14/04/2025
ARTICLE｜Cultural Heritage and its Legal Protection in Kenya since the Colonial Period
[Author]
Onesmus Kakoi MWATU,Department of Architecture and Built Environment, Technical University of Mombasa
[Abstract]
This paper documents and analyses the legal framework for cultural heritage protection in Kenya from the colonial period to the present. The study relied on literature review and historical data from various sources on cultural heritage legislation in Kenya. Since the legal definition of heritage and its categories was influenced by the colonial experience, which focused on the material aspects of heritage, it is observed that the legal framework for cultural heritage protection has, until 2016, overemphasized elements of tangible heritage. The limited attention given to intangible heritage has implied the exclusion of indigenous perceptions of heritage, a situation which impacts negatively on heritage management.
[Key words]
Cultural heritage, Legal protection
[Full Article]
→ Introduction
Since the colonial period Kenya has had six laws relating directly to heritage protection:
(1) the Ancient Monuments Preservation Ordinance, 1927 (repealed);
(2) the Preservation of Objects of Archaeological and Palaeontological Interest Ordinance, Chapter 215 (repealed);
(3) the Antiquities and Monuments Act, 1983 (repealed);
(4) the National Museums Act, Chapter 216 (repealed);
(5) the National Museums and Heritage Act number 6 of 2006;
(6) the Protection of Traditional Knowledge and Cultural Expressions Act number 33 of 2016.
Other laws which indirectly affect cultural heritage include the Physical Planning Act number 6 of 1996 (repealed), the Environment Management and Coordination Act number 8 of 1999, the Urban Areas and Cities Act number 13 of 2011 (together with the amendment act, the Urban Areas and Cities Amendment Act, 2019), the County Governments Act number 17 of 2012 (together with the amendment Act, the County Governments Amendment Act number 11 of 2020) and the Physical and Land-Use Planning Act number 13 of 2019. Has Kenyan domestic laws on heritage clearly identified the type of heritage to be protected? Does the scope of heritage in these laws exclude other forms of heritage? Is the legal framework adequate to protect and enhance the national and local heritage?
Through documenting and analyzing the legal frameworks for cultural heritage protection in Kenya from the colonial period to the present, this paper seeks to answer this battery of questions. The theoretical conception of heritage will be cast first before delving into the matters of law. The discussion on heritage law will pit colonial laws against post-colonial laws.
→ The Conception of Heritage
Does the challenge of conservation lie in the definition and understanding of key concepts such as heritage? The many possible meanings that can be attached to the basic notion of conservation are an important obstacle to any reflection regarding this topic (Rodwell, 2007, Vinas, 2005). Rodwell is particularly more emphatic: “Architectural conservation is handicapped by confusion and ambiguity in key elements of its vocabulary: heritage, preservation, conservation, restoration and authenticity” (Rodwell, 2007, p. 22).
A legal definition of heritage has a precision (or should have a precision) without ambiguity and influences the way heritage is administered or protected (Ndoro, W., 2009). This should remain the focus of heritage laws and instruments. However, the definition may be limited in its scope, thus excluding some heritage elements from protection. Secondly, the law does not always mirror reality, at best, it may reflect it (Negri, 2005, pp. 5-8). The way institutions operate is often another very useful source of information.
Various authors (Rodwell, 2007, Hodder, 1993, Layton & Ucko, 1999, Salvatore & Lizama, 2018, Ndoro, W., 2009 and Vinas, 2005) have made attempts to define cultural heritage, albeit, with differences in emphasis. Some see cultural heritage as physical entities fashioned by human actions (Layton & Ucko, 1999); others see it as an expression of meanings, values and claims based on material things (Hodder, 1993). For some, heritage is embedded in the movable and immovable, tangible and intangible (Ndoro, W., 2009), the intangible giving meaning to the tangible. Heritage construction is cyclic (Rodolff, 2006), being a synthesis of knowledge, legitimization of the knowledge, values, significance, meaning-making, and identity. Identities are expressed as heritage which becomes a basis for knowledge generation. This is illustrated in figure 1.
