In 1972, Saburi Biobaku, celebrated historian and chairman of Nigeria’s Antiquities Commission, struck a grim note when he delivered an opening address at the Symposium on Nigerian Antiquities at the University of Ibadan.Footnote 1 Despite an infusion of new money from the Nigerian government, the Federal Department of Antiquities’ efforts to safeguard the country’s cultural patrimony were failing. To stem the flow of cultural treasures from Nigeria would require curbing the activities of professional smugglers who were now operating on an “organised and alarming scale.” Biobaku spoke of a vast West African criminal enterprise through which “things…leave through Diplomatic bags and through big crates in Àpápá [harbor].” More severe punishments were needed to deter smugglers, such as doubling the penalties for trading in stolen goods, or tying those penalties to “the quantity or quality of antiquities involved.”
Behind the scenes, internal discussions in the country’s antiquities department revealed a more nuanced picture. Professional smugglers who took crateloads of precious objects out of the country indeed posed a threat to Nigerian heritage, but so too did expatriates toting suitcases stuffed with cultural treasures through customs. Despite the department’s best efforts to warn the professors, teachers, Peace Corps workers, development officers, missionaries, and businesspeople who made up the country’s expatriate class that they should secure permits before attempting to export anything that might constitute an “antiquity,” many expatriates packed their luggage with local carvings and headed toward the airport. When stopped by customs officers, they would say that their souvenirs could not possibly be considered “antiquities,” whose export was forbidden without a permit, because “antiquity” meant something very old, and the objects they wanted to bring home were made only recently. “Many Europeans attempting to export them argue on the grounds of age only and often get away with this,” noted the curator of the Jos Museum in the Middle Belt region. Customs officials knew that exporting “antiquities” without a permit was illegal, but, while “customs officers know the law,” they “do not know what antiquities are,” the curator surmised.Footnote 2
“Antiquity” was the word used by the 1953 Antiquities Ordinance to describe the category of cultural objects that were presumptively within the jurisdiction, if not the ownership, of the state. The use of this strange category, I argue, had profound consequences for the ability of postcolonial Nigeria to enforce the country’s restriction on the export of national patrimony. Nigeria was one of the last British colonies to adopt a statute governing cultural property. While other colonial statutes in British Africa used terms like “monument” or “object of archaeological interest” to define the subject of regulation, the term “antiquity” was more commonly found in the cultural property statutes of colonies associated with very ancient and ornate forms of material culture, like India or Mandatory Iraq.Footnote 3 The word “antiquity” was first applied to African objects in the late 1890s, in catalogs and essays concerning the looted works of the Kingdom of Benin. The term raised the market value of these objects and drew visitors to museums.Footnote 4
Its first use in Nigerian law, however, originates with the discovery, and subsequent theft, of ancient sculptures from the Yorùbá-speaking city of Ilé-Ifẹ̀ in the late 1930s, objects whose aesthetics and great age seemed comparable to ancient artistic traditions outside of Africa. In 1943, the legislative drafting effort was taken over by art teacher Kenneth C. Murray. Murray was urged by colonial legal officers to preserve the category of “antiquity,” but he expanded its definition to encompass the modern-day woodcarvings that he had long advocated preserving. A decade later, the Nigerian government enacted Murray’s ordinance.
Standard reference works like the Oxford English Dictionary have defined “antiquities” as “ancient relics” or “remains” of “ancient times.”Footnote 5 The term is etymological and conceptually linked to the ancient Mediterranean world, and conveys a level of grandeur, mystery, and age that differentiates it from the more common English word “antique.” Most “traditional art” and craftwork in Nigeria, the works Murray wanted to preserve, could not be considered “antiquities” under such a definition. Many of these objects were made of wood, a material that decays quickly in a tropical environment, and the examples of such works that lasted through the centuries typically abstracted the human form in ways that were quite dissimilar to the naturalism of Ancient Greco-Roman statues or the Ile-Ifẹ̀ works. The statute’s use of the term “antiquity” thus encompassed objects that had radically different material qualities and timescales.
