Last week, the legal review of a bill under consideration by the French government was released. Following President Macron’s statement on the restitution of artefacts to African countries in November 2017 and the release of the controversial Sarr Savoy Report the following year, this is the first we’ve heard about specific legislation on the topic. The review was undertaken by the Conseil d’état, the body of experts that advises the French government on the legal viability of proposed laws, with the work completed in early March.

From what we can see, the bill says more by what is not included. First of all, this is not the widespread emptying of French collections feared by some. Nor does it reflect the approach proposed by Sarr and Savoy for a system of bilateral international agreements between France and African countries setting the stage for possible returns. If passed, this law wouldn’t even contemplate restitutions beyond a handful of listed pieces.

Those pieces are the 26 items looted by French troops in 1892 from Abomey (in the present-day Republic of Benin, see accompanying photos of two of the items) and the sabre of Omar Tall already returned last year on long-term loan to Senegal. The bill would formally remove those items from the French public collections – and those items only – effectively removing them from the rule of strict inalienability. That rule makes it impossible to remove items from French public collections without specific legislation, which is precisely what is being proposed here.

A bill that proposes the removal of items from the French public domain necessarily requires an assessment of its constitutionality. And so the Conseil d’état examined the usual constitutional considerations, including the proportionality of the law, its potential effects on public services and the public interest. The conclusion was that the proposed law passed the test: not only was the bill enacted in relation to France’s policy of cultural cooperation with Africa, but it targeted specific cultural items forming a circumscribed part of a public collection. As a result, the bill was found to abide by the constitutional requirements of French law.

The most interesting aspect of this constitutional study is what it implies about possible further returns of African objects from French collections. The Sarr Savoy Report had recommended a fairly broad series of returns emanating from proposed international panels established through bilateral treaties. What the current study seems to say is that such proposals, if put into French law, would not be narrowly tailored enough to pass muster under France’s Constitution. Thus any future returns would have to follow the model of the current ones being contemplated: i.e. they would have to relate to specific items within a circumscribed part of a collection. Anything beyond that would lack the necessary precision.

This means that the more radical proposals of the Sarr Savoy Report are likely dead in the water – constitutionally-speaking. Insofar as it deals with property to be removed from the French public domain, restitution can never be sweeping or precipitous; it must instead be slow, piecemeal, painstaking. Pieces set for return in the future will have to be itemised and set out in legislation each time a permanent restitution is sought.

The other option, of course, is to explore ‘temporary restitutions’ through the circulation of loans to the African continent. After all, creative solutions like these were proposed in the first instance by Macron in 2017; proposals Sarr and Savoy purposely veered away from in their Report. This time, though, it might not be the President who will prompt such a resolution, but the Constitution itself. We can only presume that the loan of items from French collections, even on a long-term basis, does not cause affront to the constitutional rules. The successful loan of the manuscripts to South Korea since 2011, referred to in the above link, is perhaps proof of this.

Finally, the Conseil d’état also considered in its review the future conservation of the items. This accords with the logic that, if something is removed from the public domain, the law must provide a process guaranteeing its wellbeing. An impact study revealed that the countries did have the necessary means in place for proper conservation (or were in the process of setting these up).

The bill is drafted such that the items removed from the public domain would first be placed within the French ‘private domain’ in order to then be transferred to the relevant country within a year’s time. In the circumstance where the recipient countries are not ready to accept the pieces, they could thus remain in the private domain until such transfer becomes feasible. This was considered an effective legal mechanism to ensure a proper outcome should the recipient countries not be ready. The conservation of the items could then be worked out via cooperation between France and the relevant country.

Considering the date of the study (3 March 2020) fell just before the major lockdown of France due to Covid19, it is unclear what – if anything – has been done in this matter since its completion. It’s possible that everything, including the inner-workings of the French state, is on hold until the country is safely out of the pandemic. While French shops opened in early May, certain museums like the Louvre stayed shut until only this month.

Once the law is passed the actual returns may take far more time. When people are concerned about supply chains and human wellbeing generally, the return of 27 items looted in the 19^th century may have to take a backseat. Nevertheless, at least France has done something on this question. It had been two-and-a-half years since Macron’s first declaration on the topic, and people were justifiably starting to wonder if anything would be done about restitution at all.

Postscript of 9 September 2020: The French National Assembly has now released the text of the Bill, as received by it on 16 July 2020. It consists of only two articles, one for the returns to Benin and the other for those to Senegal. The specific items for each (those referred to above) are then listed in two annexes. If voted for, the legislative text would require the items to be removed from the French public collection and returned to the countries of origin within a period of one year.

Images c/o the author from the Musée du Quai Branly-Jacques Chirac, Paris: King Ghezo statue and King Behanzin statue (late 19th century, artists Bokossa Donvide, Sossa Dede), taken from Abomey by French troops in 1892 and donated by General Alfred Dodds to the erstwhile Musée de l’homme in Paris. These are among the 26 items to be restituted to the Republic of Benin under the proposed French law.