A recent opinion piece by lawyer Wani Michael, founder of the Foundation for Constitutional Governance and Election in South Sudan, has raised concerns about the constitutional validity of the dissolution of South Sudan's Revitalized Transitional Government of National Unity (RTGoNU). According to Michael, the National Election Amendment Act, 2026, which provides for the dissolution of the government, cannot override or fundamentally alter constitutional provisions unless the Constitution expressly permits such an amendment and the prescribed constitutional procedure has been followed.
The National Election Amendment Act, 2026, provides for the dissolution of the National Legislature, State Legislative Assemblies, and State Governments within three months of the announced election date. However, Michael argues that this Act cannot, by itself, establish a new form of government known as a "Caretaker Government" without a corresponding constitutional basis. He emphasizes that electoral legislation is meant to facilitate, regulate, and administer the electoral process, not to establish a new constitutional government or confer constitutional legitimacy upon an alternative governmental structure.
The Transitional Constitution of the Republic of South Sudan, 2011, as amended, does not expressly provide for the dissolution of the RTGoNU in the manner undertaken, nor does it establish a Caretaker Government to replace the existing Transitional Government during the election period. Michael notes that where there is an inconsistency between an ordinary statute and the Constitution, the Constitution, as the supreme law, prevails. Consequently, the National Election Amendment Act, 2026, cannot validly override or supersede the Transitional Constitution of the Republic of South Sudan, as amended.
The process of replacing key government officials, including the First Vice President and Vice Presidents, is outlined in Article 104 of the Transitional Constitution of the Republic of South Sudan, as amended. According to this article, the replacement shall be nominated by the top leadership body of the respective party as constituted at the signing of the Revitalized Agreement, within 48 hours. The successor shall serve in office until the end of the Transitional Period.
The Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan provides that 60 days prior to the end of the Transitional Period, the National Elections Commission (NEC) shall organize elections in accordance with the provisions of the Permanent Constitution adopted pursuant to the Agreement. Michael argues that any fundamental alteration to the constitutional structure, composition, tenure, or authority of the Government must be undertaken through the constitutionally prescribed process for amending the Constitution.
The mandate and functions of the purported Caretaker Government were announced on national television, through the South Sudan Broadcasting Corporation (SSBC), pursuant to a Presidential Decree. However, Michael notes that a Presidential Decree cannot, by itself, create a constitutional institution or confer upon such an institution powers that are not otherwise authorized by the Constitution.
In conclusion, Michael argues that the dissolution of the RTGoNU, including the dissolution or alteration of its constitutional organs and the establishment of a purported Caretaker Government, raises serious questions of constitutional validity. He emphasizes that the Constitution must remain the primary source of governmental legitimacy and authority during the Transitional Period, and that neither ordinary legislation nor a Presidential Decree should be used to create a governmental structure or confer powers that have no clear foundation in the Constitution.
Key points
- The dissolution of South Sudan's transitional government lacks a clear constitutional basis.
- The National Election Amendment Act, 2026, cannot override or fundamentally alter constitutional provisions.
- The Constitution must remain the primary source of governmental legitimacy and authority during the Transitional Period.
