The Republic of South Sudan is currently navigating a challenging transitional period marked by persistent internal conflict. This civil war has been exacerbated by a breakdown of trust among the military and political elites who once fought together during the liberation war from 1983 to 2005, which ultimately led to the country’s independence in July 2011.
Efforts to resolve the differences through agreements have struggled to gain traction. Compromises were established in 2015 with the Agreement on the Resolution of the Conflict in the Republic of South Sudan, followed by the Revitalized Agreement for the Resolution of Conflict in South Sudan in 2018. However, these agreements have not been sufficiently implemented, despite containing essential reforms that could significantly improve governance and enhance the rule of law as the nation moves toward democratization.
A significant failure of recent peace agreements is highlighted by the clashes in Western Equatoria, Western Bahr el-Ghazal and Upper Nile states in February and March 2025. Among these conflicts, the Nasir incident stands out, resulting in the deaths of over 250 soldiers and numerous civilians between March 1 – 7.
This article does not explore the underlying causes of the conflicts or the specifics of the various peace agreements. Instead, it aims to analyze the recent and the ongoing activities related to the implementation and application of law. In particular, the article focuses on the ruling of the ‘Special Court for the Nasir Incident,’ which is prosecuting the suspended First Vice-President (FVP), Dr Riek Machar, and seven co-accused for offenses allegedly committed in Wech Yar Diu, Nasir County, during a clash between the South Sudan People’s Defense Forces (SSPDF) and armed civilians known as the White Army.
The case facts leading to the preliminary ruling indicate that FVP and the co-accused conspired with the White Army to plan, abet, and commit murder, treason, crimes against humanity, and terrorism, in violation of the South Sudan Penal Code Act of 2008. Additionally, they face charges of money laundering under the provisions of the Anti-Money Laundering and Counter-Terrorist Financing Act, as amended in 2024.
At the commencement of the trial on September 22, 2025, FVP, who had been removed by a presidential decree shortly before the trial began, submitted that he could not be tried by the Special Court due to his constitutional immunity, which he asserted had not been lifted.
The Special Court, comprised three judges, determined that the Vice-President has no constitutional immunity. As a result, the FVP was required to stand trial alongside his seven co-accused and was currently undergoing the legal proceedings.
The issue of the vice-president’s immunity appears to have been settled, at least according to the Special Court. However, discussions continue to intensify, suggesting that the decision could be correct or potentially a miscarriage of justice. This debate prompts the need for a brief analysis of the Special Court’s ruling. This article aims to explore the concept of immunity, particularly concerning the president and vice-president, while examining various provisions of South Sudan’s Transitional Constitution (TCSS), 2011 (as amended). It endeavors to relate and reflect on these provisions against key principles of constitutional interpretation. Additionally, literature from other jurisdictions is reviewed to support the author’s arguments.
Prior to the commencement of the hearing in the criminal case No. 1533/2025, commonly known as the Nasir Incident Case, it is noteworthy that there has been little discussion among many South Sudanese regarding the question of the Vice-President’s immunity.
This may stem from the belief that the Vice-President enjoys immunity against criminal prosecution. Consequently, should he be suspected of any criminal offense, such immunity would need to be formally lifted by the Transitional National Legislative Assembly (TNLA). Alternatively, there could be an assumption that the case might be terminated prematurely, especially considering its strong nexus with the political undercurrents. The matter is now in the public domain, allowing a range of opinions to emerge.
In a general sense, immunity refers to an exemption that an individual, or a corporate entity enjoys from the usual application of the law. For public officials, such as presidents or vice presidents, immunity denotes any exemption from legal duties, liabilities, or court processes.
Public officials’ immunity can be classified as either absolute, which signifies complete or qualified, where the exemption applies only under certain conditions. Furthermore, constitutional immunity represents an exemption and is closely tied to executive immunity, implying a form of political immunity granted to officials largely shielding them from civil or, at times, criminal liability due to actions or omissions carried out while performing their official duties.