As with other categories that European languages employ to refer to African objects, such as “art” or “artifact,” referring to diverse forms of material culture as “antiquities” drained them of their original social meanings, enabling valuable material culture to be classified and controlled.Footnote 6 Unlike the discourse of African art, however, colonial and postcolonial bureaucrats used the term “antiquity” not to transform objects into commodities for the global art market, but to govern them, and, ultimately, to fix their place in Nigeria’s museums. Referring to forms of material culture as antiquities allowed preservation officials to impose a single regulatory framework to control the flow of objects and secure them for the nation. The 1953 Antiquities Ordinance, like most statutes, thus constituted an ontological project ― it sought to generate a meaningful regulatory object from an array of material forms so that the state could prevent the loss of tangible heritage from its borders.Footnote 7
By the late 1960s, however, the statutory language of “antiquity” was failing to serve as a guide for the customs officers who were charged with enforcing the ordinance’s export regulations. Customs officials sent all “suspected antiquities,” which in effect meant all artisanal objects produced by Africans, to the antiquities department for inspection. Nigerian preservationists quickly became overwhelmed with the flood of objects they were tasked with examining. As the export permit system ceased to function effectively, the conceptual confusion surrounding the term antiquity led customs officials to let expatriates leave the country with their valuable souvenirs, avoiding the lengthy inspection process that the antiquities department required.Footnote 8
Reconstructing the history of Nigeria’s export permitting system for material culture sheds light on several aspects of African legal history. First, the increasingly rich literature on the history of colonial preservation and its legacies in Africa rarely examines preservation statutes and their effects on heritage work. The critical scholarship that does exist on African preservation laws has blamed their lack of efficacy on weak penalties and permissive export schemes rather than the instability of imported legal concepts.Footnote 9 A study of the legal regimes governing cultural property helps clarify the mechanisms by which heritage objects have been taken out of African countries. Tracing the origins of the statutory categories that African states have used to describe their cultural patrimony also shows us how certain objects came to be included within and excluded from the jurisdiction of the state. As the history of the term antiquity in Nigerian law suggests, this process was not self-explanatory, and was highly contingent on the interests of the small number of officials who were given authority over cultural affairs.Footnote 10
Second, this article argues that statutory histories are a fruitful avenue of inquiry for African legal historians. Research on legal history in Africa has tended to focus on issues such as customary law, sovereignty, and the nature of empire as a legal regime.Footnote 11 Some statutory histories in Africa have examined criminal law, but there is still much to learn about other varieties of statutes, including those that set out rules for administration.Footnote 12 Colonial states were thick with statutes, and statutory language is important because it establishes guidelines for how bureaucracies operate, even in instances where the rule of law is suspended. Because postcolonial states throughout world history have maintained many of their colonial laws, statutory histories often reveal historical patterns of governance that continue to play out in the present.Footnote 13
Third, such an inquiry is important because if, as legal scholars have indicated, statutory meaning-making and regulatory compliance are closely related, then the history of statutes in Africa can help explain the activities of postcolonial governments. Jurists have long been concerned with the vagueness of statutes, but rarely does this theme emerge in African histories.Footnote 14 An explanation of Nigerian policy outcomes grounded in legal language complements structural understandings of the postcolonial African state, which have tended to emphasize its fragility and weak state capacity.Footnote 15 In explicating this article’s arguments, I lay out a prime example of what Frederick Cooper calls “gatekeeping,” or the effort to control the interstices between domestic populations and foreign entities.Footnote 16 Though I focus on an example of gatekeeping par excellence ― Nigeria’s effort to put an end to the illicit exportation of prized objects ― I suggest that, in the context of the theft of cultural property, state capacity is an insufficient explanation for the failure of Nigerian governments to “control the gate.”
Ilé-Ifẹ̀, cultural property law, and the making of the Nigerian antiquity, 1939–53
Historians have shown that the British Empire drew some of its legitimacy from the protection of the cultural heritage of its subjects, although colonial governments usually adopted preservation measures haphazardly, in response to scandals involving plunder and looting.Footnote 17 British officials used a number of categories in drafting the preservation statutes they enacted throughout their territories in eastern and southern Africa (which were generally concerned with monuments, architecture, rock painting, and paleontology), but the word “antiquity” only appeared in draft preservation laws following the discovery of ancient brass art in Ilé-Ifẹ̀ in 1938. This was hardly the first time that writers used the term to refer to African objects, however. Museum experts and other critics began to employ the term to refer to the looted works of the Kingdom of Benin in the late 1890s, contrasting the age and technological sophistication of such objects with the stereotyped notion of “primitive” African artifacts. The celebration of Benin’s antiquities was a transnational phenomenon, involving British curators, German ethnographers, Black intellectuals in the United States, and the West African intelligentsia in Freetown and Lagos, who used the existence of such objects to buttress a variety of racial arguments and political projects.
