The Case Against “Restitution”

Part 1 – The Trap

No self-respecting nation begs a thief to return its heritage. Yet African governments keep doing exactly that. They champion “restitution,” and in the process hand the thief the rulebook he wrote.

Consider Belgium’s 2022 ceremony. King Philippe handed the Kakuungu mask of the Suku people to the Democratic Republic of the Congo. It was not a return. It was an indefinite loan. Belgian law made anything else impossible: federal collections cannot be given away. The palace reached for the only available word, and the word performed its designed function. Brussels remained the owner of record. Kinshasa became a custodian of its own ancestors, on Belgian sufferance.

This is what “restitution” does. It frames the former empire as the rightful owner who might, out of enlightened generosity, bestow a favor. Ongoing unlawful possession is rebranded as European charity. Ask nicely enough, for long enough, and the thief might return a few pieces. The frame is the trap.

Part 2 – How Europe Protects Its Loot

To understand why the trap is so effective, we must understand the legal fortress Europe built around its own patrimony. Three principles do the work.

Inalienable. Once an object enters the French or Belgian public domain, it cannot be sold, given away, or signed over by any government official or museum. The state’s title is absolute. This principle dates to the Edict of Moulins in 1566, three centuries before the sack of Abomey.

Imprescriptible. The state’s ownership never expires. If a public object is stolen, even if it is missing for hundreds of years, the state retains the right to reclaim it without any time limit. In 2022, France’s highest administrative court ruled on a medieval manuscript that a family had bought at public auction in 1901 and held in good faith for one hundred and seventeen years. The manuscript, the court held, had never ceased to belong to the public domain. The family could be compensated for its lost enjoyment, never for the property, because the property was never theirs.

Unseizable. Creditors cannot seize these objects to pay off public debt. They are sacred, permanent, untouchable.

When a seized African object entered a French or Belgian collection, a quiet alchemy occurred. The object became part of the fortress. From that moment the burden shifted: the holding state no longer needed to defend the original taking; the challenger had to attack a finished product of European property law. Take under unequal power, place the object under the protection of your own rules, then treat those rules as the only relevant ones. Residual power, in its purest form.

The fortress is not an abstraction. It is a machine, and it chewed up its own most celebrated challenger. In 2018 France produced the most publicized restitution document ever commissioned: the Sarr-Savoy report, ordered by Macron himself, recommending full and permanent return of African heritage taken without consent. A presidential mandate, global praise, the strongest hand the petition model will ever hold. Whatever its authors intended is beside the point; the yield is the point. Twenty-six objects to Benin, released through a one-time statute drafted as a named exception, out of collections built on tens of thousands. The fortress of inalienability stood untouched, and Savoy herself ended up describing an administration multiplying tactics to smother the debate it had commissioned. Even judged inside its own paradigm, the sequence convicts itself: a debt acknowledged in full and paid in paper. And that is restitution functioning, not failing. Making a people petition for its ancestors, praising the petition, and keeping the ancestors has a name: humiliation.

Colonial rule itself was once legal under European public law. Resistance was frequently illegal under the same systems. No one today treats that contemporaneous legality as a reason to question African independence. Legality under the rules of the stronger party at the moment of the act is not enduring title. A legal order that denied a people the right to govern themselves cannot be the sole arbiter of whether their gods, their kings, and their dead were lawfully taken. The same answer that nullified colonial sovereignty nullifies the colonial title to the objects.

Part 3 – The Real Decolonial Move

As long as African states play petitioner and ask for restitution, they tell the world they accept the thief’s jurisprudence. The alternative is not to beg more cleverly. The alternative is to refuse the premise.

African states need different vocabulary. Not “restitution.” The European public domain rests on a tripod: inalienability, imprescriptibility, unseizability. African heritage must claim the same tripod: inalienability, imprescriptibility, unseizability, grounded this time in the source community’s law at the moment of taking. The claim is a status, not a request. These objects belonged to a sovereign domain, and that domain carried, from the beginning, the same three protections Europe claims for its own.

Originally inalienable. Incapable of lawful transfer under the law of their source communities, so no subsequent transaction could cure the defect.

Originally imprescriptible. The claim does not age, because no clock ever started running against a title that never moved. A century of European possession does not age the claim into extinction.

Originally unseizable. Immune from seizure. Not attachable for anyone’s debts, a protection the DRC, hunted for years by vulture funds, needs no lecture on.

Original inalienability is the flag. The full triad is the claim. Same rules, earlier date. But this is not only a litigation argument. It is, first and foremost, a constitutional act.

