Introduction
Communities access and exercise control over cultural heritage, and this allows them to exercise their right to culture by participating and contributing to cultural life.Footnote 1 The right to access and enjoy cultural heritage is “inextricably linked to the right to participate in cultural life.”Footnote 2 These cultural rights can only be meaningfully articulated and fulfilled within communities.Footnote 3 The term “communities” denotes collectivities or groups of people living in the same place.Footnote 4 In their exercise of cultural rights, not only do individuals and communities needFootnote 5 to have access to cultural life,Footnote 6 but they also require “ownership and control” over cultural property.Footnote 7 While the Sustainable Development Goals (SDGs) require communities’ participation in all decision-making levels,Footnote 8 including global governanceFootnote 9 to promote sustainable development,Footnote 10 paradoxically, the space given to communities in international cultural heritage law fails to be fully articulated. Since international law is largely state-driven, what is missing is an equally shared concept of heritage governance between state and non-state actors.Footnote 11
The unequal participation of communities under international cultural heritage law has also been attributed to colonialism, where European civilization was deemed to be universal and European countries enjoyed the full rights of sovereignty, whereas other cultures were condemned as uncivilized and non-sovereign.Footnote 12 Moreover, cultural and other resources of the colonized people were indiscriminately and without consultation appropriated by such sovereign countries under the doctrine of terra nullius. Footnote 13 As a result of the unequal participation of communities in governing cultural heritage under international cultural heritage law, communities have been unable to access and control appropriated cultural heritage held in foreign museums. Moreover, most of them have been evicted from their lands and have suffered violations of their cultural entitlements. This scenario clashes with local customary law and cultural values. For instance, in Kenya, the participation of communities in cultural heritage governance is a principle of good governance.Footnote 14 Cultural heritage itself is viewed as a commonFootnote 15 and transgenerational assetFootnote 16 managed by a multiplicity of actors at different levels of social organization,Footnote 17 with multidimensional impact on societies.Footnote 18
Communities’ exercise of their right to cultureFootnote 19 through access and control over their cultural heritageFootnote 20 contributes to their flourishing and well-being, fostering sustainable development and the African Renaissance.Footnote 21 Despite being widely used and recognized socially and culturally,Footnote 22 customary normative frameworks among communities are deemed inherently incompatible with, if not antagonistic toward, a colonial-based, state-run, hegemonic, exclusionary constitutional,Footnote 23 and statutoryFootnote 24 legitimacy test.Footnote 25 Consequently and paradoxically, Kenyan cultural heritage law has prevented communities from adequately exercising their right to culture through access and control over their cultural heritage, including that held in foreign museums.
This article aims to explain the strains and paradoxes of how African communities have been unable to obtain legal access and control to expropriated or stolen cultural heritage held in foreign museums despite their increased participation in international cultural heritage law. It also shows how communities have been unable to adequately exercise their right to culture through access to and control over their cultural heritage in accordance with their customary laws. To achieve this aim, the article adopts a postcolonial critique to analyze international cultural heritage law. Where appropriate, reference will be made to domestic Kenyan cultural heritage law. In so doing, the postcolonial critique focuses on notions of communitarianism, relationality, and the African Renaissance.
This article is structured as follows. After this introductory section, Section I briefly outlines the strained relationship between communities’ participation in cultural heritage governance under international cultural heritage law. Section II situates the relationship between communities and their participation in cultural heritage governance in Kenya. This section underscores how communities in Kenya have been unable to access and control expropriated cultural heritage held in foreign museums despite their increased participation in cultural heritage governance due to colonialism. Section III lays out a postcolonial critique of cultural heritage laws and traces the relationship between postcolonial critique and the notion of African Renaissance. It then applies the postcolonial critique to examine cultural heritage laws using notions of communitarianism and relationality in relation to the African Renaissance. Such postcolonial critique reveals that communities should have increased participation in cultural heritage governance and, as a result, access to and control over their appropriated cultural heritage held in foreign museums. Section IV concludes and underscores that a post-colonial critique of cultural heritage laws seeks to allow states and communities to listen to each other as opposed to one replacing the other in matters of cultural heritage.
