South Sudan is approaching its scheduled general election of 22 December 2026 under a constitutional arrangement unlike that of most ordinary presidential systems. The country is still governed under a transitional constitutional order shaped fundamentally by the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), signed on 12 September 2018. The National Elections Commission itself confirms 22 December 2026 as the scheduled polling date.
Against that background, the Transitional National Legislative Assembly is now considering an amendment to the National Elections Act, 2012. The bill, tabled on 16 September 2026, proposes that the incumbent President remain in office with all constitutional powers during the election period, while the First Vice President and the other Vice Presidents would be relieved of office three months before polling day. The bill is still before Parliament and has not yet become law.
The proposal presents South Sudan with a deceptively narrow electoral question. In substance, however, it raises a much larger constitutional one: can an ordinary amendment to electoral legislation alter the tenure and institutional position of the First Vice President, remove the entire vice-presidential component of the transitional Presidency immediately before an election, and at the same time leave the President exercising the full range of constitutional executive authority?
The answer cannot be found by looking at Parliament’s legislative power alone. Nor can it be answered simply by pointing to the constitutional provision permitting removal of a Vice President. The question has to be answered by reading the constitutional order as a hierarchy: the Transitional Constitution, as amended; the R-ARCSS as incorporated into that constitutional order; and the ordinary legislation governing elections.
The starting point is Parliament’s legislative authority. Article 55(3)(a) of the Transitional Constitution empowers the National Legislature to “consider and pass amendments to this Constitution,” while Article 55(3)(b) empowers it to enact legislation on matters assigned to it by the Constitution.
There is therefore no serious textual basis for arguing that Parliament lacks authority to amend the National Elections Act. It plainly possesses legislative competence. The legal issue is narrower and more important: legislative competence over elections does not necessarily confer power to amend, by ordinary statute, a constitutional office whose tenure and powers have been specially entrenched through a peace agreement incorporated into the constitutional order.
That distinction becomes decisive when one turns to the constitutional provision dealing specifically with the Vice Presidency.
Article 105(2) of the Transitional Constitution provides that the Vice President may be removed by the President or by a decision of two-thirds of all members of the National Legislative Assembly “on a vote of no confidence.” Article 105(3) provides that, where the office falls vacant for any reason, the President appoints a replacement. Article 107 then identifies the circumstances in which the Vice-Presidential office becomes vacant, including relief from office under Article 105(2), resignation, certified incapacity and death.
These provisions are crucial because they establish something that should not be obscured by the present controversy: South Sudan’s Constitution does provide a lawful mechanism through which a Vice President may leave office while the President remains President. There is nothing in Article 105 suggesting that removal of a Vice President automatically removes the President.
But Article 105(2) does not say that Parliament may simply declare, through an ordinary election law, that the Vice-Presidential office shall expire at a predetermined point on the electoral calendar. Its language concerns removal, and parliamentary removal is expressly connected to a two-thirds vote of no confidence.
That creates an important constitutional distinction between two different legal acts.
One would be the exercise of the constitutional removal power created by Article 105(2): an identifiable Vice President is removed through a constitutionally prescribed mechanism.
The other would be an electoral statute providing in advance that, three months before polling day, the First Vice President and the other Vice Presidents shall automatically cease to hold office, thereby changing the composition of the transitional Executive for the remainder of the electoral period.
Those are not obviously the same thing in constitutional law.
The distinction becomes much more pronounced when the First Vice Presidency is considered not merely under the Constitution’s general vice-presidential provisions, but under the R-ARCSS.
The Agreement’s architecture begins with Article 1.5.1. It provides that, during the Transitional Period, the Executive of the Revitalized Transitional Government of National Unity shall comprise the President, the First Vice President and four Vice Presidents, collectively referred to as the “Presidency,” together with the Council of Ministers and Deputy Ministers.
That provision is not ornamental. It defines the institutional composition of the transitional Executive itself.
The First Vice President is consequently not simply a presidential deputy occupying an office created for administrative convenience. The office is expressly incorporated into the architecture of the transitional government that emerged from the peace settlement.