Imagine the Democratic Republic of the Congo enshrining in its heritage code the same three principles Europe uses to guard its own treasures. All cultural heritage removed during the colonial period is declared inalienable, imprescriptible, and unseizable. No president or museum director can ever give it away; the law asserts that it was never capable of being given away, that no length of time can extinguish the nation’s claim, and that no creditor will ever touch it. The mask under Congolese law, the throne under Beninese law, the bronze under Nigerian law: none of them ever left the sovereign domain.

This is not theory. It is the mirror image of the Edict of Moulins, now claimed by the rightful sovereign.

What does this achieve? It changes the nature of the conversation. An African government no longer enters a diplomatic meeting or a UNESCO forum and says, “We request the restitution of our heritage.” It says, “Under our law, these objects are and have always been inalienably ours. Your possession is unlawful. Let us discuss the modalities of their return.” That is not a petition. It is a claim of right grounded in a sovereign legal order. The two parties are now, for the first time, on the same level.

It also changes the story a nation tells itself. It means that when a Congolese child sees the Kakuungu mask in a textbook, she learns that it belongs to her people, not that it is on loan from a Belgian king.

This is the first step of decoloniality: to stop trying to change the colonizer and to change ourselves instead. To refuse the neo-colonial posture of waiting, hoping, and begging for a moral awakening in the former metropole. Restitution is an acceptance of the status of the neo-colonized. Original inalienability is the first refusal.

Part 4 – The Right Conflict

I am not naive. Adding a law to a statute book will not make the objects magically reappear in Kinshasa or Cotonou. It will not force a French museum to open its vaults. What it will do is set up a bigger, more honest conflict. A conflict of laws. A conflict of sovereignties.

And that is the right conflict to have.

The wrong conflict was pleading inside the thief’s courtroom, hoping to win a few objects case by case. The right conflict is two sovereign legal orders facing each other, each insisting on the inalienability of the same object, and the world having to decide whose foundational principles it will respect. When France declares the Abomey throne untouchable because of the Edict of Moulins, and Benin declares it untouchable because it was never alienable under Dahomean law, we are no longer having a discussion about guilt or charity. We are having a discussion about jurisdiction. About whose law defines reality.

A sovereign claim is more than moral posture. It is the legal foundation from which concrete pressure flows. A nation that declares original inalienability is no longer a supplicant asking for a gift. It is a title-holder asserting a continuing right. That changes everything downstream. Museums holding disputed objects face pressure to run provenance audits ahead of lawsuits rather than after them. Insurers begin pricing the risk of holding stolen property. Lenders demand anti-seizure guarantees before anything crosses a border. Western museum boards, faced with a formal declaration that they are in possession of objects legally defined as inalienable stolen patrimony, must explain to their own public why they continue to hold them.

None of this requires a single case to be won in a European court. Exposure alone changes behavior. And when lawsuits do come (most usefully in the United States, where courts have lifted foreign-state immunity over property taken in violation of international law once the institution holding it does business in America), the legal ground has already been prepared. The nemo dat principle applies: no one can sell what they do not own, and no individual chief or intermediary held authority to sell communal, ceremonial property. The Abomey throne, taken as war booty from a sovereign state at war with France, fails under the very international law European powers wrote for themselves. And the notorious defense that colonial victims were “their own nationals” and thus their dispossession an internal affair? That defense impeaches itself. The empires spent their entire existence refusing their colonized subjects citizenship. They cannot now confer nationality retroactively for the sole purpose of barring people from the courtroom.

These legal tools are valuable, but they are secondary. They are leverage that serves the sovereign claim. The claim itself was born the moment an African nation looked at the thief’s rulebook, stopped asking for a page, and wrote its own.

Part 5 – The End of the Beggar’s Role

A final word. This is not a roadmap for quick victories. A rights claim reads as a threat, and threatened governments do not reliably concede. They litigate, delay, fund the defense, wait out the news cycle. Better law does not guarantee faster return. It only guarantees that when the object finally moves, everyone understands why it had to. And that, in the long struggle of decolonization, is everything.

Words construct legal reality. For decades, the word “restitution” has constructed a reality in which the thief owns the loot and the victim waits for charity. Original inalienability constructs a different reality. It says: the object was never owned. The only open question is how long the holder can keep insisting otherwise, and how long the world will pretend that insistence is the same thing as right.

Reclamation does not begin in European parliaments. It begins by rejecting the premise that Europe’s parliaments have anything to decide. It begins, as it must, with a sovereign people declaring, in their own law, that their gods, their kings, and their dead were never anyone else’s to hold.