The term largely fell out of use by the 1920s. The reasons for the change in terminology are somewhat unclear, but likely relate to the rise of primitivism and functionalist anthropology. Both movements had little interest in antiquities ― primitivists extolled simplicity and timeless traditions, and functionalists generally ignored material culture entirely.Footnote 18 Separately, French critics after the First World War briefly used the term antiquité to refer to what became the canon of “primitive art.” Their notion of antiquity/antique was highly idiosyncratic, though, and John Warne Monroe points out that these authors put Benin’s art in a separate category from the woodcarvings they so prized.Footnote 19 Although interest in ancient African material culture carried on in diminishing circles throughout the interwar period, cultural policymaking in Britain and France’s African empires largely focused on living arts, namely handicrafts.Footnote 20
Throughout the 1930s, Nigeria’s colonial government grew increasingly interested in the preservation of African material culture, responding to the demands of African rulers, British educators, and African students in London. Administrators did not consider enacting a law governing cultural property, however, until the 1938 discovery of a hoard of brass sculptures in a residential compound known as Wúnmọníjẹ̀ in Ilé-Ifẹ̀ (Ifẹ̀ for short), a sacred city in southwestern Nigeria whose intricate and ancient sculptural arts captivated scholars. The Wúnmọníjẹ̀ heads, as they came to be called, led to renewed attention in the art world to the material culture of Ifẹ̀, particularly its naturalistic brass and terracotta “portrait heads,” reviving a fascination that had gone dormant in the decades following the 1912 publication of Leo Frobenius’s Und Afrika Sprach.Footnote 21 A lobbying group made up of British education and museum officials emerged to advocate for the in situ preservation of the objects, and the widespread interest generated by the newly discovered works led the Colonial Office in London to put pressure on its West African colonies to prevent the theft of Ifẹ̀’s “antiquities.”Footnote 22
That they selected this term to refer to African objects years after it had disappeared from common parlance underscores that the Ifẹ̀ relics, like their historical cousins from the Kingdom of Benin, seemed exceptional in the context of West African art. In April 1938, before any specific legal measures had been contemplated, Nigeria’s Chief Secretary Gerald Whiteley wrote of discussing with education officers “the preservation not only of antiquities (e.g. at Ife and Benin) but specimens of craftsmanship.”Footnote 23 From the beginning of bureaucratic discourse on the subject, then, colonial officials recognized a distinction between Nigeria’s ancient material culture and modern crafts. In drawing from the well of colonial preservation statutes, it was natural to reach for a conceptual category that had long reflected this distinction, and lower-ranking bureaucrats gradually picked up the new lingo.
A year later, the Ifẹ̀ Native Authority enacted a local “Protection of Antiquities” ordinance designed to prevent the theft of the city’s ancient objects.Footnote 24 To the dismay of local administrators, legal officers soon declared the Ifẹ̀ ordinance beyond the power of the Native Authorities to enact, underscoring the need for a comprehensive, colony-wide statute.Footnote 25 Meanwhile, in January 1939, after hearing reports that the Ifẹ̀ heads were being smuggled out of the colony, the central government in Lagos enacted a customs regulation barring the export of “antique African sculptural works of art” without permission from the governor. As the term “antique” suggests, the customs order was drafted with objects like the Wúnmọníjẹ̀ heads in mind. The government also put a slip in the passport of every European entering the colony that advised them of the new regulation.Footnote 26 Yet subsequent rumors of the massive looting of Ifẹ̀ heads by unknown German dealers drew attention to the inefficacy of the customs regulation, prompting Secretary of State for the Colonies Malcolm MacDonald to urge West African governors to put in place stronger measures to stop the traffic in “products of African traditional culture especially antiquities.”Footnote 27 To aid Nigerian officials in drafting comprehensive preservation legislation, metropolitan bureaucrats sent examples of cultural property legislation enacted elsewhere in the empire.
Rather consequentially, the Colonial Office sent the 1935 Cyprus Antiquities Ordinance for Lagos officials to use as model legislation. The Cyprus statute was accompanied by only one of the many cultural property laws from Britain’s eastern and southern African colonies, that of Southern Rhodesia.Footnote 28 That London officials had in mind the preservation law of a Mediterranean island known for its intricate classical and medieval works rather than, to take one example, the “objects of archaeological and paleontological interest” that were the subject of Kenya’s preservation law suggests that the Colonial Office was concerned with objects like the Ifẹ̀ heads, whose naturalistic aesthetics were sometimes compared with Greco-Roman art. Yet provincial administrators rejected the ordinance Lagos officials drafted in 1940, noting that the term “antiquities” did not seem appropriate for the kinds of objects that might be worthy of preservation in the region, namely woodcarvings.Footnote 29 The draft statute was soon shelved, and, preoccupied by the war with Germany, Lagos officials abandoned the project of drafting a second cultural property law.
