South Sudan: Transitional Government Dissolution Questioned as Unconstitutional

• The National Elections Act, 2012 (Amendment) Bill, 2026, proposes dissolving South Sudan's National Legislature, State Assemblies, and State Governments, and removing the First Vice President and Vice Presidents.
• The Act also suggests the President can appoint caretaker Governors and remain in office until a new president is elected.
• These provisions contradict Article 104 of the Transitional Constitution, which specifies how vacancies for the First Vice President and Vice Presidents are filled and their tenure.
• The Revitalized Transitional Government of National Unity (RTGoNU) derives its legitimacy from the Revitalized Agreement and the Transitional Constitution.
• A statute cannot fundamentally alter constitutional provisions or establish a new form of government without a proper constitutional amendment process.

A legislative act, such as the National Elections Act, 2012 (Amendment) Bill, 2026, cannot unilaterally supersede or fundamentally alter constitutional provisions unless the Constitution explicitly permits such an amendment and the proper constitutional procedure has been rigorously followed.

The National Elections Act, 2012 (Amendment) Bill, 2026, introduces provisions that significantly alter the current governance structure in South Sudan, particularly concerning the Revitalized Transitional Government of National Unity (RTGoNU). Under Section 16(2)(a) of this Act, the National Legislature, State Legislative Assemblies, and State Governments are slated for dissolution within three months of the official announcement of an election date. This legislative move aims to clear the way for a new political landscape ahead of national polls.

Further elaborating on these changes, Section 16(2)(b) of the same Act empowers the President to partially dissolve the existing government and to appoint caretaker Governors, a measure intended to operate without prejudice to the broader dissolution outlined in Section 16(2)(a). The Act also addresses the presidential tenure during this transitional phase. Section 16(4)(a) stipulates that the incumbent President will retain office throughout the election period until a newly elected President is sworn in. However, Section 16(4)(b) introduces a critical change regarding other high-ranking officials, mandating the President to remove the First Vice President and all other Vice Presidents within three months of the election date announcement, citing Article 104(2) of the Transitional Constitution of the Republic of South Sudan as amended. This framework effectively seeks to establish a new form of interim administration, often referred to as a "Caretaker Government," through statutory means.

The existing constitutional order, however, presents a contrasting framework for governmental stability and succession. Article 104 of the Transitional Constitution of the Republic of South Sudan, as amended, specifically addresses vacancies in the offices of the First Vice President and other Vice Presidents during the Transitional Period. It dictates that should the First Vice President's office become vacant for any reason, including mental infirmity or physical incapacity, the replacement must be nominated by the top leadership body of the SPLM/A-IO, as it was constituted at the time of the Revitalized Agreement's signing. This replacement process is strictly limited to a maximum of forty-eight hours, and the successor is mandated to serve until the conclusion of the Transitional Period.

Similarly, for any other Vice President, Article 104 mandates that a vacancy during the Transitional Period, regardless of cause, requires nomination by the top leadership body of their respective party, as constituted at the signing of the Revitalized Agreement. This replacement procedure also has a forty-eight-hour limit, and the successor is to serve as Vice President until the Transitional Period ends. These provisions underscore a clear intent to maintain continuity and party-specific representation within the executive during the transitional phase. Furthermore, the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan, specifically Article 1.20.4, outlines that the National Elections Commission (NEC) is responsible for organizing elections sixty days before the Transitional Period concludes, ensuring the outcome reflects the electorate's will and aligns with a permanent constitution adopted pursuant to the Agreement.

The proposed dissolution of the South Sudan transitional government, including its executive, legislature, and state governments, as outlined in the National Elections Act, 2012 (Amendment) Bill, 2026, faces significant constitutional challenges. The legitimacy of the RTGoNU is fundamentally rooted in both the Revitalized Agreement and the Transitional Constitution. Consequently, any substantial modification to the government's constitutional structure, its composition, the tenure of its officials, or its authority must adhere to the constitutionally prescribed amendment process. A critical principle of South Sudan constitutional law implications is that a legislative act, such as the National Elections Act, 2012 (Amendment) Bill, 2026, cannot unilaterally supersede or fundamentally alter constitutional provisions unless the Constitution explicitly permits such an amendment and the proper constitutional procedure has been rigorously followed.

Therefore, the attempt by the National Elections Act, 2012 (Amendment) Bill, 2026, to establish a new governmental form, specifically a "Caretaker Government," without a direct constitutional basis, is problematic. The primary function of electoral legislation is to facilitate, regulate, and administer the electoral process itself, not to create or redefine the constitutional framework of governance. The Act's provisions concerning the removal of the First Vice President and Vice Presidents, particularly when contrasted with the specific replacement mechanisms and tenure outlined in Transitional Constitution South Sudan Article 104, highlight a potential conflict regarding Revitalized Agreement South Sudan compliance. This raises serious questions about the National Elections Act, 2012 (Amendment) Bill, 2026 legality and its capacity to effect such profound changes without a corresponding constitutional amendment.

The implications of the National Elections Act, 2012 (Amendment) Bill, 2026, if implemented as written, extend beyond mere procedural changes, posing a direct South Sudan RTGoNU constitutional challenge. The Act's provisions for the South Sudan transitional government dissolution unconstitutional could lead to a period of profound legal uncertainty regarding governmental authority and the validity of future state actions. By attempting to create a "Caretaker Government" through a statutory instrument rather than a constitutional amendment, the Act risks undermining the very foundations of the Revitalized Transitional Government of National Unity, whose legitimacy is derived from a carefully negotiated peace agreement and the existing constitutional framework.

This situation creates a precarious environment for the rule of law in South Sudan. The established constitutional mechanisms for executive continuity and replacement, as detailed in Article 104 of the Transitional Constitution, are designed to ensure stability during the transitional period. Bypassing these provisions through ordinary legislation could set a precedent where statutory law is perceived to override constitutional mandates, thereby weakening the constitutional order. For legal practitioners and international observers, this scenario necessitates careful monitoring for compliance with the Revitalized Agreement and the Transitional Constitution, as the legitimacy of any government formed under the Act's disputed provisions could be subject to ongoing legal scrutiny and operational risk.

Lawyers advising clients in South Sudan must be aware of the potential constitutional challenges to the legitimacy of any caretaker government formed under the National Election Amendment Act, 2026. This situation creates significant legal uncertainty regarding governmental authority and the validity of future actions, requiring careful monitoring for compliance and operational risk.

Source: Original reporting via {source}