To bridge disagreements between conflict parties during the early stages of a mediation process, mediators like to apply creative ambiguity where they deliberately use ambiguous language for sensitive issues. Agreeing on broad concepts such as ‘democratic governance’ or ‘justice’ is often easier since the words allow for different understandings of what this will entail in practice. Such ambiguity, however, can raise problems during the implementation of a peace agreement. If conflict parties ascribe different meanings to certain terms and provisions, they are likely to clash again at the implementation stage. For this reason, peacemakers and mediators try to reduce ambiguity as much as possible before parties sign a peace agreement.
Challenging such conventional wisdom in the field, this blogpost discusses how maintaining ambiguity in a peace agreement can help bring about solutions to conflicts. A case study of Northern Nigeria illustrates how ambiguity allowed for reconciliation between groups with irreconcilable worldviews. In such cases, the critical question is not about how to reduce ambiguity at all levels, but how ambiguity can enhance the peaceful settlement of disputes if managed well during implementation. When is it useful to leave ambiguity in an agreement? How do parties minimize problematic implications related to this ambiguity? And what are conditions for this to work?
The case of Nigeria: Reconciling differences between Muslims and Christians through legal ambiguity
Since its independence in 1960 Nigeria has been marked by a struggle for political power and cultural dominance between the predominantly Muslim North and the predominantly Christian South. While sharia law was practiced among Muslim communities in Northern Nigeria in pre-colonial times, the British introduced common law and a secular constitution, which limited the application of the sharia to civil and personal law.
The Arabic word sharia stands for Islamic ‘law’ and God’s right ‘way’ through life. Sharia consists of laws and rules derived from the Islamic scriptures (generally the Quran and prophetic traditions) that address all aspects of life, providing guidance for political organization, enforcing criminal law, regulating economic and social life, and orienting the ritual and individual conduct of Muslims.
In 1999, the twelve states of Northern Nigeria started to formally reintroduce what they refer to as sharia criminal law. To that end, most of them established sharia courts and enacted comprehensive sharia penal codes. They ran in parallel to the existing courts and penal codes under Nigerian common law. The degree of implementation of the sharia penal codes varied across these different states in Northern Nigeria. This formal reintroduction of sharia-based criminal law outraged large parts of the Christian-dominated southern states since it contradicts the Nigerian constitution in several aspects. Trials under new sharia criminal laws referring to harsh corporal punishments, such as amputation of limbs for theft or stoning for adultery, gave rise to nation-wide controversy. Even if sentences including such punishments were only pronounced in a small percentage of legal proceedings, they were highly publicized and drastically increased the distrust of Christians against sharia.
Several northern states created Hisba groups in parallel to the reintroduction of sharia criminal law. These semiformal groups were tasked with overseeing the implementation of sharia on various levels. Again, implementation varies greatly between states: some have official Hisba groups in uniforms and on government payroll, whereas in other states informal groups take on duties to monitor moral conduct. The creation of Hisba groups exacerbated the problem for opponents of sharia law, who saw them as unaccountable religious police forces threatening the state’s monopoly of violence. Moreover, reports of abusive behavior of certain Hisba groups towards the population became the subject of heated disputes.
Among large parts of the Muslim population in Northern Nigeria, however, the widening of the application of sharia law was and remains popular. Many perceive it as an assertion of their historic roots against the colonially imposed common law. Research shows that many Nigerian Muslims see the sharia as a framework for their community to flourish morally and economically in defiance of a corrupt political class. Formalizing sharia-based criminal law was seen as validating sharia in all aspects of life. This is considered an act of faith, which strengthens the foundation of a moral society.
In this context, many politicians in Northern Nigeria tried to gain electoral majorities among certain segments of the population by championing the reintroduction of sharia-based criminal law. By rolling back on these laws, however, politicians would risk being accused of questioning the Muslim way of life. The same tension applied to the Hisba groups. Once created in certain states, some Muslims considered them an institution safeguarding a pious and more autonomous Muslim community. Attempts to withdraw them led to accusations of invalidating Islam in Nigeria and giving in to pressure from Christian or foreign advocacy groups. These issues grew so contentious that violent incidences between Muslims and Christians in the early 2000s left several thousand people dead.