In 1943, seeking to resurrect the colony’s preservation efforts, Acting Governor of Nigeria Alexander Grantham appointed Kenneth Croswaithe Murray, one of a handful of British administrators with knowledge of African art, to the new position of “Surveyor of Antiquities,” a title that demonstrates the continued influence of the term. Murray, however, was not primarily interested in antiquities like the ancient works of Ilé-Ifẹ̀. An itinerant art teacher with a fondness for the aesthetics of European primitivism, he had written essays praising the supposedly simple, utilitarian crafts of Africans who lived in rural settings. He had long been a champion of colonial preservation, but he believed its aim should be to maintain key specimens of handicrafts for Nigerian artists to copy.Footnote 30 As Chika Okeke-Agulu points out, Murray was skeptical of the cosmopolitanism of some Nigerian modernist painters and felt that contemporary artists should build on traditional designs and practices.Footnote 31 For Murray, these traditions did not encompass the Ifẹ̀ heads. Drawing on the scholarship of colonial officials such as P. Amaury Talbot and H. R. Palmer, Murray argued in a 1941 article that the naturalism of Ifẹ̀ was introduced to Nigeria by a foreign, conquering race of people from northeastern Africa, led by the Persian general Kisra.Footnote 32 The classicizing aesthetic of ancient Mediterranean and Ifẹ̀ art was therefore exactly the opposite kind of style that Nigerian artists should emulate, as it was not truly endogenous to Africa or the ethos of its people. Murray held privately to this view of Ifẹ̀ art for the rest of his life.Footnote 33
When he embarked on drafting a new colony-wide preservation ordinance soon after his appointment, Murray sought to have the statute cover traditional crafts as well as the Ifẹ̀ works. He therefore tried to jettison the word antiquity altogether, proposing that the new law use the more capacious phrase “cultural objects,” a term that had just been adopted by legislative drafters in the Gold Coast.Footnote 34 Legal officers in Lagos insisted on using Cyprus as a model for the draft statute, and, taken up by fights over other aspects of the legislation, Murray soon gave up the battle and reverted to using “antiquity.”Footnote 35
Stymied in his efforts to adopt a new statutory term, Murray redefined “antiquity” to encompass the kinds of objects he wanted to preserve, even if it stretched the word far beyond its ordinary meaning. Whereas the 1940 draft ordinance concerned objects that predated British administration, Murray expanded the definition to include “any articles that have been used in a traditional African ceremony,” regardless of the age of the object or when that ceremony took place (a later draft added that such articles needed to be of “historic, artistic, or scientific interest”).Footnote 36 This definition was likely inspired by the prevalent notion of African art experts and dealers in Europe that authenticity, and therefore value, of an African object should be determined by its ritual use.Footnote 37 Some commentators were sharply critical of Murray’s expansive definition of the term antiquity, but he reasoned that the word was appropriate for newer artworks because they were the product of spiritual traditions that were dying out. In the future, when all the old “cults” had disappeared, these objects would fit within the ordinary meaning of antiquity, a view that overlooked the Eurocentric aesthetic connotations of the term.Footnote 38 In making this argument, Murray was able to reconcile his primitivist aesthetic philosophy with the use of this unusual legal category.Footnote 39
Though Africans in the colony had relatively little input into the drafting of the ordinance, many Nigerian intellectuals had long endorsed the cultural preservation effort undertaken by British officials like Murray. In introducing the bill to the newly constituted House of Representatives (created by the 1952 MacPherson Constitution), Federal Minister of Works Muhammadu Inuwa Wada spoke at length, quoting at times from a brief written by Murray. Wada spoke of the pride that Nigerians should feel in “old wood carvings…[that] have brought fame to this country.”Footnote 40 Other representatives rose to second Wada’s motion, echoing his point that cultural preservation would instill national pride and even calling for the return of Nigerian objects housed in European museums. Discomfort with the ordinance’s sweeping aims can also be seen in the transcript of the legislative debate, however. Adesoji Adérẹ̀mí, the ọọ̀ni (king) of Ifẹ̀, was compelled to condemn colleagues in the legislature who had derisively referred to some carvings displayed in the House of Representatives’ antechamber as “juju.” Such objections notwithstanding, the Antiquities Ordinance passed in April 1953, making Nigeria one of the last British colonies to enact a statute regulating cultural property.
An antiquity’s journey: the export permitting system and customs enforcement, 1957–79
Of all the myriad provisions of the 1953 ordinance, the most controversial ones created the permitting system for exporting antiquities. By the mid-1960s, the permitting process had slowed to a crawl. Thousands of objects waited for clearances as officials of the newly created Federal Department of Antiquities became inundated with complaints from irate expatriates seeking to export cultural objects.
African art had grown substantially in value from the late 1930s, when a preservation ordinance was first contemplated in Nigeria, to the country’s independence in 1960. But the growing exchange value of African artworks, and the rapaciousness of unscrupulous art dealers, only partly contributed to the problem facing the department. Decolonization produced a sharp uptick in the number of expatriates in Nigeria, from Peace Corps workers to businesspeople to university professors, many of whom wanted to take African objects home with them. An obstacle for the antiquities department was persuading these expatriates that their souvenirs should be considered potential antiquities that could not leave the border without a permit. An even greater challenge was convincing customs officials that the recently fabricated objects that expatriates were attempting to take home with them required an inspection from the department.Footnote 41 When customs officers applied their own understanding of what an antiquity was, antiquities became contested regulatory objects, changing meaning as they moved through state domains. Yet, as we will see later in this section, department officials responded to this confusion not by arguing for a change in statutory language, but by tightening the restrictions on the movement of “antiquities” within the country.
