South Sudan: R-ARCSS Amendment Legality Questioned After Kiir's Decree

• On September 21, 2026, President Salva Kiir assented to amendments to the National Elections Act.
• The following day, President Kiir dissolved the Revitalised Transitional Government of National Unity, three months before scheduled elections.
• The new arrangement keeps the President in power while removing the First Vice President and other Vice Presidents from the power-sharing Presidency.
• Legal analysis suggests the constitutional amendment underpinning these changes did not follow procedures required by the Transitional Constitution and the 2018 R-ARCSS.
• This situation is described as a 'constitutional or incumbent coup,' as the amendment is deemed unconstitutional and incapable of producing its claimed legal effects.

An amendment made outside mandatory procedures is unconstitutional and ultra vires, meaning it exceeds the legal authority of those who purported to create it.

On September 21, 2026, President Salva Kiir approved amendments to the National Elections Act in South Sudan. The very next day, September 22, President Kiir announced the dissolution of the Revitalised Transitional Government of National Unity (RTGoNU). This significant move occurred just three months before national elections were scheduled to take place on December 22, 2026.

The new governmental structure, as established by these actions, maintains the President in office with his full powers. However, it simultaneously removes both the First Vice President and the other Vice Presidents from their roles within the power-sharing Presidency. While the government has characterized these changes as an "electoral transition," legal experts argue the implications are far more profound, pointing to fundamental issues regarding the South Sudan R-ARCSS amendment legality.

The core legal issue stems from the process by which the constitutional amendment, upon which the new arrangement rests, was adopted. Critics contend that the procedures mandated by the Transitional Constitution and the 2018 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) were not followed. An amendment enacted without adhering to these mandatory procedures is considered unconstitutional and ultra vires, meaning it exceeds the legal authority of those who purported to create it. Such an amendment cannot legitimately rewrite the established constitutional settlement or serve as a valid source of presidential authority.

The R-ARCSS itself outlines specific rules for altering the transitional settlement. Article 1.9.4 requires that any amendments to the Transitional Constitution and the R-ARCSS must be properly initiated within the Presidency and subsequently agreed upon by its other members. Furthermore, Article 8.4 stipulates that such amendments require approval by at least two-thirds of the Council of Ministers, followed by the consent of at least two-thirds of the RJMEC voting members, before legislative ratification can proceed through the constitutional amendment procedure. These are not mere political courtesies but conditions of legal competence, designed to prevent any single party to a post-conflict agreement from unilaterally altering the foundational bargain. RJMEC itself affirmed in 2026 that these procedures govern amendments during the Transitional Period, yet the amendment process reportedly advanced to Parliament without the necessary consent under Article 8.4. The Constitution's Article 199, which prescribes special parliamentary thresholds and timing for constitutional amendments, was also reportedly not satisfied, and presidential assent cannot rectify these fundamental defects.

The legal argument posits that South Sudan has experienced what is termed a "constitutional" or "incumbent coup." This refers to the retention of public power through the unlawful dismantling of the constitutional and peace-agreement order from within the system itself. Presidential assent, while completing a validly made law, cannot create constitutional authority where the Constitution and peace agreement have expressly withheld it. Consequently, the amendment is not merely irregular; it is deemed incapable of producing the constitutional consequences claimed for it. If the instrument that purports to alter the transitional order is void, then any subsequent actions or structures built upon that alteration must be evaluated against the lawful constitutional order that remains in force.

This same defect extends to the amended National Elections Act. As ordinary legislation, an Elections Act is intended to regulate elections; it cannot implicitly amend the Transitional Constitution or the R-ARCSS. It is legally prohibited from achieving indirectly what the superior legal framework requires to be done through explicit constitutional and peace-agreement amendment. The R-ARCSS, specifically Article 1.5, established the Presidency as a collective body comprising the President, First Vice President, and four Vice Presidents. This article was crucial for distributing executive responsibility among the peace-agreement parties and embedding principles of consultation and shared decision-making within the transitional executive, intended to function until authority could be transferred to the populace through democratic elections.

Source: Original reporting via legal commentary