Immunity is often thought to have originated alongside the establishment of tyrannical governments, or generally leaders who seek to operate beyond the law. Various sources suggest that in ancient societies, all individuals faced no exemptions from liability, whether civil or criminal.
While the contexts of those ancient societies differ significantly from the dynamics of the 21st century, there may have been valid reasons for denying immunity. This approach could have been intended to uphold equality before the law, and to give no chance to impunity. This notion is fundamental and universal, and it finds resonance in the Universal Declaration of Human Rights.
The circumstances that led to the establishment of immunity notwithstanding, the practice seems to have been adopted for reasons, which can differ across contexts. Several arguments have been put forth in support of granting immunity, especially to heads of state and individuals entrusted with the sovereignty of the people. These individuals are responsible for executing functions essential for the governance and development of their nations. Additionally, heads of state and sovereign representatives often serve as unifying figures. For instance, in the 1800s, US courts established significant precedents concluding that “even if a cabinet official had acted with malice, the proper functioning of the government demanded that such officials be absolutely immune”.
Due to its significance, immunity has become a critical matter for leaders of many nations. In Africa, the prosecution of a sitting head of state is nearly unthinkable. Most legal frameworks, explicitly outline the immunity granted to heads of state and officials. Even in countries like South Africa, Ethiopia, and the Democratic Republic of Congo, where immunity is not explicitly stated in the constitution, it is generally implied for high-ranking officials. Furthermore, in jurisdictions like the US, the question of presidential immunity has been well established, especially through legal precedents. For instance, in Nixon v. Fitzgerald, 457 US 731 (1982), the Supreme Court affirmed that the president enjoys absolute immunity, during or after their term in office, although they may still face lawsuits for personal conduct unrelated to their official duties.
Despite its guarantees, the principle of heads of state immunity has somewhat faced scrutiny in courts, particularly outside Africa, where international common law principles have been invoked as justification. A notable example was the case of R v. Bow Street Metropolitan Stipendiary Magistrate and others, Ex parte Pinochet Ugarte (No. 3) [2000] 1 A.C. 147, commonly referred to as Pinochet (1). The House of Lords, the highest court in the United Kingdom, determined that former Chilean President Augusto Pinochet did not enjoy state immunity due to the nature of his actions. The court asserted that international law recognizes that acts leading to egregious crimes such as torture, genocide, hostage-taking, and crimes against humanity are intolerable. Consequently, it is challenging to argue that such actions are part of a head of state’s legitimate functions, as acknowledging otherwise would undermine the validity of international law.
Such a ruling undoubtedly limits the exalted immunity of heads of state from criminal prosecution. However, its applicability in local courts, particularly regarding sitting heads of state, remains to be determined. In the meantime, each country upholds and preserves the immunity of heads of state, either explicitly or implicitly.
While the immunity of heads of state is often regarded as an entitlement, the question of extending such immunity to their deputies has sparked controversy and animated debates. In ideal scenarios—and as suggested by the constitutions of many countries—these deputies are elected alongside presidents or prime ministers. This article specifically argues that a vice president, particularly in the context of South Sudan, is endowed with immunity. This immunity is implied by the Transitional Constitution of South Sudan (TCSS) and is also grounded in their responsibilities delineated by the 2018 peace agreement.
While the South Sudan’s Transitional Constitution of 2011, as amended, establishes the president’s immunity, a bare textual reading of the same document does not indicate that the Vice-President or the First Vice President is granted absolute constitutional immunity. This interpretation may lead to the conclusion that the vice-president does not possess constitutional immunity. When a judicial body renders such conclusions, they carry significant weight and consequences.