The system established by the 1953 ordinance required anyone who wished to export an object that could potentially be deemed an antiquity to take it to a department headquarters ― either the Jos Museum or the National Museum in Lagos ― for an inspection at their own cost. Barring “some reasonable grounds for urgency,” expatriates were required to apply three months before their departure. In their inspections, museum curators looked for signs of age and use in a “traditional” ceremony, and considered the object’s aesthetic merit and historical importance. If department staff decided that the object was not an antiquity, they would issue an export permit, but the director of antiquities also had the discretion to grant an export permit for a genuine antiquity. This generosity depended on the policy preferences of individual directors and on whether the national collection held comparable examples.Footnote 42
If a person wanting to export antiquities was denied a permit, they had several options: they could donate the antiquities to the department, sell them to the Nigerian national collection at a market rate set by the director, or retain ownership within the country’s borders. Under the 1953 ordinance, the Nigerian government lacked the authority to forcibly acquire antiquities, permitting private ownership so long as the items were not obtained through theft. When the department withheld export permits, most expatriates chose to either donate or sell their antiquities, having no use for objects that they could not take home with them. Under Ekpo Eyo’s directorship, which began in 1967, the department occasionally offered to keep expatriates’ antiquities on loan until they could obtain a similar example, after which the original object would be returned to the exporter.Footnote 43 The department’s export policy proved to be an effective means of acquiring objects for the growing national collection.
The system operated similarly for those attempting to evade legal means of exporting cultural objects or who were ignorant of the prohibition on export. If customs officers discovered any “cultural items” in the luggage of someone leaving the country, they were instructed to confiscate the objects and send them to the museum for inspection.Footnote 44 If the department determined that these items were not antiquities, they were released and returned to the individuals wishing to export them; otherwise, the issuing of the permit would be in the discretion of the director. Attempting to illegally export antiquities out of Nigeria was punishable by a fine of up to £25 or up to a month in prison, regardless of the scale of the crime. In practice, very few expatriates faced any punishment, and even large-scale dealers were only ever made to pay a fine they could easily afford. Larger punishments fell on African so-called smugglers who were accused of looting sacred shrines and violating other statutes governing theft and stolen property.Footnote 45
The director of the antiquities department had a great deal of discretion in managing the permit system. In theory, the Exports Sub-Committee of the Antiquities Commission dictated policy for the director to enforce and even had to approve the granting of export permits, although the 1953 ordinance allowed the commission to delegate its powers to the director.Footnote 46 In practice, directors were given seemingly free reign to determine how many permits should be granted each year and for what objects, and they had different policy views on the subject. From the late 1950s to the early 1960s, the department tended to focus on large dealers, creating a small police force in Lagos known as the “antiquities squad” to apprehend them.Footnote 47 In the mid-1960s, departmental policy appears to have shifted toward stopping a wider range of would-be exporters, including tourists and expatriates.Footnote 48
The department’s early focus on halting the activities of major dealers had not stopped the stream of “antiquities” flowing out of Nigeria. The problem of antiquities export did not solely lie with the dealers: in the aggregate, other expatriates, including university professors, Peace Corps workers, development consultants, diplomats, and businesspeople, posed a serious threat to Nigeria’s preservation efforts. Unlike the dealers, they did not leave the country with crates full of carvings but would slip through customs with a small number of “antiquities” stuffed inside their luggage. By the early 1960s, merchants were selling cultural objects to expatriates door-to-door. But professors and Peace Corps workers were particularly threatening to the department — their long stays in more remote areas of the country, rich cultural knowledge, and relatively high levels of education made them expert collectors.Footnote 49
Upon entering Nigeria, all visitors were notified of the country’s policy of requiring export permits for antiquities. Why, then, did so many expatriates willfully violate the export rules? Doubtless some were discerning enough to collect objects that could fetch large prices in traditional art markets in Europe and the Americas, and they worried that taking their objects to the Nigerian National Museum would dispossess them of their valuable goods. Beautiful objects from Africa also conferred prestige value on their owners. Professors trafficked in the export of African cultural objects to such an extent that it constituted one of the major grievances of Black scholars during the famously acrimonious 1969 meeting of the African Studies Association in Washington, DC. Archaeologist and former curator of the Ifẹ̀ Museum Frank Willett wrote to Eyo that the practice of “American scholars bringing pieces back from Africa to hang on their walls” had become “scandalous.”Footnote 50 Hanging on the walls of a faculty office, these high-quality, authentic cultural objects conveyed to visitors that a professor had spent a long time in an African country and had acquired a discerning eye for traditional art.