I. The Participation of Communities in Cultural Heritage Governance under International Cultural Heritage Law
In international law, the participation of people in cultural life and access to their cultural heritage is a constitutive element of their cultural rights and their right to self-determination.Footnote 26 Under international cultural heritage law, participatory governance is an empowering form of governanceFootnote 27 that enables communities to govern their heritage “alongside states, experts, and international institutions, on equal footing but never instead of these other actors.”Footnote 28 Initially, under the constitutive documents of the United Nations Educational, Scientific and Cultural Organization (UNESCO),Footnote 29 communities’ participation was taken to refer primarily to the participation of non-state actors such as non-governmental organizations.Footnote 30 Over time, communities qua communities were able to participate in cultural heritage governance beyond the auspices of UNESCO, for instance, in the protection of their culture, as peoples, in the African Charter on Human and Peoples’ Rights;Footnote 31 their cultural heritage, as indigenous peoples, in the United Nations Declaration on the Rights of Indigenous Peoples;Footnote 32 and the American Declaration on the Rights of Indigenous Peoples.Footnote 33 Further, within the auspices of UNESCO, communities participate, for instance, in the protection of world heritage under the UNESCO Convention Concerning the Protection of the World Cultural and Natural HeritageFootnote 34 and the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.Footnote 35 In spite of this, participatory governance in international cultural heritage law has failed to achieve an equally shared concept of heritage governance between state and non-state actors since international law is largely state-driven.Footnote 36 Postcolonial critics have also attributed the unequal participation of communities in cultural governance under international law to colonialism, where European cultures were deemed to be universal and European countries enjoyed the full rights of sovereignty, whereas other civilizations were condemned as uncivilized and non-sovereign.Footnote 37 Communities where non-European cultures were practiced were deemed to be uncivilized or semi-civilized.Footnote 38 Additionally, in the decolonization era, national leaders claimed to represent a unitary modern nation endorsing democracy, citizen rights, and market economy, but these democratic tendencies existed alongside, and interlaced with, undemocratic relations of domination and subordination of indigenous legal and cultural spaces.Footnote 39
The continued subordination of communities and treatment as subalterns as a result of colonialism is addressed through the lens of the concept of African Renaissance, elaborated by an African historian, and then endorsed as a legal concept by the African Union. The African Renaissance refers to the idea that only by remembering its cultural roots and digging deep into its values, beliefs, social and cultural practices, and institutions can Africa turn its heritage into a factor of sustainable development and a source for political renewal and a forward movement.Footnote 40 This is indeed a call for “more local, community-driven, pluriversal, rather than universal, approaches to development.”Footnote 41
In the decolonization era, the return of cultural heritage expropriated or looted from the colonized lands and peoples in colonial times has come to the forefront of legal debates.Footnote 42 For African states, the return of cultural heritage is not merely the restitution of cultural objects. On the contrary, they regard such return as crucial for “condition[ing] the present and [enabling the] future flowering of its artistic values and its overall development.”Footnote 43 Accordingly, they call for the restitution of their “difficult” heritageFootnote 44 to address the serious damage associated with the removal of cultural heritage as a result of colonial or foreign occupation.Footnote 45 The inability of communities to have access to and exercise control over their cultural heritage expropriated or looted and held in foreign museums has also been based on internationalistic approaches to cultural heritage.Footnote 46
Internationalistic approaches to cultural heritage consider cultural heritage of global significance and argue that their display in global museums ensures their best protection. This has disincentivized communitiesFootnote 47 and commodified objects and artefacts as items to be bought and sold,Footnote 48 and excluded communities in favor of the experts involved in the preservation and conservation of such objects and artifacts.Footnote 49 Furthermore, despite the continued application of participatory governance approaches to cultural heritage, communities have still been unable to access and exercise control over cultural heritage held in foreign museums. In fact, with respect to cultural objects deemed to be global public goods, the proprietary balance tilts in favor of developed countriesFootnote 50 to the detriment of developing countries. Developing countries also face the unresolved questions of whether cultural heritage belongs “to a state, to a community, or to humanity as a whole.”Footnote 51
II. The Participation of Communities in Cultural Heritage Governance in Kenya