With slight modifications, a number of international instruments (charters, conventions, declarations and protocols) have categorized heritage as immovable and movable properties and sites, this largely applying to the tangible. The concept of intangible cultural heritage was not always part of the strong foundation of cultural heritage discourse. It was not until its meeting in 1989 that UNESCO adopted a resolution on the “safeguarding of traditional culture and folklore”. This paved the way for more reflections on cultural expressions and intangible heritage through declarations and conventions such as the 2001 Universal Declaration on Cultural Diversity; the 2003 Convention for the Safeguarding of Intangible Cultural Heritage; and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
While stressing the need to define clearly the type of heritage to be protected, since ‘a people’s heritage is much more than just archaeological sites and historic buildings…’, Ndoro (2009) identifies four approaches to the definition of heritage: (1) firstly, a definition of protected heritage which specifies particular places by giving the list of items and places to be protected, such as relics and ancient monuments. This list may, however, exclude important places or areas which could in future be considered as heritage; (2) secondly, a definition of protected heritage based on values of the heritage resources, such as archaeological, historical, architectural, scientific and aesthetic or artistic values. This list may not cover all the values. In addition, values may be subject to various interpretations; (3) thirdly, a definition based on land management or demarcation of places to provide general protection. Areas can be declared conservation or protected zones. This approach is found mostly in laws relating to environmental management and physical planning; (4) fourthly, a definition based on time scales (chronology) or historical value. A termination calendar date for what is protected is provided and, at times, the age of the heritage to be protected is given. With the termination calendar date, it means that as years pass, the extent of protected heritage does not grow. The alternative of specifying the age of the heritage, such as anything older than 100 years, provides an accumulated buildup of the protected heritage. (Ndoro, W., 2009, pp. 25-35).
Now we turn to the heritage laws.
→ The Colonial Period
The first legal instrument on the preservation of cultural heritage in Kenya was the Ancient Monuments Preservation Ordinance, 1927. This Ordinance was replaced in 1934 by the Preservation of Objects of Archaeological and Palaeontological Interest Ordinance, Chapter 215.
(1) The Ancient Monuments Preservation Ordinance, 1927 (Repealed)
Established to provide for the preservation of ancient monuments and objects of archaeological, historic and artistic interest, the Ordinance categorized cultural heritage into monuments and antiquities. Section 2 defined monuments as any structure, er****on or memorial, or any tumulus or place of interment, or any cave, rock-sculpture, inscription of monolith, which is of archaeological, historical or artistic interest, or any remains thereof (Kenya, Republic of, 1927). This included the site of the monument, the adjoining land and the means of access to the site. The Ordinance gave the colonial Governor immense powers of assigning cultural heritage value to properties and objects. For instance, an antiquity was defined to include any movable object that the Governor, by reason of its archaeological or historical association, may think it necessary to protect against damage, removal or dispersion. Furthermore, section 3 empowered the Governor to declare any monument or antiquity to be a protected monument by posting a notice of such intention of declaration in a conspicuous place on or near the monument or antiquity to which it relates (Kenya, Republic of, 1927). Whereas the Ordinance alluded to an Authority for purposes of guardianship of monuments and antiquities, the definition of the Authority in section 2 as “… all Senior Commissioners and any person or body of persons authorized by the Governor to perform the duties of an Authority…” provided a weak link to the envisaged guardianship. Individuals could easily abuse such powers accorded to them.