Many others merely wanted souvenirs to remember an often-momentous time in their lives and were dissuaded by the onerous nature of the department’s permitting system. For expatriates, traveling to Lagos or Jos to deposit their objects with the department was often time-consuming, and it took at least several months for the department to conduct an inspection that would clear an “antiquity” for export. By the mid-1960s, the director appears to have been responsible for inspecting over a thousand objects each year by foreigners seeking legitimate export permits, and the total number of objects inspected must have been substantially higher when accounting for illicit exports.Footnote 51 Objects languished in the department’s headquarters for years without receiving an inspection, and some were even lost, accidentally being added to museum collections or inexplicably disappearing.Footnote 52 Travelers whose objects were confiscated by customs officers may have received faster service from the department, because customs sent antiquities directly to department officials. In response to these delays, expatriates took the risk of exporting their items illegally. As a pottery teacher in Kaduna reported, “it is widely known that the present regulations are being circumvented…by ‘amateurs’ who are so put off by the cost of taking things to the Museum for export approval or the cost of delay.”Footnote 53
The permitting system was inefficient to a significant extent because it relied on various parties to identify illegally exported objects using a vague statutory category that provided little help in doing so. Department officials never gave consistent guidance about what sorts of objects were to be sent to them for inspection. Expatriates were sometimes told that, because their items could not be considered antiquities as a categorical matter, they should feel free to leave the country without seeking an export permit.Footnote 54 At other times, however, officials instructed customs to send all “cultural items” to Lagos for export clearance regardless of whether they were antiquities or not.Footnote 55 This broad language was never defined, and the department enforced the ordinance in a way that many visitors found arbitrary and absurd. In early 1967, officials heard rumors that Swiss employees of the Union Trading Company were illegally taking objects out of the country to protest the department’s refusal to issue export permits for items that were easily available in local markets ― the theory being that commonly available market items could hardly be considered precious antiquities worthy of state protection.Footnote 56 Regardless of the legal or moral merits of such arguments, without the cooperation of expatriates, the department’s enforcement tasks became much more difficult.
In claiming that they wanted to take objects that were common rather than rare, or cheap rather than expensive, or recently fabricated rather than old, expatriates made arguments about an ordinary understanding of the word antiquity, even though such considerations were irrelevant under the 1953 ordinance. While occasionally a collector would try to smuggle an object that might reasonably be deemed an antiquity in any context, as when a professor at the University of Ibadan snuck an old ivory carving from Ọ̀wọ̀ through customs, the vast majority of cultural objects that expatriates sought to export were recently made woodcarvings did not qualify under the everyday understanding of the word antiquity.Footnote 57
Judging by departmental correspondence, perhaps the most popular objects that expatriates sought to export were erè ìbejì, “twin images” in Yorùbá. These were small sculptures carved to memorialize the death of a twin, although from the late colonial era (and probably earlier) they had become a popular form of tourist art.Footnote 58 Viewed as “dolls” by some collectors, antiquities merchants sold ìbejì in markets throughout Nigeria. Yet the department also frequently forbade their export, building up a large collection of such carvings in Lagos.Footnote 59 Of course, many ìbejì could be considered rare examples of both marvelous carving skill and spiritual expression, thus serving as the very sort of objects the department set out to preserve for the benefit of the Nigerian people. Many others were more mundane, carved for the tourist trade. Few members of the expatriate community on short trips appeared to understand their art’s historical significance and could sort the “genuine article” from “tourist” production, however.
In fact, customs officers could also lack expertise in sorting “antiquities” from other kinds of objects, an obstacle that emerged from the confusing use of the term itself. The head of customs in Lagos noted the “problem of…identification” that arose when “a customs officer is not always in the position to know” how to tell valuable antiquities from tourist art.Footnote 60 Ulli Beier, then director of the Institute of African Studies at the University of Ifẹ̀, concurred, indicating that “the present legislation is not clear to all customs officers, and… they find it hard to define an antiquity.”Footnote 61 In some cases, they compensated for this lack of an expert eye by inundating the department with “suspected antiquities” to inspect.Footnote 62 Ìbàdàn’s chief superintendent of police suggested that customs officers flag for inspection all wood objects (except those made of ebony) that did not “look brand new,” and all metal art objects (except spears and arrows), mirroring the directive of department officials who requested inspections of all “cultural items.”Footnote 63
Perhaps grappling with the enormous administrative burden such effort required of them, other customs officials used their own judgment to determine what counted as an “antiquity,” and were willing to listen to arguments made by expatriates. Far removed from the supervision of department officers, customs officials could exercise their de facto discretion and agree with exporters that their recent carvings were categorically not “antiquities.” “Many Europeans attempting to export them argue on the grounds of age only and often get away with this,” noted Anna Craven, curator of the Jos Museum. While “customs officers know the law,” Craven observed, they “do not know what antiquities are.”Footnote 64 As this important quotation suggests, at ports of entry, customs officers heard arguments from expatriates and used their own judgment to determine what objects should be regulated. Department officers occasionally saw the consequences of this police discretion, as when customs officers in Maiduguri took it upon themselves to mark cartons of art objects as containing “non-antiquities.” (The customs officials were correct, as it turned out.)Footnote 65
One might be tempted to attribute such examples of failure at customs to the perennial obstacle of corruption. It is striking, however, that almost no reports of bribery reached the antiquities department during this period, and bureaucrats and some outside observers dismissed concerns about corrupt border police.Footnote 66 If anything, in the eyes of at least one curator, customs officers were being too diligent in upholding the law, refusing to exercise judgment in deciding what objects should be sent for inspection and overwhelming the system (such complaints contradicted other guidance from the department).Footnote 67 Of course, like other crimes, bribery is hidden by its perpetrators from public view, and such activity probably did pick up in the aftermath of the Nigerian Civil War, when corruption became more widespread.Footnote 68 But if corruption had threatened the protection of Nigerian antiquities during this period, one would expect officials to acknowledge it even once. Nor is the point that customs officers were particularly incompetent. Instead, departmental reports speak to the understandable difficulty of non-experts in enforcing a vague and oddly worded statute.