Although the participation of communities is a national value and a principle of good governance,Footnote 52 under Kenya’s cultural heritage law, communities’ sole function is to represent where cultural or natural heritage has emanated from.Footnote 53 Cultural heritage governance is distributed or shared between the national and county governments.Footnote 54 Therefore, under Kenyan cultural heritage laws, communities lack agency in the exercise of their right to culture. In fact, from the onset, under its aims, the current policy on culture and heritage in KenyaFootnote 55 disregards the central, yet collaborative, role of communities in cultural heritage governance. Kenyan communities are hence subordinated to norms and standards either distributed or shared between the national and county governments. The subordination of communities’ customs to positive law is a relic of the colonial past with the effect of robbing off of their agencyFootnote 56 and considering their world views uncivilized or semi-civilized.Footnote 57 Therefore, the current legal framework continues to deprive communities of their full enjoyment of cultural rights,Footnote 58 including the right to culture, which guarantees the right of a community to access, control over, participate in, and enjoy cultural heritage and cultural expressionsFootnote 59 in accordance with their values, customs, and traditions.Footnote 60
Additionally, despite the importance of community structures in heritage management,Footnote 61 their customs have to be subjected to the legitimacy test.Footnote 62 Even when community-based laws and state laws exist in the same legal system, their relationship is inherently antagonistic.Footnote 63 For instance, in Kenya, customary law is recognized as a source of law in the constitutionFootnote 64 and is ranked on the same level as state laws. The applicability of customary law, however, is subject to a legitimacy and or repugnancy test within state law based on justice and morality.Footnote 65 In many cases, state laws prevail over customary laws; in other words, legal systems have been hegemonic and exclusionary mainly due to their colonial origins.Footnote 66 This hegemony and exclusion, as expressed in the repugnancy test, largely derives from value judgements on morality and fairness from different cultural, mostly colonial, settings.Footnote 67 This resulted in the alienation of local communities from their heritage and reduced community-based legal systems to a peripheral management system often ineffective and secondary in status.Footnote 68 Under the colonial regime, communities’ belief systems and values that were part of African heritage were met with disapproval, often became objects of ridicule, and were often associated with witchcraft.Footnote 69
III. A Postcolonial Critique of Cultural Heritage Laws Using Notions of Communitarianism and Relationality under the Notion of African Renaissance
Postcolonial critics radically challenge the political and conceptual structures of the legal systems on which imperial domination was basedFootnote 70 to articulate the sentiments, subjectivities, knowledge, and experiences of peripheral populations whose voices had been suppressed or silenced.Footnote 71 They thus reorient history and analyse the entangled relations between the metropole and colonies and highlight the agency of those groups and peoples whose history had hitherto been subjugatedFootnote 72 to challenge dominant narratives. They also argue for the reconfiguration of the histories of international law and advocate the adoption of inclusive categories of analysis. Such analysis is simultaneously oriented “backwards” and “forwards”Footnote 73 to challenge the perceived universality of modernity and modernization as these are commonly represented.Footnote 74
Furthermore, a postcolonial critique continues and seeks to complete the work of decolonization by challenging the culture of imperialism that persists in various sectors of modern life. It thus supports alternative knowledge systems and different ways of dealing with difference and otherness, as opposed to the singular Eurocentric modes of thought,Footnote 75 so as to overcome colonialism’s legacies and find alternative representations or knowledge that do not fall prey to colonialist knowledge’s misrepresentations and epistemic violence.Footnote 76 Furthermore, it is also a post-nationalistic critiqueFootnote 77 to criticize the elite that claims to represent a unitary nation through democratic tendencies alongside undemocratic relations of domination and subordination.Footnote 78
A foremost critique of postcolonial theory contends that in the name of anti-Eurocentrism, postcolonialism contributes to resurrecting cultural essentialism, which was the ideological justification for imperial domination.Footnote 79 Cultural essentialism arises because a postcolonial critique emphasizes the local in place of the universal. However, the universal is based on the notion that certain “aspects of human agency … are not entirely the construction of local culture since they are rooted in aspects of human psychology that extends across time and space as components of human nature.”Footnote 80 As such, the postcolonial theory presents itself as the replacement of prior theories.Footnote 81 Consequently, through the valorization of the local and emphasis on cultural particularities, the postcolonial critique deems the very idea of rights and universal interest as culturally biased.Footnote 82
