A constitutional crisis is unfolding in South Sudan after President Salva Kiir assented to amendments to the National Elections Act on September 21, 2026. The move has been met with criticism, with many arguing that it amounts to a coup d'état. According to Dr. Remember Miamingi, a constitution does not have to be suspended by soldiers to be overthrown; it can also be displaced from within through legislation and presidential assent.
The amendments have effectively dissolved the Revitalised Transitional Government of National Unity, or RTGoNU, three months before elections scheduled for December 22. The new arrangement keeps the President in office with full powers while removing the First Vice President and the other Vice Presidents from the power-sharing Presidency. This has raised concerns about the legitimacy and constitutionality of the move.
The opposition argues that the constitutional amendment on which the arrangement depends was not adopted through the procedures required by the Transitional Constitution and the 2018 Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan, the R-ARCSS. The amendment procedure was not optional, and Article 1.9.4 of the R-ARCSS requires amendments to be properly initiated within the Presidency and agreed by the other members.
Furthermore, Article 8.4 of the R-ARCSS requires approval by at least two-thirds of the Council of Ministers, consent by at least two-thirds of RJMEC voting members, and only thereafter legislative ratification through the constitutional amendment procedure. These conditions were not met, rendering the amendment unconstitutional and ultra vires.
The implications of this crisis are far-reaching. The amended National Elections Act cannot amend the Transitional Constitution or the R-ARCSS by implication, and it cannot do indirectly what the superior legal order requires to be done through constitutional and peace-agreement amendment. The R-ARCSS did not create a President surrounded by five optional assistants; instead, it constituted the President, First Vice President, and four Vice Presidents collectively as “the Presidency”.
The 2023 amendment to the Elections Act reflected this same architecture, providing that the President, First Vice President, and four Vice Presidents would remain in office during the election period until the next President took over. However, the 2026 Elections Act amendment cannot replace collective continuity with presidential continuity alone unless superior law first authorises the change.
The crisis has significant consequences for the future of South Sudan. The President cannot keep the benefits of an order he has dissolved. If the transitional order continues sufficiently to keep the President in office, its other constituent institutions and restraints cannot simply disappear. A separate and valid constitutional basis is required for the President to continue exercising full executive authority.
Key points
- The amendments to the National Elections Act have been deemed unconstitutional and ultra vires.
- The dissolution of the RTGoNU has raised concerns about the legitimacy and constitutionality of the move.
- The crisis has significant implications for the future of South Sudan and the exercise of executive authority.