(2) The Preservation of Objects of Archaeological and Palaeontological Interest Ordinance, Chapter 215 (Repealed)
This Ordinance construed cultural heritage as monuments, these being objects of archaeological, palaeontological, anthropological, ethnological, prehistoric or historic interest, including the area of land in which such objects are believed to exist. The definition of monuments was similar to that in the Ancient Monuments Preservation Ordinance, 1927, with the inclusion of palaeontological, anthropological, ethnological, and prehistoric interest. Antiquities, as declared in the 1927 Ordinance, were considered as monuments in this Ordinance. The declaration of monuments by the colonial Governor was covered in section 6. Section 3 expounded on the requirements for an exploration license. Subsection (1) read: “Unless authorized by a permit issued by the Minister, no person shall by means of excavation or surface operations search for any object or archaeological or palaeontological interest” (Kenya, 1962). The requirements for an export permit were covered in Section 19 in which case the Minister would ‘as he may deem fit’ authorize or deny such exportation. This section did not allow for consultation between the Minister and a competent authority while granting or otherwise the export permit. Following the spirit of the 1927 Ordinance, the Preservation of Objects of Archaeological and Palaeontological Interest Ordinance made reference to an authority which may, with the sanction of the Minister purchase or take lease of any monument, accept a gift or bequest of any monument, and accept guardianship of a monument. Section two defined this ‘authority’ as: “a Provincial Commissioner or any person or body of persons authorized by the Governor to perform the duties of an authority…” (Kenya, 1962). As it was observed in the case of the Ancient Monuments Preservation Ordinance, 1927, the inclusion of individuals within the meaning of the ‘authority’ provided a weak link to the guardianship of monuments since individuals could be easily compromised.
The categorization of heritage as monuments and antiquities (the Ancient Monuments Preservation Ordinance, 1927) and as monuments (the Preservation of Objects of Archaeological and Palaeontological Interest Ordinance, Chapter 215) excluded intangible heritage, thus alienating local people from the administration of their natural and cultural heritage. Mumma (2009) observes that the colonial period saw the redefinition of heritage from an African perspective to a western perspective, that is, one of monumentality and aesthetics (Mumma, 2009, pp. 109-113). Consequently, many of the traditional values that had provided the rationale for the protection of Africa’s heritage in the past, particularly its intangible elements, became objects of ridicule and were discarded. This weakness of a European legal system transplanted to Africa has also been discussed by Ndoro and Kiriama (2009) in their book section Management mechanisms in heritage legislation (Ndoro & Kiriama, 2009)
→ Post-independence Kenya
Post independent Kenya witnessed the enactment of four Acts relating to cultural heritage: (1) the Antiquities and Monuments Act, 1983; (2) the National Museums Act, Chapter 216; (3) the National Museums and Heritage Act number 6 of 2006; (4) the Protection of Traditional Knowledge and Cultural Expressions Act No. 33 of 2016.
(1) The Antiquities and Monuments Act, 1983 (Repealed)
The first post-colonial law on cultural heritage, the Antiquities and Monuments Act, repealed the Preservation of Objects of Archaeological and Palaeontological Interest Ordinance, Chapter 215. The enactment of this law twenty years after independence, might imply that independence did not necessarily result in the breaking off with the cultural heritage protection system installed by the colonial power. Due to the public and administrative structures left by the colonial powers and developed in African territories, it was understandable that the principle of continuity (as dictated by economic and political realities) in the legal domain was found necessary by independent African states (Negri, 2005).
The Act construed heritage as movable and immovable, this including antiquities, monuments and protected objects. An antiquity was defined as any movable object other than a book or document made or imported into Kenya before the year 1895, or any human, faunal or floral remains of similar minimum age which may exist in Kenya.A monument was on the other hand defined as: (1) an immovable structure built before the year 1895, other than that which the Minister may declare not to be a monument; (2) a rock-painting, carving or inscription made on an immovable surface before the year 1895; (3) an earthwork or other immovable object attributable to human activity constructed before the year 1895; (4) a place or immovable structure of any age which being of historical interest, is declared by the Minister to be a monument. ‘Historical interest’ was qualified as “an antiquity which came into existence in or after the year 1800”. The definition included the site thereof and any adjoining land required for maintenance. Furthermore, a site on which a buried monument or object of archaeological or palaeontological interest exists or is believed to exist, together with the adjoining land, was declared ‘protected’ area under section 4 (1)(b). The application of the Act extended to monuments and antiquities on the seabed within the territorial waters of Kenya. A protected object was defined as a door or door frame carved in an African or Oriental style before the year 1946, or any other such object, which, being of historical or cultural interest, the Minister might declare as such.