Yet, the valorization of the local and cultural particularities entails the recovery of ideas or values from the past that we can deploy to transform human conditions today for good, in a sort of recovery or renaissance.Footnote 83 Such ideas and values include Pan-Africanism, a worldwide movement dating back to the fight against the Atlantic slave trade that aims to strengthen bonds of solidarity between all peoples and diasporas of African ancestry, and negritude, a literary theory, mainly developed by francophone intellectuals in the African diaspora during the 1930s, aimed at raising and cultivating “black consciousness” across Africa and its diaspora. These examples demonstrate that the postcolonial critique does not aim to replace a dominant narrative with another but to adopt more inclusive and just perspectives.Footnote 84
The etymological roots of the English word “renaissance” come from the Latin renascere, which means “rebirth.”Footnote 85 Renaissance is characterized by events or processes that enable the revival of lost, marginalized, or forgotten culture, philosophy, literature, and science. The African Renaissance is conceptually associated and defined in words that begin with the prefix re, as expressed in re-birth, re-member, re-discover, re-define, re-dress, re-generate, re-awaken, re-invent, re-present, or re-turn.Footnote 86 Such renaissance is vitally constituted of several dimensions, including political, economic, culturalFootnote 87 and epistemic lines.Footnote 88
The broad objective of the African Renaissance is to create the necessary space for the peoples of Africa to determine their destiny as well as build a democratic Africa.Footnote 89 This objective has been challenged as an idea that is dead on arrival due to economic stagnation, conflicts,Footnote 90 democratic decay,Footnote 91 and lack of unity in Africa.Footnote 92 The African Renaissance, however, is not a thing that has “already happened or is happening now” but is a “desirable ideal, an outcome that can be willed into being.”Footnote 93 This is aptly enunciated in the statement “that any people have the inalienable right to organize their cultural life in full harmony with their political, economic, social, philosophical and spiritual ideas.”Footnote 94 Therefore, communities are able to, within the concept of the African Renaissance, set out desirable ideals to inform their exercise of the right to culture.
There are several tools for achieving the desirable ideal of the African Renaissance. Firstly, a reawakening, a rebirth or renewalFootnote 95 is neededFootnote 96 to enable Africa to become a competitor in the global world economy.Footnote 97 Secondly, African institutions should be established, designed, owned, and managed by African leaders.Footnote 98 Thirdly, Africa should remember its histories, guided by the great remembering vision of Pan-Africanism.Footnote 99
In the contemporaryFootnote 100 globalist era, the African Renaissance, as heralded by former South African President Thabo Mbeki,Footnote 101 has been used as a clarion call for Africa to find its “original expression of global participation in order to be successful.”Footnote 102 In fact, the Charter for African Cultural Renaissance underscores that “culture constitutes for our people the surest means to chart Africa’s own course towards technological development, and the most efficient response to the challenges of globalization.”Footnote 103 The African Renaissance is imperative for the survival of the continent,Footnote 104 and such survival will not be achieved through elite pacts and declarations but through popular struggles for decolonization and democratization.Footnote 105 Therefore, the purpose of the African Renaissance is to not only promote pride in Africa’s history, languages, culture, and traditions but also to enhance the relentless struggle by African peoples to tell their own stories, achieve sustainable development, and participate in just, peaceful, and prosperous international relations.Footnote 106
A postcolonial critique of cultural heritage laws using the notion of communitarianism under the African Renaissance
Communitarianism underscores the ontological importance of communities in human societyFootnote 107 and the view of property as commons.Footnote 108 Communitarianism reaffirms that culture emanates from societies, communities, groups, and individuals.Footnote 109 This reaffirmation features prominently and is celebrated in the Charter for African Cultural Renaissance.Footnote 110 In the African ways of living together, which is part of African cultures,Footnote 111 the community is central, and a person is always seen in relation to others, in communion with both current and past generations.Footnote 112 Communities are thus central to the culture of African societies.Footnote 113
Despite the centrality of a community in African society, colonialists and nationalist leaders employed colonial statutes to deprive communities of their agencyFootnote 114 by considering their world views uncivilized or semi-civilized.Footnote 115 For instance, the Kenyan cultural heritage laws subjected cultural heritage, such as the Sacred Mijikenda Kaya forests, to the criteria of outstanding universal value and inscribed them in the World Heritage List, denying political, economic, and cultural space for the local communities that had historically looked after such sacred forests in the first place.Footnote 116 This demonstrates how African peoples have been “paled into the periphery as helpless victims while the curtain remains drawn on imperialism as the African states and ruling classes play the master of ceremonies.”Footnote 117
