ICCrOM COnserVatIOn studIes 8 Cultural Heritage and the Law prOteCtInG IMMOVaBLe herITAGe In enGLIsh-speakInG countrIes Of suB-saharan afrICa ICCROM COnServatIOn StUdIeS 8 Cultural Heritage and the Law PROteCtInG IMMOVaBLe heRITAGe In enGLISh-SPeaKInG COUntRIeS OF SUB-SahaRan aFRICa EditEd by Webber Ndoro, Albert Mumma and George Abungu african cultural heritage organisations Africa 2009 Conservation of immovable Cultural Heritage in sub-Saharan Africa Current partners in the programme include: African cultural heritage organizations, ICCROM (www.iccrom.org), UNESCO World Heritage Fund (www.unesco.org/whc), CRAterre-ENSAG (www.craterre.archi.fr), EPA (www.epa.net) and CHDA (www.heritageinafrica.org) Financial partners for the Projet Cadre include: Sida; UNESCO the World Heritage Fund; the Italian, Finnish and Norwegian Ministries of Foreign Affairs; Swedish National Heritage Board; and ICCROM. In addition to some funding available directly from the Projet Cadre, Projets situés have been sponsored by: the World Heritage Fund, the French Embassies (Ghana, Kenya, Uganda, and Niger), the World Monuments Fund, and national heritage organizations. Some international and local private companies have also contributed to Projets Situés. Cultural Heritage and the Law: Protecting Immovable Heritage in sub-Saharan Africa Edited by Webber Ndoro, Albert Mumma and George Abungu ICCROM Conservation Studies 8 ISBN 92-9077-213-1 © 2008 ICCROM International Centre for the Study of the Preservation and Restoration of Cultural Property Via di San Michele, 13 00153 Rome, Italy www.iccrom.org Designed by Maxtudio, Rome Printed by Ugo Quintily S.p.A. Contents Preface v MOUNIR BOUCHENAKI introduction vi GEORGE ABUNGU AND WEBBER NDORO Challenges of heritage management in Africa 1 1 JOSEPH EBOREIME introduction to heritage law in Africa 7 2 VINCENT NÉGRI introduction to international conventions and charters 13 3 on immovable cultural heritage Dawson MUNJERI Legal definitions of heritage 25 4 WEBBER NDORO the ranking of heritage resources and sites in legislation 37 5 WEBBER NDORO AND DONATIUS KAMAMBA Administrative arrangements for heritage resources 43 6 management in sub-Saharan Africa GODFREY MAHACHI AND EPHRAIM KAMUHANGIRE Management mechanisms in heritage legislation 53 7 WEBBER NDORO AND HERMAN KIRIAMA Powers and obligations in heritage legislation 65 8 ANDREW HALL implementation and enforcement of heritage laws 79 9 PAUL MUPIRA Legal provisions on financial and human resources 89 10 for heritage conservation MUNDUMUKO SINVULA Framework for legislation on immovable cultural 97 11 heritage in Africa ALBERT MUMMA Heritage policy and law-making processes 109 12 ALBERT MUMMA aPPendIx 1 114 Heritage laws in sub-Saharan Africa aPPendIx 2 116 Glossary and definitions aPPendIx 3 120 Charters and conventions iv CULTURAL HERITAGE AND THE LAW Preface HE AFRICAN CONTINENT HAS an extremely rich and varied cultural heritage, and though its movable heritage (masks, statuettes, textiles, oral traditions, myths, etc) has long been better known, its immovable heritage – monuments, ensembles, sites and landscapes – merits similar recognition, given the extraordinary potential for development that it represents. T As the cradle of humanity, Africa is where the first traces of early hominids were found, as well as the most ancient tools produced by humankind. The continent has numerous traces that each illustrate a period or notable event in its long history. But beyond that, one of the salient characteristics of African peoples is their relationship with nature. Often they have been able to shape nature, working with it and using the traditions, knowledge and know-how that they wisely adopted. This relationship has engendered many spectacular cultural landscapes and a variety of sacred places: rivers, mountains, forests, etc. Some of the ritual or commemorative practices that have grown up around these special sites are still alive and have few counterparts in the rest of the world. Among these are the practices or rules that are, in fact, genuine lessons in sustainable development, well before the concept became a trend in modern-day society. Thus, African immovable cultural heritage is particularly worthy of interest. It contributes to the understanding of the cultures of the world proposed by UNESCO’s World Heritage List and should become more fully represented there in the years to come. Yet, faced with globalization and the mechanisms accompanying it – especially the development of urban areas and infrastructures – entire sections of this heritage are at risk. Still, they often play a decisive role in the quality of life of the communities who use them or live near them. Given these conditions, one cannot but rejoice at the progress recently