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October 3, 2007 - December 2, 2007

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MATTERS ARISING FROM THE BRITISH EXPEDITION, MASSACRE OF THE BINIS AND PLUNDER OF BENIN ARTWORKS IN 1897

Dele Igbinedion,

deleigb@yahoo.co.uk

During the administration of Governor Odigie-Oyegun as Governor of Edo State, I was the Chairman of the House of Assembly Committee on Finance, Commerce and Industry. Consequently, the State Board, which had responsibility for the promotion of Tourism, came under the oversight function of my Committee’s. During a familiarisation tour organised for the members of the Committee, we visited the grave of Captain Philips, the Briton who led the 1897 expedition against Benin Kingdom, among other places. During the occasion, I recollect that official who was our guide spoke heroically about the man. Till date, his grave is listed as a tourist attraction on the website of the State government. But was captain Phillips a hero or a villain?

A BACKWARD GLANCE AT HISTORY

About one hundred and six years ago that British Military Forces invaded Benin Kingdom, brutally massacred the inhabitants, plundered its wealth, deposed the Oba and exiled him to Calabar. Controversy has remained over the precise circumstances of the incident that precipitated this. At that time, the British justified it as having been undertaken to avenge the “unprovoked” murder of seven Britons on a peace mission to Benin Kingdom, while knowledgeable Bini historians have insisted that it was an act of mindless slaughter of innocent people and pillage of their possessions.

HISTORICAL DOCUMENTS

Historical documents have since revealed that a great wrong was done to the Oba and the entire Benin people by the British government and its Foreign Office. It is known that the British undertook the 1897 expedition because they perceived the Oba as an obstacle to their trading ambitions and ruthlessly wanted to dispose of him.

This is evident from a letter that Captain Philips wrote to the British Foreign Office, where, while seeking authorisation to embark on an undertaking against the fiercely independent Oba Ovonramen, he wrote:

“The whole of the English merchants represented on the river have petitioned the government for aid to enable them to keep their factories (trading posts) open, and last but not least, the revenues of this Protectorate are suffering ... I am certain that there is only one remedy. That is to depose the King of Benin ... I am convinced that pacific measures are now quite useless, and that the time has now come to remove the obstruction ... I do not anticipate any serious resistance from the people of the country - there is every reason to believe that they would be glad to get rid of their King - but in order to obviate any danger, I wish to take up sufficient armed force ... I would add that I have reason to hope that sufficient ivory may be found in the King's house to pay the expenses incurred”.

This establishes three facts: that English merchants needed greater access to trading, Captain Philips decided that the deposition of the Oba of Benin was a sine qua non for the achievement of that goal and that the Oba’s ivory will be plundered and sold to pay for the dubious “favour” about to be done to him and his people, which latter part seems to have been part of British official policy. It is now known that the death of the seven Britons was merely a ruse to achieve a subterranean agenda.

According to plan therefore, after the defeat of the brave Benin warriors, the British soldiers then plundered the Palace of the Oba and other houses in the Kingdom, and forcefully carted away items of value including the priceless artworks that now engages our present attention.

FOREIGN OFFICE COMPLICITY:

While a lot of the artworks were sold to defray the cost of the expedition, the British Foreign Office gave the British museum large quantities of the artworks.

While many are displayed in the ethnographic section of the museum, the premier collection of these priceless Benin art treasures are today held at the Museum of Mankind-aside from many more, held in unknown private collections around the world.

Enormous profits have since been made on these items by the Museum. For example, in 1984, Sothebys, a British auction house, auctioned a Benin plaque featuring a musician in the catalogue accompanying the auction; the asking price was set at between £25,000 - £35,000.

Till date, the British Museum and London continues to gain income from visitors from Africa and elsewhere who come to see the breathtaking beauty of these 15^th and 16^th century art.

However, none of this profit has ever been paid to Benin, from where the art were stolen.

THE INEFFECTIVENESS OF DIPLOMACY

One hundred and six years after the horrific incident, justice still eludes our people; the artworks are firmly in the hands of the British Museum and others, and there is no talk of compensation for the unjustified massacre of innocent people and/or restitution of the stolen property. It seems pretty obvious that diplomacy has run its course for Justice delayed has become justice denied.

LAW VERSUS DIPLOMACY

As diplomacy has failed, a lawsuit can offer many advantages:

· It will force all the defendants to confront the issues and where possible, explore an acceptable resolution within the predictable time frame that a Court will determine in exercise of its case management powers.

· The parties will be under a duty to disclose all documents relating to the matter. This requirement can be used as part of the pre-action investigation even before the suit. This will give access to documents that potential defendants might otherwise wish to keep private including financial accounts of all monies realised as proceeds of the use to which the artworks have been put.

· A lawsuit will bring the issue into the public domain, re-ignite general debate and achieve an embarrassing re-examination of the history of the British military action in Benin.

· While the case lasts, access to the artworks will be given to Benin art expert(s) to access the state of the artworks and determine their present financial value. This can guide whatever compensation the potential plaintiffs may wish to claim.

· Compensation claims can be presented and vigorously argued in a court case, unlike a diplomatic forum where the demands of decorum often obfuscate real legal issues under political considerations.

· Anyone who has any artwork that demonstrably originated from the 1897 incident will be put on notice to appear and defend the suit or be bound by the outcome. These could include thieving private collectors, and other museums.

