32,000 & Counting: Article 11 of The Constitution of Kenya and the Restitution of Cultural Property

Abstract

Aside from racism, subjugation and violence, colonialism effectively erased many facets of indigenous history. The alienation of cultural heritage was a core mechanism through which this was achieved. Not only did the coloniser enforce his own ‘civilised’ notions of what constituted ‘proper’ society, he engaged in the pillaging of various cultural properties whilst simultaneously advocating for a near complete deletion of traditional life. Seized cultural objects would meander their way to Europe to be displayed, catalogued and famed as ‘curiosities’, the exhibition of the savage; what European excellence sought to ‘correct’ in all its charity. The Constitution of Kenya 2010 aims to foster a society built upon Kenyan culture. Article 11 is the spotlight under which these objectives manifest. The State is tasked with a duty to promote all forms of cultural expression including cultural heritage. This signals a reclamation of the country’s attachment to its roots, to repair what was lost and transmit it to future generations, such that historical cultural deprivation never occurs again. Various communities have pleaded with European countries for the return of their cultural properties. Not many have been successful, owing to various factors and the reluctance on the part of European museums and governments to release these objects. This paper seeks to examine the nature of cultural heritage, particularly cultural property and its importance to the Kenyan situation, highlighting that the State has a duty under Article 11 to engage in restitution efforts of the said properties.