Whereas the Act gave a list of items to be protected (following Ndoro’s (2009) Four Approaches to the definition of heritage), it is to be faulted for laying emphasis on age, archaeological, palaeontological, architectural and historic values without considering other values such as scientific and technological ones. Secondly, whereas the Minister could declare a place or an immovable structure of any age to be a monument, the definition gave priority to such structures which were built before the year 1895, this year corresponding to the establishment of the British protectorate in Kenya. That protected objects should have been in existence before 1946 must also be challenged. This form of definition, using a termination calendar date, in addition to discarding modern heritage, implies that the extent of heritage does not grow with the passage of time. The Act was not alive to article 1 of the ICOMOS Charter for the Conservation and Restoration of Monuments and Sites, Venice 1964, which intimated that modest works of the past would acquire cultural significance with the passing of time. The phrase in the definition of monuments “a place or immovable structure of any age which being of historical interest has and remains declared by the Minister … to be a monument” (Kenya, 1983 Article 2(d)) requires further interrogation. Since the Act defined historical interest to be “an antiquity which came into existence in or after the year 1800” (section 2), and an antiquity as “any movable object … made or imported into Kenya before the year 1895” doesn’t this bring some sort of contradiction to that which, being of any age, the Minister may declare to be a monument? The age is already locked to between 1800 and 1895. Technically a place or immovable structure outside these age limits could not qualify as a monument. The author agrees with Kyule (2016) that traditional resources are transitional. Kyule’s remarks are worth quoting in full: “the symbolic value of traditional or cultural resources cannot be restricted in a time capsule that declares certain cultural materials antique or otherwise, just because they existed before or after a certain date that has no significance on the existing cultural resource context” (Kyule, 2016).
(2) The National Museums Act, Chapter 216 (Repealed)
This Act was enacted to provide for the establishment, control, management and development of National Museums and for connected purposes. It also established the National Museums Board of Governors (the successor of the Museums Trustees of Kenya) and bestowed power on the Board to “operate as an authority within the meaning and for the purposes of the Antiquities and Monuments Act, and otherwise assist the Government in the administration of that Act” (Kenya, 1984, Section 8(1)(k)).
Section 3 outlined the functions of the National Museums as: (1) to serve as a national repository for things of scientific, cultural, technological and human interest; (2) to serve as a place where research and dissemination of knowledge in all fields of scientific, cultural, technological and human interest may be undertaken. (Kenya, Republic of, 1984).
(3) The National Museums and Heritage Act Number 6 of 2006
This current law on heritage repealed the Antiquities and Monuments Act, Chapter 215 and the National Museums Act, Chapter 216. It provides for the identification, protection, conservation and transmission of the cultural and natural heritage of Kenya. In addition, it consolidates the law relating to national museums and heritage and provides for the establishment, control, management and development of national museums.
The Act categorizes heritage into antiquities and cultural heritage. Whereas the definition of an antiquity is similar to that ascribed by the Antiquities and Monuments Act of 1983, this Act broadens the meaning of heritage beyond monuments and protected objects to cultural heritage. Cultural heritage is defined as: (1) monuments; (2) architectural works of universal value from the point of view of history, art or science; (3) groups of separate or connected buildings of outstanding value from the point of view of history, art or science; (4) works of humanity or the combined works of nature and humanity, and sites of outstanding value from the historical, aesthetic, ethnological or anthropological point of view. The definition includes objects of archaeological or palaeontological interest, objects of historical interest and protected objects. (Kenya, Republic of, 2006).
The Act introduces the terms “universal value and outstanding value”, but does not give the criteria for determining these values within the Kenyan context; the term was most certainly informed by the Outstanding Universal Value concept used in the 1972 World Heritage Convention. That the Act considers cultural and natural heritage is a good thing, another idea borrowed from the World Heritage Convention, 1972. Section 2 defines monuments as: (1) a place or immovable structure of any age which, being of historical, cultural, scientific, architectural, technological or other human interest, has been and remains declared by the Minister .… to be a monument; (2) a rock-painting, carving or inscription made on an immovable object; (3) an ancient earthwork or other immovable object attributable to human activity; (4) a structure which is of public interest by reason of the historic, architectural, traditional, artistic or archaeological interest attached to it, (5) a shipwreck more than fifty years old, and such adjoining land as may be required for maintenance thereof. The earlier requirement in the Antiquities and Monuments Act, 1983, that a monument is an immovable structure built before the year 1895 is struck off. This definition is progressive, for, it not only allows the inclusion of modern heritage, but also allows the list of heritage resources to keep growing. It is instructive that the Act considers shipwrecks more than fifty years old to be monuments. This is particularly important for the conservation of underwater heritage. Section 2(2) further notes that “This Act extends to heritage including monuments, antiquities and shipwrecks in lakes and waters within Kenya, or on the seabed within the territorial waters of Kenya”. It is, however, noted that the UNESCO Convention on the Protection of the Underwater Cultural Heritage, 2001, avers that underwater cultural heritage should have been underwater for over 100 years: “Underwater cultural heritage means all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years …” (UNESCO, 2001 (b) Article 1.1 (a)).