The African Renaissance concept is based on the recovery of African cultures. While colonialism undermined them, it never replaced them with new ways of life. Accordingly, African cultures may be recovered.Footnote 118 The concept of African Renaissance recalls that:
despite cultural domination which during the slave trade and the colonial era led to the depersonalization of part of the African peoples, falsified their history, systematically disparaged and combated African values, and tried to replace progressively and officially, their languages by that of the colonizer, the African peoples were able to find in African culture strength for resistance and the liberation of the continent.Footnote 119
One form of cultural domination was the expropriation and looting of cultural heritage in colonies.Footnote 120 Through the colonial encounter, African cultural heritage was relegated to the periphery andFootnote 121 deemed to be dark and demonicFootnote 122 as well as primitive and backward.Footnote 123 At the same time, it was subjected to the civilization mission,Footnote 124 criminalized,Footnote 125 and ultimately expropriated or looted through colonial acts of conquest and domination by colonizers.Footnote 126
Most of the expropriated cultural heritage items were later willed, sold, or gifted to museums in Europe, while others ended up as commodities on the global art market, being auctioned and exchanged, at times ending up in galleries, private or public.Footnote 127 The appropriation of African cultural heritage led to misconceptions about, misrepresentations,Footnote 128 and eventual loss of the objects’ history.Footnote 129 From the colonizers’ perspective, museums merely display everyone’s culture in one place for the maximum public benefit, and the expropriated cultural heritage attains the identity of the state where the objects are displayed.Footnote 130 Within colonialism, arguments about restitution amount to cultural protectionism or nationalism and deny cultural exchange.Footnote 131 Proponents of non-restitution of expropriated or looted cultural objects hold that cultural heritage should not be a signifier of a modern nation-state identity as it amounts to dangerous cultural purism or nationalism.Footnote 132 These views on the state of appropriated cultural heritage in the colonizers’ hands epitomize how colonial rhetoric within modernity naturalizes the whole real.Footnote 133 Further, modernity separates the present from the past, which it considers as gone and, as such, non-existent.Footnote 134
Despite these retentionist arguments based to a large extent on colonialism, in exercising its right to culture,Footnote 135 a community has an “inalienable right to organize their cultural life in full harmony with their political, economic, social, philosophical and spiritual ideas.”Footnote 136 These ideas include the conceptualization of cultural heritage as common heritage to be communally heldFootnote 137 in order to serve social, as opposed to individual, interests.Footnote 138 Accordingly, cultural property is regarded to be more than a physical solum as it extends to other cultural, spiritual, and intangible realities.Footnote 139 It is also a transgenerational asset held for the benefit of past (the dead), present (the living), and future (those yet to be born) generations, to be managed in conformity with notions of sustainability and inter- and intra-generational equity.Footnote 140 These ideas of cultural property inform communities’ management of cultural resources considering the nature of the resource and the various motivations for its use.Footnote 141 Communities use structural and normative parameters in cultural heritage management.Footnote 142
Structural parameters entail that a commons is managed and protected through a decision-making mechanism by a social hierarchy, “in the form of an inverted pyramid with the tip representing the family, the middle the clan and lineage, and the base the community.”Footnote 143 The normative parameters set out that “access to the resources of the commons is open to individuals and groups which qualify on the basis of socially-defined membership criteria reinforced, internally, by obligations which are assumed on the basis of reciprocity by and to each member of the social hierarchy.”Footnote 144 As such, communities’ claims to access and control cultural heritage held in foreign museums is based on these structural and normative parameters, which enable communities to be effective institutions for cultural resource management.Footnote 145 Presently, however, cultural heritage laws are used to suppress and subvert communities’ institutions of resource management. As a result, communities are unable to access and control their cultural heritage held in foreign museums. Under the African Renaissance framework, colonial heritage items should be returned to their communities of origin as these are not only the rightful owners but also resilient resource management institutions.