The Agreement then becomes unmistakably specific.
Article 1.7.1 provides:
“For the duration of the Transition, there shall continue to be the office of the First Vice President of the Republic of South Sudan.”
It further provides that the office shall cease to exist at the conclusion of the Transitional Period, unless otherwise decided in the permanent Constitution. Article 1.7.2 in turn provides that the Chairman of the SPLM/A-IO shall assume the position of First Vice President for the duration of the Transitional Period.
The textual implication is difficult to avoid. The Agreement establishes the continued existence of the First Vice Presidency by reference to the duration of the Transition. It does not establish an expiry date three months before an election.
That does not mean that the office can never become vacant. The Agreement expressly anticipates that possibility. But it regulates the consequences of vacancy in a manner that is highly relevant to the proposed electoral amendment.
Article 1.7.5 provides that if the office of First Vice President becomes vacant during the Transitional Period “for any reason”, the replacement is to be nominated by the top leadership body of the SPLM/A-IO as it existed when the Agreement was signed. The process is to take no more than forty-eight hours, and the successor serves until the end of the Transitional Period.
That provision matters enormously.
The parties to the R-ARCSS did not leave a transitional vacancy in the First Vice Presidency to be dealt with by political improvisation. They designed a legal mechanism for replacing the office-holder and, crucially, prescribed the duration of the successor’s tenure.
A statutory provision deliberately creating a vacancy three months before polling day would therefore encounter an obvious textual question: if the First Vice Presidency is vacant during the Transitional Period, why would Article 1.7.5 not operate?
The Agreement does not say that a vacancy occurring during the Transition should produce a three-month vacancy in the office. Quite the opposite: it provides for replacement, and says the replacement serves until the end of the Transitional Period.
The same structural principle applies to the four other Vice Presidents.
Article 1.8.1 establishes four Vice-Presidential offices “for the duration of the Transition” and says that those offices cease to exist at the conclusion of the Transitional Period. Article 1.8.3 provides that if the office of any of those Vice Presidents becomes vacant during the Transitional Period, the relevant party leadership nominates a replacement; the replacement process should not exceed forty-eight hours, and the successor serves until the end of the Transitional Period.
The agreement’s language is thus remarkably consistent. It creates the Vice-Presidential offices for the duration of the Transition and creates mechanisms for replacing office-holders if vacancies arise before that transition ends.
The deeper constitutional significance becomes visible in Article 1.9 of the R-ARCSS, which regulates the powers, functions, and responsibilities exercised by the President, First Vice President, and four Vice Presidents through consultation and agreement. Article 1.9.1 states that the transitional government is founded on “collegial collaboration in decision-making and continuous consultations within the Presidency.”
This is important because it demonstrates what kind of Presidency the R-ARCSS created. It was not simply the pre-existing presidential system with several additional offices attached to it. The Agreement deliberately constructed a transitional Presidency based on consultation and shared participation.
That shared structure has legal consequences.
Under Article 1.9.3.1, declaration and termination of a state of emergency, although initiated by the President in accordance with the Transitional Constitution, require the agreement of the First Vice President and all four Vice Presidents. Article 1.9.3.2 applies the same requirement to a declaration of war. Article 1.9.3.3 requires their agreement for convening, summoning and/or adjourning the Transitional National Legislature for ordinary sessions, in consultation with the Speaker.
These are not peripheral administrative matters. They concern some of the most consequential acts of the state.
Consequently, a legal arrangement under which all five Vice-Presidential offices disappear three months before polling raises a question that cannot be answered merely by saying that the President retains “all powers provided for under the Constitution.” The relevant legal question becomes: how are those R-ARCSS provisions to operate after the offices whose agreement they expressly require have been removed?
The Agreement itself anticipated that executive decisions might encounter disagreement. Article 1.9.6.1.1 requires decision-making in the Presidency to be conducted in a spirit of collegial collaboration. Article 1.9.6.1.2 requires the President, First Vice President and Vice Presidents to seek agreement on executive-administration matters, failing which decisions may be taken by at least four of them. Article 1.9.6.1.3 requires regular consultation among the President, First Vice President and four Vice Presidents.