The ongoing trial of Dr Machar, along with seven co-accused, is generating intense debate. A particularly notable aspect of this case is the Special Court’s ruling on the preliminary objection raised by the defense concerning the constitutional immunity of the Vice President. The court determined that FVP, like the Vice President in general, does not possess constitutional immunity. This ruling has raised questions, including from the author of this article, who believes the conclusion is misguided. The rationale behind this viewpoint will be explored in the following paragraphs.
A vice-president is a key figure typically chosen alongside the president. Once elected, he stands on nearly equal footing with the president, endowed with the sovereignty of the citizens and/or electorates as stipulated by Article 2 of the TCSS. This provision, which underpins the existence of a state, asserts that “sovereignty is vested in the people and shall be exercised by the State through its democratic institutions.
In this context, the vice-president’s essential role becomes evident, particularly in supporting the president during international engagements and, more significantly, in stepping into the president’s role should the latter vacate the office for any reason. This scenario is addressed by Article 102 (2) of the TCSS, as amended.
Given the critical nature of the vice-president’s role, there exists a strong implied constitutional immunity. The essential nature of the vice-president’s position within the executive branch solidifies this notion. Any disruption, such as through a criminal conviction due to a lack of constitutional protection, could significantly hinder government operations and undermine national unity as well as the delivery of services. When the vice-president is elected alongside the president, they play a vital part in preserving the stability of the government, particularly in situations where the president is indisposed.
It is worth noting that questions may arise whether any vice-presidents in South Sudan are truly elected. These concerns were addressed during the 2010 elections, which confirmed the current president’s authority and his running mate. The Transitional Constitution presumes the president is elected; in practice during this process, he or she is also elected alongside their deputy. As a matter of formal procedure, the president then appoints the vice-president as stipulated by Article 104 of the TCSS 2011, as amended. Whether this election of the president and their deputies accurately represents the current situation, is a discussion for another time, and was in fact not cited as the reason for denial of immunity to a vice-president by the Special Court.
Moreover, and perhaps equally important as the implied immunity, the role of the First Vice President in South Sudan is particularly distinctive due to its foundation in a compromised peace agreement. This position is unique because the peace deal clearly delineates responsibilities for its holder. The exclusive role assigned to the FVP underscores the significance of this position and consequently suggests the implied immunity.
For instance, Article 1.7.3 of the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) stipulates that the FVP is tasked with chairing and overseeing the governance cluster, deputizing the President as chair of both the National Security Council and the National Defense Council, and commanding the Sudan People’s Liberation Movement/Army – in Opposition. If the FVP were to be subjected to illegal prosecution, it would undermine his role, including overseeing the governance cluster within the cabinet of the Revitalized Transitional Government of National Unity (RTGONU), as highlighted in Articles 1.5.4.1 and 1.7.3.3 of the agreement. Such actions would severely hinder the operation of the government, potentially bringing the country to a standstill.
The role of the First Vice President in the revitalized peace agreement bears resemblance to that of the interim constitutions of Sudan and Southern Sudan prior to independence. In both instances, the president and the FVP were granted explicit constitutional immunity from prosecution, as outlined in Article 60 (2) and Article 105 (1) of the Sudan Interim Constitution and the Southern Sudan Interim Constitution of 2005, respectively.
In addition, such immunity, particularly concerning criminal prosecution, can also be inferred from Article 126 (g) of the Transitional Constitution of South Sudan, 2011, as amended. This article is further supported and reinforced by Section 10(d) of South Sudan’s Code of Criminal Procedure Act, 2008. According to these foundational legal frameworks, as reiterated by the Code of Criminal Procedure Act, the authority to try the President, Vice-President, and the Speaker of the National Legislative Assembly is exclusively vested in the Supreme Court.
This prima facie observation serves as an explicit acknowledgment of the significance of the roles played by the three offices in question. It affirms that the holders of these offices cannot be tried arbitrarily, except by the highest court, and only when their immunity is formally lifted. The process for lifting this immunity is outlined in the National Legislative Assembly’s Code of Conduct of Business. While the code is not a primary legislation, it facilitates the execution of rights granted by the constitution. It is also essential to note that the provisions in this code of conduct are not made frivolously, but rather based on an interpretation that the constitution, even if implicitly, grants immunity to officials such as the vice-president.