It is notable that department officials themselves could lack an expert eye, requesting books on African art to aid in identifying antiquities.Footnote 69 Few in the department’s staff could have accumulated the sort of exhaustive knowledge of Nigeria’s artistic traditions that would enable them to tell the difference between a tourist object and an “antiquity” used for a “traditional ceremony” in every case. Other department officials used criteria for determining the age of an object that were easily forged, like the presence of dirt on a carving (signifying its having been placed in a shrine).Footnote 70 Indeed, some critics alleged that even leading experts could not tell the difference between an object made for a “traditional ceremony” and one made by the same artist for the export market.Footnote 71 Techniques to produce forgeries included naturally aging artworks for a few years after they were produced (to suggest that they had been used before their sale), drilling holes to indicate damage from termites, or pouring vinegar over metal works to create a patina. African and European dealers were also skilled at producing these false signs of authenticity, and they reportedly carried out these forgeries in workshops located outside of Nigeria.Footnote 72
Criticisms like these point to a problem with the 1953 ordinance beyond the word “antiquity”: the statutory standard for determining whether an object was an antiquity, “use in a traditional ceremony,” was too subjective and easily faked. In defending the use of the statutory term “antiquity,” curator of the Lagos Museum Emily Aig-Imoukhuede argued that the precise meaning of the term in a given national context depended on the specific cultural conditions that prevailed there. Unlike in Europe, where premodern traditions had long disappeared, in a country like Nigeria, “old cults are still alive,” and therefore “antiquities are still being produced.” For Aig-Imoukhuede, the problem with the ordinance was that the test for determining whether an object fell within the definition of “antiquity” ― whether it had been used in a “traditional ceremony” ― was often insufficient evidence of whether an object should be preserved.Footnote 73 Nigerian officials were far from the only preservationists who wrestled with this expansive standard of authenticity. As the sources discussed earlier suggest, however, the statutory definition of “antiquity” and the legal test for determining whether an object fit within it posed related problems. A more meaningful statutory category than “antiquity” would have provided some clues to customs officials about the sort of objects that departments curators were looking to keep in the country. “Antiquity,” a term that captures a kind of material culture whose survival is extraordinary, did not naturally focus the inquiry on the rituals of extant “cults.”
A fundamental misapprehension of the nature of the trade by high-ranking officials and the domestic and international press perhaps further enabled expatriates to manipulate the customs system. Much press attention during this period focused on the quantities of objects traded by shadowy African “smugglers” belonging to large-scale trading networks, which could be immense.Footnote 74 Yet European and American dealers helped coordinate much of the illegal domestic trade, and many illegally exported antiquities were taken out of the country by European and American expatriates, not professional criminals.Footnote 75 The “worst offenders,” as department officials put it, were the sorts of expatriates who traveled to Nigeria with some idea of doing good for the country.Footnote 76
The fate of the department during the civil war and the country’s oil-fueled recovery provides perhaps the best evidence that Nigeria’s inability to stop the flow of cultural objects out of the country was not solely determined by a lack of capacity to enforce criminal laws. The effects of the war were catastrophic. Upon Biafra’s declaration of secession, the department immediately lost control of its southeastern museums and many of its Nigerian officers. Its budget was also slashed, as the federal government turned its attention to destroying the secessionist state in the southeast.Footnote 77 There was little money available to control the export of “antiquities” out of Nigeria. The antiquities squad, the police force attached to the department, lost almost all its funding.Footnote 78 The violence itself dealt irreparable damage to the artistic treasures of southeastern Nigeria.
