbara W. Blackmun, “Continuity and Change: The Ivories of Ovonramwen and Eweka,” African Arts 30, 3 (Summer 1997).
 See, for example, Christopher B. Steiner, “The Art of the Trade: On the Creation of Value and Authenticity in the African Art Market,” The Traffic in Culture: Refiguring Art and Anthropology, George E. Marcus and Fred R. Myers, eds., (Berkeley: University of California Press, 1995), 154.