An award-winning artist is threatening to sue the government over the statue President Kenyatta unveiled during his recent visit to Cuba.
Mr Oshottoe Ondula claims the sculpture of Kenya’s founding President Jomo Kenyatta, which now stands in Havana’s African Heroes Park, is a “butchered” version of the masterpiece he did for the government in 2010.
He says the “modification” amounts to violation of his intellectual property rights as it “was done without his express permission.”
He says he had registered the piece as intellectual property on July 25, 2010, under reference ILP/SLP/221147/NYC, by Cofylaw and Associates LLC in New York.
Mr Ondula says Cuba had in 2009 requested the Kenyan government to provide a statue of Mzee Kenyatta to be displayed at the park alongside other prominent Africa presidents whom Fidel Castro respected.
About 15 artists were invited to submit proposals and Mr Ondula won the bid.
The then National Museums of Kenya (NMK) Director General, Dr Idle Farah, appointed Dr Mzalendo Kibunjia, then Director of Sites and Monuments, to manage the project.
The terms of reference on his contract stated that for Sh3.5 million, he use fibreglass and cast method, and take six months for the project.
Mr Ondula handed the bust to NMK in 2009, he was paid as agreed and the contract ended.
“In 2011, I was called to the then Culture and Heritage Minister William ole Ntimama’s office to witness the handing over of the bust to the Cuban ambassador," he recalls.
"Also present was the then Director of Sites and Monuments Dr Hassan Wario.”
But in 2016, the statue issue arose as President Kenyatta wanted to travel to Cuba.
Cuba told the Kenyan government that the fibreglass could not withstand the Cuban heat and they needed to redo the statue with a heat-resistant material.
But Mr Ondula says he was not consulted and only came to know about the developments three weeks to the unveiling.
He reached out to NMK enquiring why he was not part of the entourage yet his work was part of the president’s agenda.
They informed him that his sculpture was rejected and they got another artist to undertake the work in Cuba.
Mr Ondula, however, says one of his lawyers from New York, who was present at the unveiling, told him the bust is a replica of his sculpture with some features chopped off.
“They made a mold, minus the hand of Jomo Kenyatta holding a fly whisk, and copied it,” says Mr Ondula.
“My lawyer asked me if I gave them permission but I gave no such thing. They just infringed on my intellectual rights.”
On March 16, Mr Ondula reached out to Kisumu Governor Anyang’ Nyong’o, who was in the delegation, to express his disappointment, saying it was “the highest act of impunity and corruption ever done to a work of art in our country”.
“Your work commissioned by the National Museums is indeed in Cuba. It stands in front of the Kenyan Embassy. But it was not the one unveiled,” Prof Nyong’o said in his response.
He explained that the Cuban authorities did not accept it due to its unsuitability to withstand the weather there and that MSK, working with the Cuban authorities, commissioned another bust “which is the one the president unveiled.”
But Mr Ondula could hear none of it.
He copied his letter to State House Chief of Staff Nzioka Waita, Head of Civil Service Joseph Kinyua, Solicitor-General Kennedy Ogeto, Foreign Affairs CS Monica Juma and her Sports, Culture and Arts counterpart Rashid Achesa.
He insists both governments had no right to duplicate his bust.
“They cannot copy, cast or alter anything on that bust without written approval from the creator,” he says.
“The copyright is encrypted on the sculpture as universally practised and its year of creation, in this case 2008. National Museum of Kenya bought the sculpture from me and not my intellectual property rights.”
Mr Ondula has been in the sculpting business for 25 years and some of his works include the lions at Kenyatta’s mausoleum, the little boy at the Supreme Court as well as the artefacts at the Tom Mboya, Kijana Wamalwa and Oginga Odinga mausoleums.
In 1983, he made the “Eagle” sculpture that President Moi presented to Queen Elizabeth.
The eagle is part of the Royal Collection Trust at Buckingham Palace.
His works have also been gifted to Indira Ghandi (1981), Pierre Trudeau (1981) and Nelson Mandela (1994).
Mr Ondulo also made the relief sculpture of Barack Obama Senior which was presented to the former US president by his grandmother during his visit in 2015.
In 1983 President Daniel Arap Moi awarded Mr Ondula the Head of State Commendation for his works.
But controversy, too, has followed his works.
In February 2014, a sculpture he had made for the Sikh community in Kisumu was destroyed days after its installation because some locals argued it encouraged idol worship.