By the end of the war, however, the vast growth of Nigeria’s oil industry allowed for the investment of some of these revenues in cultural resources. The war hindered exploitation of the country’s oil reserves, but between 1970 and 1974, oil production rose rapidly, from 396 to 823 million barrels per year.Footnote 79 The federal government put a substantial portion of its newfound revenue in cultural activities.Footnote 80 In 1970, Nigeria’s Executive Council granted approval for the department’s most ambitious program yet, the Crash Programme. Conceived by Antiquities Director Ekpo Eyo, the program was designed to provide enough funds to purchase or preserve in situ every extant “antiquity” in the country, obviating the need to use customs offices as collection points, and to greatly expand the department’s staff.Footnote 81
During this period, the department also took additional steps to empower the government to prevent the loss of its “antiquities.” In 1974, drawing on recommendations of the 1972 Symposium on Nigerian Antiquities held at the University of Ibadan, the Executive Council of the federal government enacted the Antiquities Prohibited Transfers Decree, which finally banned the unregulated sale of antiquities within the country’s borders. The government could now police the illegal market without having to wait for dealers to attempt to export objects. The decree also mandated that private owners register their antiquities with the state, permitted searches of suspected dealers’ property, and allowed the department to compulsorily purchase antiquities.Footnote 82 Yet even these legal developments in the early 1970s were not enough to prevent the ever-increasing flow of antiquities out of the country. By the mid-1970s, officials seemed resigned to the continuing loss of the country’s artistic treasures. As government ethnologist Keith Nicklin remarked in 1975, “It is difficult to make any positive suggestion as to what can be done to improve the situation.”Footnote 83
Despite these constant enforcement obstacles, efforts to strengthen preservation laws never appear to have contemplated replacing the statutory category of “antiquity” with a potentially more stable regulatory object. In September 1979, on the cusp of a return to democratic rule, the military government enacted legislation that transformed the Federal Department of Antiquities into the National Commission for Museums and Monuments (NCMM). The decree imposed more regulations on the domestic sale of heritage objects, but preserved Murray’s definition of “antiquity” from the 1953 Ordinance.Footnote 84 By the 1970s, the term had thoroughly seeped into governmental discourse. The Department of Antiquities had devoted considerable resources to informing customs officials and the public about what antiquities were, through passport slips, airport advisories, newspaper advertisements, and explanatory booklets for customs officers, making any major changes to terminology impractical.Footnote 85
Nigeria today has been able to exert a much stronger control over the illegal trade, thanks in part to agreements with foreign states and museums, but the legal category of “antiquity” continues to undermine the protection of tangible heritage. A senior officer of the National Commission recalled an informational presentation that museum administrators gave to customs officers in which one member of the audience printed out the dictionary definition of the word “antiquity” and handed it to the curators. His intention was to point out the absurdity of the National Commission’s use of the term to refer to modern carvings.Footnote 86 Decades after the enactment of the 1953 Ordinance, the department continues to face obstacles in conveying the meaning of this strange statutory term.
Conclusion
To a substantial degree, the failure of the postcolonial Nigerian state to control the flow of “antiquities” was a failure of legal meaning-making. This episode serves as a potent reminder of how legal concepts can influence government action in ways that defy a singular focus on structural factors, even in the context of the “fragile” African state.Footnote 87 The theft of the Wúnmọníjẹ̀ heads, and the legislative example of Cyprus, encouraged officials to use “antiquity” as the main subject of regulation in Nigeria’s preservation statute. Informed by his interest in preserving African woodcarving and sculpture, Kenneth Murray expanded the definition of “antiquity” well beyond its ordinary meaning to encompass the art produced by living craft traditions. As a result, the language of the 1953 Antiquities Ordinance failed to create an object that could be easily transferred across the state’s regulatory domains. The Nigerian experience underscores the importance of accounting for statutes in the history of preservation in Africa, and in modern African legal history more generally.
In making this argument, I am not displacing structural accounts of the loss of cultural heritage. Many states in the 1970s and 1980s encountered some difficulties enforcing cultural property regimes. Moreover, there is also considerable truth to art historian George Nelson Preston’s observation, made in 1974, that “[w]hen a $2,500 [around $17,000 in 2024]-per-capita income is reached in Africa, you’ll see a decline in the flight of antiquities…. The legal and illegal sale of art grows out of poverty.”Footnote 88 But this article has shown that neither the economic standing of sellers nor the state’s fiscal capacity can adequately explain the flood of antiquities that left Nigeria in the 1960s and 1970s. By attending to the complexities of statutory meaning-making, we can complement structural explanations in accounting for Nigeria’s historical obstacles in stopping the illegal antiquities trade. Ultimately, this article has called for a view of the twentieth-century African state that pays serious attention to the European legal concepts enshrined in colonial statutes. The history of the Nigerian export permitting system helps us see that such concepts constitute one of the most enduring legacies of colonialism on the continent.
Acknowledgements
The author would like to thank Niyi Adegoke, Ken Alder, Osuolale Joseph Ayodokun, Sean Hanretta, Thomas Prendergast, David Schoenbrun, Helen Tilley, and two anonymous reviewers for their assistance with the research and writing of this article or the larger project of which it is a part. Research funding was provided by the Council on Library and Information Resources and the Social Science Research Council.
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