In a recent development in South Sudan, President Salva Kiir Mayardit has issued Republican Order No. 32-9/2026, dissolving the government in preparation for general elections. The move has sparked debate among legal professionals, with some questioning the president's authority. However, Athian Akech, Head of Legal Administration in the Office of the President, argues that the order is constitutional and in line with the country's laws. Akech, a lawyer and advocate, graduated from the University of Nairobi Law School.
Akech asserts that the president's action is grounded in Constitution Amendment No. 13 and Section 16 of the National Elections Act, 2012 (as amended). These laws, he explains, provide the framework for executive authority during transitional periods. The Presumption of Constitutionality and Statutory Validity imply that any Act of Parliament duly passed and assented to enjoys a strong legal presumption of constitutionality and validity. Until challenged and declared unconstitutional by a competent court, these enactments remain binding and valid laws.
The Doctrine of Harmonious Construction requires that the Constitution and enabling statutory frameworks be read as an integrated, organic whole. General provisions, specific transitional clauses, and statutory electoral laws operate within and alongside the broader legal architecture. Akech emphasizes that the principle of Lex Posterior Derogat Legi Priori applies, where newly enacted constitutional amendments and statutory provisions modify, override, and supersede prior inconsistent texts.
Critics of the presidential order cite general provisions under Article 101 to argue that presidential authority to relieve executive officeholders remains bounded by pre-amendment limitations. However, Akech counters that Constitutional Amendment No. 13 and Section 16 of the National Elections Act, 2012 (as amended), represent the latest valid expression of sovereign authority, governing executive action during this transition.
The alleged conflict between the presidential order and the Constitution has been addressed by Akech, who explains that Article 101 supplies the general baseline of presidential executive authority. The specific mechanisms introduced under Amendment No. 13 provide the precise operational powers required for executive reorganization prior to polling. Section 16(2)(a) and Section 16(4)(b) of the National Elections Act, 2012 (as amended), read together with Articles 104C(5) and 104D(9), establish clear legal consequences for the dissolution of the government.
Akech further explains that the president's authority to remove the First Vice President and Vice Presidents is explicitly empowered under Section 16(4)(b) of the National Elections Act, 2012 (as amended). This power is vested in the president to facilitate, clear the runway for, and pave the way for the conduct of general elections. The express vesting of executive authority in the president shields the action from claims of being ultra vires.
In conclusion, Akech argues that the president acted intra vires in issuing Order No. 32-9/2026. The order explicitly cites and invokes Articles 104C(5) and 104D(9), operating in direct alignment with Section 16(2)(a) and Section 16(4)(b) of the National Elections Act, 2012 (as amended). Those asserting that the president acted beyond his mandate fail to discharge the evidential burden of proof, as the order has a legitimate constitutional purpose.
Key points
- The President of South Sudan issued Order No. 32-9/2026 to dissolve the government, citing Constitution Amendment No. 13 and the National Elections Act, 2012.
- Constitutional experts argue that the president's action is grounded in the country's laws and is a necessary step towards general elections.
- The president's authority to relieve executive officeholders is derived from specific provisions in the Constitution and statutory frameworks.