It follows that the constitutional significance of the Vice Presidents cannot be reduced to the question of who signs papers in the absence of the President. The offices are components of a negotiated decision-making structure.
The most direct provision concerning amendment of electoral legislation is, however, Article 1.20.3 of the R-ARCSS.
It states, without ambiguity:
“The National Elections Act, 2012 shall be amended to conform to the terms of this Agreement…”
This is perhaps the most important sentence in the entire legal debate.
The Agreement expressly contemplated that the National Elections Act would be amended. It therefore confirms Parliament’s role in adapting electoral legislation. But it simultaneously specifies the standard against which that legislation must be measured: the Elections Act is to conform to the R-ARCSS.
The clause does not say that the Elections Act may supersede the Agreement. It says the opposite.
That hierarchy is reinforced in the Agreement’s final chapter.
Article 8.2 provides that the R-ARCSS shall be fully incorporated into the Transitional Constitution and that, if the Transitional Constitution conflicts with the terms of the Agreement, the terms of the Agreement shall prevail. Article 8.3 then addresses national legislation directly: the R-ARCSS shall take precedence over national legislation, and where national legislation conflicts with the Agreement, the Agreement shall prevail.
For the present issue, Article 8.3 is especially powerful because the proposed measure is precisely an amendment to national legislation.
The legal sequence is therefore straightforward.
Parliament has legislative authority under Article 55(3)(b) of the Transitional Constitution. The Constitution gives Parliament a role in determining the legal framework governing elections. The R-ARCSS itself requires the National Elections Act to be amended under Article 1.20.3.
But the same R-ARCSS says in Article 8.3 that it prevails over conflicting national legislation.
The result is not that Parliament is forbidden from amending the Elections Act. The result is that Parliament must amend it consistently with the higher-order provisions of the R-ARCSS that remain legally operative.
That is the constitutional hinge on which the present dispute turns.
The question therefore becomes whether a statutory provision removing the First Vice President and four Vice Presidents three months before polling can be reconciled with Articles 1.5.1, 1.7.1, 1.7.2, 1.7.5, 1.8.1, 1.8.3 and 1.9.
There is a plausible argument that it can. Article 105(2) of the Transitional Constitution expressly permits removal of a Vice President, and the political and constitutional order has already undergone several amendments as the transitional period has evolved. Parliament could therefore argue that it is using its constitutional legislative authority to regulate the electoral transition and remove offices that, in its view, need not continue unchanged through the polling period.
But that argument faces a substantial textual burden.
It must explain why Article 1.7.1, which says the First Vice Presidency continues for the duration of the Transition, should be read as permitting ordinary election legislation to terminate the office three months before the end of that period.
It must explain why Article 1.7.5, which prescribes a replacement mechanism where the First Vice Presidential office becomes vacant during the Transition, should not apply.
It must explain why Article 1.8.1 and Article 1.8.3, which establish the other four Vice-Presidential offices and their replacement mechanisms for the duration of the Transition, should yield to a statute that terminates those offices before the end of the Transition.
And it must explain how the statutory arrangement satisfies Article 1.20.3, which commands that the Elections Act be amended to conform to the Agreement, rather than contradict it.
There is yet another layer.
The Transitional Constitution itself distinguishes ordinary legislation from constitutional amendment. Article 199(1), as amended, requires an amendment to the Constitution to be approved by two-thirds of all members of each House of the National Legislature sitting separately and only after the draft amendment has been introduced at least one month before deliberation. The constitutional amendment procedure has been repeatedly invoked in South Sudan’s legislative practice when Parliament has altered the constitutional framework.
That distinction is important because the proposed change to the Elections Act is not constitutionally consequential merely because it concerns elections. Its legal effect, if enacted as described, would be to change the practical operation of the transitional Executive and potentially the distribution of powers within the Presidency.
There is no general constitutional rule stating that every statute affecting a constitutional institution is itself unconstitutional. Legislatures routinely regulate constitutional institutions through ordinary legislation. The more precise question is whether the statute crosses the line from regulation into alteration of a constitutional arrangement reserved to constitutional amendment or protected by a superior peace agreement.