The conflict only calmed down after an implicit compromise emerged with the help of local and regional dialogue initiatives. It was based on an ambiguous legal arrangement including these major points: (1) Abandoning the implementation of sharia-based criminal laws (particularly corporal punishments) in practice, while formally retaining these laws in the jurisdiction of the northern states that had reintroduced them. (2) Regularly enforcing less contentious sharia provisions (mainly civil and personal law) in the northern states for Muslims. (3) Encouraging Hisba groups to assume a supporting role for the everyday practice of sharia civil law through guidance and counseling.
This solution did not result from a formal top-down negotiation process but from the work of locally rooted leaders who were cognizant of the explosive nature of the issue and able to recognize the respective needs of the other side.
Managing ambiguity: Clarity on practice with room for different interpretations
The practical implications of the compromise were clear: Enforcing uncontested sharia provisions legally and grounding them in everyday life with the support of Hisba groups, while leaving contested provisions in the law books with an implicit agreement not to enforce them. Keeping the agreement implicit and maintaining a certain ambiguity was necessary to make the deal work. It allowed both the ‘Christian side’ and the ‘Muslim side’ to remain aligned with their principles and beliefs. For many Muslims, the legality of sharia criminal law provisions in the law books symbolizes that these rules are still valid and that the relevance of Islam in Nigerian society is not reduced. In turn, many Christians who had vehemently opposed the sharia criminal law, are able to live with the fact that sharia laws are retained in the legal text, even if the contested parts do not translate into practice.
This had to remain unspoken. Had politicians overtly stated that not all sharia provisions would be enforced, this could have upset many Muslims for whom the sharia is sacred. Many Christians, in turn, may have taken offense if anyone had emphasized the fact that contentious sharia-based criminal law provisions remained legal because they formally violate the Nigerian constitution. The solution thus arose from a pragmatic and unspoken compromise based on a relatively high degree of clarity regarding practical implications.
During the process, it became clear that codifying but not enforcing certain sharia provisions is not actually all that different from the reality of many Muslim communities and how they envision an ideal Islamic society. According to many Muslims, provisions involving drastic corporal punishments primarily serve to deter behaviors like theft or adultery and should not be regularly executed. The burden of proof for such punishments is so high that they are very rarely enforced.
The key to the compromise was the emergence of clarity on the practical implementation, while maintaining the ambiguity in the implicit agreement. This allows for different ways to communicate and interpret it. Together with an informal political power-sharing arrangement between the Northern region of Nigeria and the South, this carefully established compromise facilitated conflict resolution between actors of diverging belief systems or worldviews.
At the same time, the approach of integrating ambiguity bears high risks. What stops those in power suddenly executing corporal punishments that are technically still legal in response to a grave crime or in a changing political climate? What would be the mechanisms for reviewing the practical implementation of the agreement? What about the dozens of people in Nigerian prisons who were sentenced to corporal punishment in the early days of the reintroduction of the sharia-based laws? Should these sentences be carried out or should they be pardoned? Demanding answers to these questions could reignite the conflict. The unspoken nature of this compromise implies a high level of uncertainty.
Implications for mediators
From a mediation point of view, several lessons can be drawn with regards to ambiguity: First, for this instance of ambiguity to ‘work,’ both sides need a clear understanding of the practical implications of the agreement.
Secondly, an implicit agreement on practice also requires room for leaders from both sides to communicate the solution to their communities in a way that signals alignment with their respective sacred principles and beliefs. For many Muslims, the agreement means that sharia retains its adequate place of morally orienting society towards an ideal of balance, justice, and economic flourishing For many Christians, the agreement means that the Nigerian constitution and human rights remain guaranteed in practice.
Thirdly, the implicit nature of the agreed solutions requires a high degree of trust, positive relations, and mutual understanding. Hence, the work of religious and community leaders and a wide range of interfaith-based initiatives cultivating dialogue and regular encounters between both sides played a central role.
This indicates that working with ambiguity in the implementation phase of an agreement can allow for solutions across communities with different worldviews. Trying to erase this ambiguity by formally harmonizing the written law with the law in action, however, would have threatened the agreement altogether.