It is further observed that, in respect to underwater cultural heritage, the Act has not provided further regulations or details of the measures to be taken in: (1) guiding comprehensive protection for underwater cultural heritage; (2) harmonizing the protection of underwater cultural heritage with that of heritage on land; (3) providing archaeologists with guidelines on how to treat underwater cultural heritage. Following the spirit of the repealed Antiquities and Monuments Act, 1983, the Act is emphatic on the protection of monuments, antiquities, protected objects and sites; exploration licenses and dealership in antiquities including the requirement of export licenses. Whereas this is positive, it does not address the fundamental issues of benefit to communities. It is clearly silent on intangible forms of heritage. Kyule (2016) observes that the Act is not clear on the rights of community cultural heritage ownership, use and compensation for exploitation of the same and communal public-orientated approaches toward cultural heritage resources management.
In the light of this, Ndoro, et al, (2009) was right in asserting that most heritage legislation in Africa are concerned with monumental heritage, rather than other types such as vernacular architecture and intangible and spiritual heritage. There is, therefore, a need to contextualize the heritage laws for, as observed by Keitumetse (2016) “… African landscapes of outstanding universal value are commonly utilized for traditional purposes by local populations” (Keitumetse, 2016, p.24). It is argued that the Act did not take cognizance of the various UNESCO instruments on cultural diversity and intangible heritage such as the 2003 Convention for the Safeguarding of Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.
(4) The Protection of Traditional Knowledge and Cultural Expressions Act Number 33 of 2016
Enacted in 2016, the Protection of Traditional Knowledge and Cultural Expressions Act attempts to fill in the gaps identified in the National Museums and Heritage Act number 6 of 2006 regarding intangible heritage and cultural expressions. It also gives effect to articles 11, 40 and 69(1)(c) of the Kenya Constitution 2010.
Section 2 of the Act defines cultural expressions as any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed. They appear or are manifested in: (1) verbal expressions including stories, epics, legends, poetry, riddles; other narratives; words, signs, names, and symbols; (2) musical expressions including songs and instrumental music; (3) expressions by movement, including dances, plays, rituals or other performances, whether or not reduced to a material form; (4) tangible expressions, including productions of art, drawings, etchings, lithographs, engravings, prints, photographs, designs, paintings, including body-painting, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, pictorial woven tissues, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments, maps, plans, diagrams, architectural buildings, architectural models; and architectural forms. (Kenya, Republic of, 2016).
The section further defines cultural heritage as: (1) tangible cultural heritage including movable cultural heritage, immovable cultural heritage, and underwater cultural heritage; (2) intangible cultural heritage; (3) natural heritage including natural sites with cultural aspects such as cultural landscapes, physical, biological or geological formations; (4) heritage in the event of armed conflict. (Kenya, Republic of, 2016).
The Act successfully underscores the invaluable role of the intangible cultural heritage as a factor in bringing human beings closer together. It has accepted the importance of indigenous cultures in defining the heritage laws. In addition, it has brought together the spirit of the UNESCO 1972 World Heritage Convention; the UNESCO 2001 Convention on the Protection of the Underwater Cultural Heritage; the UNESCO 2003 Convention for the Safeguarding of the Intangible Cultural Heritage; the UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions; and, though a bit vaguely, the provisions of the Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict, 1954.