made by African institutions in charge of cultural heritage under the impetus of the AFRICA 2009 programme and its partners – both operational and financial. The publication of this work is, therefore, also an occasion for me to express my deep appreciation to all those, near and far, who contributed to the successful outcome of this programme, which will draw to a close on 31 December 2009! Among the objectives set by AFRICA 2009 are the essential ones of reinforcing and above all implementing the legal and administrative measures that determine national capacity to protect and enhance the national and local heritage. Nevertheless, although considerable progress has been made in recent years, there is still much to do. This is why the present volume – for which I am privileged to write the preface – is so important. The information, recommendations and comments on recent experiences contained here make it a unique tool. The language used is clear, making these legal notions accessible to heritage professionals. By de-mystifying “legalese,” it resolutely positions itself as a provocative tool at the service of change, taking into account not only the specific nature of different sorts of heritage but also the capacities and needs of the various parties involved. With all of its qualities, I most strongly recommend this volume to those in charge of African heritage – to be read attentively and also shared with their partners and heritage stake-holders in various places. Also make sure it is read by the highest cultural authorities in your countries who, I hope, will encourage and support you in your task. I am convinced that working together in this framework of cooperation, coherent and above all applicable measures can be adopted and effectively applied. Ladies and Gentlemen in charge, spare no effort! All of Africa will be grateful to you! MouNir BoucheNAki Director GeNerAl iccroM introduction v Introduction HIS BOOK ON LEGAL FRAMEWORKS on immovable cultural heritage in English-speaking sub-Saharan Africa is an attempt to document and analyse the existing legal frameworks in the English- speaking African countries, addressing the history, development and contexts in which they were founded and used. The book provides an analysis of the current legal frameworks in the various Tcountries and their origins. It addresses the fact that in the English-speaking countries of the continent there has been a replacement of the traditional customary regulatory practices with English Common law; however, for French, Portuguese and Spanish-speaking Africa, the Roman law has been applicable since the beginning of colonization. In the southern part of Africa Roman-Dutch laws were also implemented, given the historical events which initially brought the Dutch and later the English to this part of Africa. Africa is recognized not only as the cradle of humankind, but also as a continent of great antiquity and civilization with many varied layers of history. It is a continent where heritage is embedded in movable and immovable, tangible and intangible heritage. African heritage is, therefore, not only admired and appreciated but is also lived and used. This fact is captured by nearly all the contributors to the book; it makes this heritage unique, requiring special attention. It is the continent where the tangible and the intangible are in many cases intertwined and, as such, there is often no straight dividing line between tangible or intangible, cultural or natural heritage. However, Africa is not a monolithic entity but a continent with regional and local diversity. All the contributors to the book highlight that Africa’s legal heritage has been much structured by colonial powers and their actions and that the previously existing institutions of heritage protection underwent drastic changes with the introduction of new legal systems. These resulted in the transfer of power and responsibilities from communities to central colonial governments and often led to the centralization of heritage management. The colonial periods also saw the redefinition of heritage from an African perspective to a western perspective, e.g. monumental, aesthetic and at times modern traditional values; thus many of the values that had provided the rationale for the protection of Africa’s heritage in the past, particularly its intangible elements, often became objects of ridicule and were discarded. What was traditional became superstition and was often associated with witchcraft under the new colonial system. The belief systems that were part of the heritage became elements of disapproval; the destruction of the same being spearheaded both by governments of the day, as well as the Christian missionaries in the name of cleansing and salvation. Thus, even