South Sudan’s constitutional history makes that question especially important because the R-ARCSS was not left as a free-standing political declaration. It was designed to be incorporated into the Transitional Constitution. Article 8.2 expressly confirms that incorporation, while Article 8.3 expressly protects the Agreement against conflicting national legislation.
The relationship between the Constitution and the Agreement has also been reflected in the constitutional amendment process itself. The 2020 incorporation amendment inserted an R-ARCSS supremacy clause into Article 3(5) of the Transitional Constitution, providing that the Agreement takes precedence over the Constitution and national legislation where conflict arises. Contemporary South Sudanese legal analysis identifies Article 3(5) as the constitutional provision through which that supremacy principle was incorporated.
That is why a present-day legal analysis should be careful not to rely solely on an unamended 2011 copy of the Constitution. The constitutional text has been altered over the transitional period, and the R-ARCSS has itself been incorporated into the constitutional order. The relevant legal instrument is therefore the Transitional Constitution, 2011, as amended, read together with the R-ARCSS and subsequent lawful amendments.
There is also an important procedural point about the bill presently under consideration.
The bill introduced on 16 September 2026 is not yet an Act. It has been referred to the parliamentary committee responsible for scrutiny and further consideration. The parliamentary spokesperson has described its proposed arrangement as one in which the incumbent President remains in office with constitutional powers during the electoral period while the First Vice President and other Vice Presidents leave office three months before polling.
That means the constitutional debate remains open.
If the legislation is eventually enacted, its validity could be tested not only politically but legally. The Transitional Constitution provides judicial mechanisms for constitutional disputes, and Article 104—which is sometimes incorrectly cited in this controversy as the Vice-Presidential removal provision—actually concerns contesting acts of the President. The removal provision is Article 105(2).
That distinction matters because constitutional law is often decided in the details of the text.
One should therefore resist a tempting but simplistic conclusion that Article 105(2) settles the matter in favour of Parliament. It does not.
Article 105(2) establishes that a Vice President can be removed. It does not establish that the legislature may create a new category of automatic statutory termination that bypasses the constitutional language of removal and no confidence. Nor does it answer the separate question of what happens when the office is one whose existence, tenure and replacement are specially provided for in the R-ARCSS.
Conversely, one should also resist the opposite overstatement that Parliament has no authority whatsoever to change electoral legislation concerning the Presidency. Article 55(3)(b) plainly gives the National Legislature legislative competence, and Article 1.20.3 of the R-ARCSS expressly contemplates amendment of the Elections Act.
The constitutional argument is therefore not a contest between “Parliament has power” and “Parliament has no power.” Both propositions are too broad.
The real question is one of hierarchy and competence: what can Parliament do through ordinary legislation, and what can it do only through constitutional or peace-agreement amendment?
On the present text, Parliament can amend electoral legislation. But that legislation is required to conform to the R-ARCSS, and the R-ARCSS takes precedence over conflicting national legislation. The Agreement, meanwhile, expressly keeps the First Vice Presidency in existence for the duration of the Transition, establishes four additional Vice-Presidential offices for the same period, creates specific vacancy-and-replacement mechanisms, and embeds the Vice Presidents in a collegial executive decision-making system.
This produces a serious legal difficulty for any statute that simply says: three months before polling day, all five Vice Presidents shall leave office while the President remains with full executive powers.
The legal problem is not that such a measure is politically unusual. Nor is it that no constitutional system has ever permitted a Vice President to leave office while the President remains in power. South Sudan’s own Article 105 demonstrates otherwise.
The problem is that the particular office of First Vice President is governed by a special transitional legal settlement whose language points toward continuity until the end of the Transition, not automatic pre-election extinction.
The difficulty is even sharper because the proposal would not merely remove one Vice President. It would remove all five, thereby eliminating the institutional actors whose agreement or participation is expressly required under Article 1.9.3 for such matters as emergency powers, war and the convening of the Transitional National Legislature.
