Bi*l seeks stiffer penalties for desecrating cultural artefacts

Kenyan communities could soon start receiving financial compensation and royalties for the use of their cultures and cultural heritage should a proposed Bill sail through Parliament and be enacted into a law.

The Bill also proposes life imprisonment for persons or individuals found guilty of damaging a cultural property or heritage like a monument.

The Bill seeks to create a law that would compel individuals using a community’s culture and cultural artifacts for research and any other purpose to financially compensate the particular community.

For any person to use a community’s culture or cultural heritage, he or she shall have to seek authority from the community.

“A person who intends to use a culture or cultural heritage shall obtain the prior informed consent of the owner or owners of the culture or cultural heritage and acknowledge their ownership of the culture or cultural heritage and the geographical place where the culture or cultural heritage is practiced or occurs.

Cultural property

And persons, communities or social groups whose cultural property has been entered in a national database and wishes to loan, export, import and transfer it locally or internationally, shall, have to apply to the CS

The Culture Bill 2024 sponsored by the Leader of the Majority in the National Assembly Kimani Ichung’wah seeks to establish a legal framework for the management of culture in the country and breaks down the functions of both the National Government and the County Governments.

The Bill that has already gone through the first reading, provides for the establishment of a cultural database, access to information relating to the management of culture in Kenya, compensation to individuals, groups or communities for the use of cultural properties, research into culture and cultural heritage and the registration of cultural properties.

Indigenous technologies

If enacted, endangered communities, cultures, cultural expressions and indigenous technologies will be recognised, promoted and protected by public entities.

The Kimani Ichung’wa led Bill sets out penalties for individuals who fail to comply with the regulations as well as the framework through which cultural artefacts can be exported out of the country.

The Bill seeks to, among other objectives, ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and promote all forms of national and cultural expressions, including communication, information, mass media, publications, libraries and other cultural heritage.

“The Bill seeks to provide a framework to guide national cultural development,” it states in part.

If enacted into law, the Cabinet Secretary under whose docket falls matters of culture and heritage, shall, in consultation with relevant stakeholders and county governments, establish mechanisms for the determination and payment of compensation or royalties to communities for the use of their culture and cultural heritage.

To arrive at the financial figure, the CS should be guided by the impact of the culture or cultural heritage on the economy of the community; the economic value of the culture or cultural heritage; the cultural value of the culture or cultural heritage and whether or not the culture or cultural heritage shall be used continuously or periodically.

Other determinant factors would include the derivative works and the type of ownership of the derivative works; the type and amount of investment by a state organ in the culture or cultural heritage; the effect of the use of the culture or cultural heritage on the environment and the potential for large scale use of the culture or cultural heritage.

The CS shall register all cultural property and cultural practitioners, groups and associations as well as prescribe regulations to combat illicit trafficking of cultural property.

Once the law is enacted, it would be an offence for any person to steal or wrongfully be in possession of a cultural property or heritage.

It would also be an offence for a person to sell or transfer without a license or traffic, aid or abet another person to steal or commit forgery or fraud with the intent to have an article declared an article of cultural interest. Persons who fail to report imminent dangers to cultural expression, those who damage cultural property or removes or attempts to remove without authorization any cultural property shall have committed a crime.