LEGAL ISSUES

In the context of UK and International law, some legal issues arise for consideration, viz:

· Who owned the artworks prior to February 1897?

· If the above is positively resolved in favour of the Binis, whether they transferred ownership of the properties to the British at any time and/or whether the mere act of plundering goods in wartime without more can have the effect transferring ownership of property to plunderers.

· Whether the passage of time conferred any property rights on Museums in Britain when, to their knowledge, the items were plundered and are being detained by the superior military might of the United Kingdom.

· Whether extant UK laws that established the British Museum and consequently charged the Trustees with custody and management of artworks whose donors lacked ownership title is not incompatible with the property rights guaranteed by the UK Human Rights Act, 2000.

· Whether the artworks were, are or can ever become the property of the Museums or the government of the United Kingdom having regard to the way and manner they were forcefully removed from the Kingdom by the British military forces in 1897.

· Whether, having regard to the provisions of the aforesaid Human Rights Act, the action of the Trustees of the Museum and the British Government does not amount to depriving or continuing to deprive the Oba of Benin and the entire Benin people of the ownership and use of their property.

THE LAW

The law relating to the above issues are:

* LACK OF CONSENT VITIATES PURPORTED ACQUISITION OF

PROPERTY

Consent is a pre-requisite for the effective transfer of rights over property. This was the law before 1897 and it is still the law today. Lack of it vitiated any purported acquisition of the artworks, and, if the original donors or sellers lack title, then the obtainers will also lack title.

* PASSAGE OF TIME

One hundred and six years have passed since the plunder took place. However, this cannot defeat an action.

Under international law, mere passage of time does not defeat the claims of anyone dispossessed of property. It is of greater significance that, in this case, the deprivation is continuous since the items remain in the custody of the Museums. This act arguably has the effect of sustaining the cause of action eternally.

In relation to the law of torts, a person from whom a chattel is stolen can sue the obtainer or anyone who subsequently converts the chattels before he recovers possession without limit of time.

* DEPRIVATION OF RIGHT TO PROPERTY

The Human Rights Act, which became operative in the UK in 1998, introduces a powerful impetus into this matter. The Act requires all public authorities to apply its provisions in carrying out their responsibilities. Article 1, Part 2 of the First Protocol thereof guarantees the peaceful enjoyment of property and specifically prohibits the deprivation of anyone’s possessions except in the public interest and subject to the conditions provided for by law and by the general principles of International law.

The continued detention of the artworks by the Museum and government of the UK constitute a deprivation of the property rights of the Binis. While this deprivation is clearly not in the public interest, no compensation been paid neither is there any principle of International law that permits the deprivation or continued deprivation of anybody’s property rights, where the deprivation was obtained through plundering after war. Indeed, International law enjoins return of property if looted in war or payment of compensation where return is totally impossible.

* INCOMPATIBILITY OF THE BRITISH MUSEUM ACT WITH THE HUMAN RIGHTS ACT

The Trustees of the British Museum are a statutory authority and perform their function by virtue of the provisions of the British Museum Act, 1963. To the extent that it gives the Trustees power to detain or to continue to detain the said illegally obtained artworks, it is my strong opinion that the Museum Act is incompatible with the provisions of the Human Rights Act. Where this is so, an application for a declaration of incompatibility can succeed in the UK courts.

* CLAIM FOR WRONGFUL INTERFERENCE TO PROPERTY

Any dealing with property in a manner inconsistent with the rights of the true owner amounts to the tort of wrongful interference. Where said properties can be found, a court can direct its return to the rightful owner. The cases of these artworks fall clearly into this category.

The Oba can recover all such damages as are the natural and direct result of the act, including damages for non-pecuniary interests, such as inconvenience, and distress at being deprived of the property.

In addition, the aforesaid Human Rights Act provides for the payment of financial compensation, among other remedies, to victims and/or survivors of human rights violations. Claims can be maintained against direct perpetrators and persons who aided them. Victims can further obtain redress in circumstances where a defendant has obtained money unconscionably.

* COMPENSATION UNDER INTERNATIONAL LAW

The right to reparation is well recognised in international law. In the Chorzow Factory Case, Germany v Poland, 1928, the International Court of Justice held:

"The essential principle contained in the actual notion of an illegal act - a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law."

OBJECTIVES

The objectives of my proposed action, among other things, will be to seek:

· An inventory of the Benin artworks presently held in the British Museum in order to determine their number and present financial value by a competent art expert.

· The return of the artworks or alternatively that they be held in trust for Your Majesty and people of Benin and/or dealt with in any manner the Oba might graciously wish to direct.

· An account of all profits made by the Museums from the artworks from the date of they came into their possession.

· Redress for gross human rights violations.

· A Court Order for the creation of a Historical Commission to Study and Issue a Report related to the true circumstances of 1897 massacre of the Binis.

· A formal apology from the British government for the atrocities of its military forces.

CONCLUSION:

The law helped the German Jews and their survivors when they sought to recover compensation from the German government for Nazi atrocities and recovery of money that from Swiss Banks. After a dogged fight by their Lawyers, they recovered financial compensation and an apology from the German Government and the Banks.

By the same token, I believe that the Benin people represented by the Oba will recover against the British government, the Museums and others in Britain for their acts in facilitating or benefiting from the massacre of innocent and defenceless Binis, the plunder of their property and detention of the property for a period of one hundred and six years.

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