A carefully drafted constitutional amendment could address those consequences. It could expressly redefine the composition of the transitional Presidency, specify the duration of the offices, determine what happens to the R-ARCSS vacancy provisions, establish a substitute rule for the powers that require vice-presidential agreement, and provide an unambiguous succession arrangement for the electoral period.
That would be constitutional redesign.
An ordinary electoral statute is different. It operates at a lower level of the legal hierarchy.
This distinction is precisely why Article 8.4 of the R-ARCSS matters. It establishes the procedure for amending the Agreement itself, rather than treating the peace agreement as something that can be altered indirectly through ordinary legislation.
The implication is not that every election-law amendment requires amendment of the peace agreement. Most obviously, many electoral rules can be changed without touching the Agreement’s constitutional architecture.
But where the proposed electoral amendment produces a direct conflict with an express R-ARCSS rule—particularly one concerning the existence and tenure of a constitutional office—the ordinary legislative route becomes legally contestable.
The words of Article 1.20.3 are therefore worth returning to one final time. The National Elections Act must be amended “to conform to the terms of this Agreement.”
That sentence places the burden in the correct direction. It is not the peace agreement that must conform to the Elections Act. It is the Elections Act that must conform to the peace agreement.
And Article 8.3 closes the circle: where national legislation conflicts with the Agreement, the Agreement prevails.
On the legal texts presently available, therefore, the strongest conclusion is a measured one.
South Sudan’s Parliament undoubtedly has constitutional authority to legislate on elections, and the Transitional Constitution expressly provides a mechanism for removal of a Vice President. But those propositions do not, by themselves, establish that Parliament may use an ordinary amendment to the National Elections Act to terminate the First Vice Presidency three months before polling day and simultaneously confer an effectively unilateral transitional executive upon the President.
Such a measure would have to be reconciled with Article 105(2) of the Transitional Constitution, particularly its reference to removal through a parliamentary vote of no confidence; with Articles 105(3) and 107, which regulate vacancy and replacement; with Articles 55(3)(a) and 55(3)(b) concerning legislative and constitutional-amendment competence; and, above all, with R-ARCSS Articles 1.5.1, 1.7.1, 1.7.2, 1.7.5, 1.8.1, 1.8.3, 1.9.1, 1.9.3.1–1.9.3.3, 1.9.6.1.1–1.9.6.1.3, 1.20.3, 8.2, 8.3 and 8.4.
The legal issue, in other words, is not whether South Sudan can change its electoral law. It can.
The question is whether an electoral law can be used to achieve indirectly what the Constitution and the R-ARCSS require to be achieved directly: the alteration of the transitional executive bargain itself.
If the proposed legislation merely regulates the mechanics of an election, the ordinary legislative route is plainly contemplated by the constitutional order. If, however, it changes the legally protected tenure and composition of the Presidency, nullifies the R-ARCSS’s vacancy provisions, and removes the vice-presidential participation required by Article 1.9, then the measure begins to look less like election administration and more like a substantive alteration of the constitutional settlement.
That is the line Parliament must confront.
And it is a line that South Sudan’s legal order itself draws. Parliament may legislate. The Elections Act may be amended. But the Elections Act must conform to the R-ARCSS; the R-ARCSS prevails over conflicting national legislation; and the First Vice Presidency is expressly structured by the Agreement to continue throughout the Transitional Period, subject to the Agreement’s own rules governing vacancy and replacement.
The December election may be the destination. It does not, by itself, suspend the constitutional rules governing the road to get there.
For South Sudan, that distinction is not a matter of drafting style. It is the difference between amending the rules for an election and amending the constitutional settlement under which the election is being conducted.
The writer is a South Sudanese political commentator and advocate for institutional reform, federal governance, peacebuilding, and democratic transition. His areas of interest include South Sudan’s political settlement, constitutional development, federalism, public-sector reform, institutional accountability, peacebuilding, and democratic governance. He can be reached via lokonyenaldo@hotmail.com.
The views expressed in ‘opinion’ articles published by Radio Tamazuj are solely those of the writer. The veracity of any claims made is the responsibility of the author, not Radio Tamazuj.
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