Despite these key highlights, the Act has not set out proper administrative procedures. Its operationalization largely lies with the National and County Governments. Section 43 (1) states that the Cabinet Secretary may make Regulations for the better carrying into effect of the Act. Section 43 (2)(a) reads, in part: “the regulations may provide for… administrative requirements necessary for the implementation of the provisions of this Act” (Kenya, Republic of, 2016).
(5) Other Relevant Legislation
It is worthwhile to shift focus to other laws that indirectly relate to cultural heritage. These include: (1) the Physical Planning Act number 6 of 1996 (repealed); (2) the Environmental Management and Coordination Act number 8 of 1999; (3) the Urban Areas and Cities Act number 13 of 2011 (including the Urban Areas and Cities Amendment Act, 2019); (4) the County Governments Act number 17 of 2012 (including the County Governments Amendment Act number 11 of 2020); (5) the Physical and Land Use Planning Act number 13 of 2019.
Section 47 (3) of the repealed Physical Planning Act number 6 of 1996 (as revised in 2012) stated: “All regional and development plans shall take into account and record all heritage declared or deemed to have been declared by the Minister under the National Museums and Heritage Act…” (Kenya, Republic, of, 2012). This section dealt with the preservation of immovable tangible heritage (buildings of special architectural values or historic interest). In addition to excluding intangible heritage, the Act did not provide a comprehensive planning mechanism for heritage conservation.
Similarly, section 38 (jj) of the Environmental Management and Coordination Act number 8 of 1999 (revised 2018) states that the national environment action plan shall “take into account and record all monuments and protected areas declared or deemed to have been declared by the Minister under the National Museums and Heritage Act” (Kenya, Republic of, 2018). Heritage protection measures must go beyond inventory; the Act should have laid bare the programme of action towards heritage protection within the environmental perspective.
Part Four of the Urban Areas and Cities Act number 13 of 2011 has seven sections dedicated to integrated development planning. It is unfortunate that none of these sections deals with conservation planning in respect to urban heritage.
Among the objectives of county planning as espoused in the County Governments Act number 17 of 2012, is to “protect the historical and cultural heritage, artefacts and sites within the County” (Kenya, Republic of, 2020)(Section 103 (g)). This Act does not make reference to any law on heritage, neither does it elaborate on the heritage protection mechanisms. It is, however, laudable that Counties are at the moment developing their own laws on heritage protection, such as the Nairobi City County Cultural Act, 2017.
Section 71 of the Physical and Land Use Planning Act number 13 of 2019 mandates County Governments to ensure the preservation of heritage sites. Sub article (2) reads: “All physical and land use development plans shall take into account and record all heritage sites declared or deemed to have been declared under the National Museums and Heritage Act, 2006” (Kenya, Republic of, 2019). The scope of heritage in this Act is limited to immovable tangible heritage, that is, monuments and buildings of special architectural value or historic interest.
It is therefore observed that the present planning and environmental laws have not done justice to the quest of heritage conservation. They cannot be relied upon to guide the preservation of cultural heritage within the urban context.
→ Conclusion
Until the enactment of the Protection of Traditional Knowledge and Cultural Expressions Act in 2016, all the heritage laws focused on tangible heritage (Tables 1 and 2). The local community has not been playing an active role in the definition and conservation of heritage. The Act successfully underscored the invaluable role of the intangible cultural heritage as a factor in bringing human beings closer together. Table 1 presents the scope of heritage definition in the cultural heritage laws from the colonial period to date.
Following the model developed by Ndoro (2009), the Four approaches to the definition of heritage, Table 2 elaborates on the various approaches to the definition of heritage in the country’s legal framework. The challenges identified have been outlined.
The current legislations (the National Museums and Monuments Act number 6 of 2006 and the Protection of Traditional Knowledge and Cultural Expressions Act number 33 of 2016) have made major strides towards the conservation of cultural heritage. Since tangible and intangible heritage is intertwined, with intangible heritage giving life to tangible heritage, it is proposed that these two Acts be merged into a single legislation. This will give the much-needed administrative and financial framework to the safeguarding of intangible heritage.
The heritage laws have, however, not been fully integrated with planning laws. Consequently, the concept of urban conservation may remain outside the purview of urban and regional planning for a long time. Synergy needs to be created between the planning and heritage laws since planning takes place within a cultural landscape.
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