A postcolonial critique of cultural heritage laws using the notion of relationality under the African Renaissance
African worldviews regard the community as the center of relationshipsFootnote 146 in a universe conceived, anthropologically and ethnologically, under the notion of solidarity or relationality “as a sort of organic network of participatory relationships that transcend space and time.”Footnote 147 The concept of relationality allows communities to see:
“…the past as actively constituting the present. The past is alive; it is the binding force of many communities. It holds the memories of what has been denied and the suffering of oppression. It is the open colonial wound that speaks for justice. It is the place of birth.”Footnote 148
Under Kenyan customary cultural heritage laws, a community’s right to culture constitutes the foundation of the community and enables the cumulative civilization of the individual, the family, the community, and the nation.Footnote 149 This implies that an individual, the family, the community, and the nation are within a sort of organic network of participatory relationships that transcend space and time.Footnote 150 Rather, such relationships are built on a past that actively constitutes the present as a unifying force.Footnote 151 Despite the recognition that culture is essential for the very existence of a community, the delineation of global museums risks undermining rather than preserving history by usurping communities’ functions in relation to cultural and natural heritage.Footnote 152
Relationality is premised on the conceptualization of the universe as an organic network of relationships that transcend space and time and link people with their ancestors, descendants, and the entire universe.Footnote 153 The colonial encounter, aided by capitalistic modernity, resulted in the dismembering of Africa in various ways, including political, economic, and cultural ones.Footnote 154 It disconnected Africa from its holistic worldview, but such cosmology resisted and made African society resilient.Footnote 155 In Kenya, for instance, cultural heritage law allows for the inscription of cultural heritage such as the Sacred Mijikenda Kaya Forests into the UNESCO World Heritage List based on its outstanding universal value. Footnote 156 Yet such inscription risks disregarding the political, economic, social, philosophical, and spiritual ideas that have underpinned the safeguarding of these forests and disrupting the cultural life of relevant communities in full harmony with these ideas.Footnote 157
As such, the African Renaissance concept recognizes that African peoples were able to find in their culture the strength for resisting oppression and liberating the continent despite cultural domination which, during the slave trade and the colonial era, led to the alienation of part of the African peoples, the falsification of their history, and the systematic disparagement of African values.Footnote 158 This is well-enunciated in the proclamation that “the prompt restitution to a country of its objects of art, monuments, museum pieces, manuscripts and documents by another country, without charge, is calculated to strengthen international cooperation in as much as it constitutes just reparation for damage done.”Footnote 159
Conclusion
In sum, to allow communities to exercise their rights, including their right to culture – which guarantees the right of a community to access, participate in and enjoy cultural heritage and cultural expressions – in accordance with their values, customs and traditions, notions of communitarianism and relationality ought to be reawakened through a postcolonial critique. This reawakening, or African Renaissance, ought to underscore the ontological importance of communities in respect to the making, safeguarding, and development of cultural heritage and the organic nature of relationships transcending time and space between individuals, their ancestors, and the universe. In so doing, communities, foreign museums, museum experts, and national and county governments will be able to listen to each other as equal partners with a view to healing the open wounds associated with colonial injustices.