The constitution stipulates that the trial of the president, the vice-president, and the speaker of the national legislative assembly is the sole responsibility of the Supreme Court. This indicates that these officials can only be removed through impeachment or tried by the country’s highest court when such immunity is formally lifted. Consequently, it suggests that if the vice-president or the first vice president were, lacking immunity against criminal prosecution, their trials could not be limited to just the apex court, nor could they be held alongside that of the president.
A casual prosecution of the vice-president without lifting the immunity not only violates constitutional and statutory provisions but also degrades and undermines the integrity of the vice-presidential office. As noted by Mark E. Coon in Vice-Presidential Immunity in the Age of Impeachment: A Fresh Look at the Agnew Precedent, this office embodies the people’s sovereignty alongside that of the president. Such actions can delegitimize the vice-president in the eyes of the public, portraying them, along with the president, as criminal figures rather than public servants.
To prevent this scenario and protect the entire executive branch, the Constitution affords these officials immunity. This may be explicitly stated or implied. For instance, South Africa, Ethiopia, and the Democratic Republic of the Congo implicitly recognize such immunity, as do nations beyond Africa, such as the Philippines. Although the Philippines Constitution does not specifically address the immunity of the president, the vice-president, and the Supreme Court justices, it ruled that these officers are endowed with immunity from prosecution while in office.
Undermining such a robust legal position and practices, may not be due to a lack of immunity, but rather a reflection of misapplication of the law, and could easily be characterized as a politically influenced decision intended to exclude the First Vice-President from the politics in South Sudan. This approach is legally misguided and erroneous. Furthermore, it sets a perilous precedent that contradicts the effective methods of constitutional interpretation, ultimately impacting future vice- presidents in South Sudan. This precedent is likely to encourage the criminalization of politics, a trend that could exacerbate instability and hinder the democratization in the world’s youngest country.
The Special Court, rather than solely depending on the absence of explicit reference to a vice- president’s immunity in the constitution, neglected to cite any legal precedents to support its conclusion. This oversight could be interpreted as a lack of interest in thoroughly examining the issue and arriving at a well-reasoned conclusion. Alternatively, it is possible that the Special Court inappropriately relied on politically influenced statements from government, reminiscent of the situation in the United States v. Spiro T. Agnew*, Crim No. 73-0535, often cited as a misleading precedent, implying that a vice-president lacks constitutional immunity. Spiro T. Agnew, who served as vice-president from 1969 to 1972, was suspected of tax law violations and accepting bribes while in office. His case was presented to a grand jury by the Justice Department. Agnew asserted that he possessed absolute immunity and could not be prosecuted, a position contested by the Justice Department. Before a Federal Court could hear the case, he resigned and entered into a plea bargain, leaving the court unable to address the question of his immunity.
Since that time, no new and conclusive precedent has emerged. The misconception, however, is that the argument was merely a position taken by the Department of Justice. A court decision could have only been rendered had the case reached its logical conclusion.
The Special Court’s decision to overrule the immunity of a vice-president was founded on a superficial interpretation, as it was based on a bare textual reading of the constitution. This approach can only be characterized as absurd, resulting in a significant miscarriage of justice.
Given that the immunity is inherently constitutional, the Special Court could have rendered a more just outcome by adhering to fundamental principles of interpretation, particularly the methods of harmonious construction and the intent of the constitution.
As laid down in the constitutional law and equally in the legal jurisprudence that includes several decided cases, the fundamental principles of constitutional construction and interpretation include the concepts of harmonious interpretation and the intention of the constitution. These approaches, respectively, assert that to prevent conflicts, they must be interpreted harmoniously.
Furthermore, when courts address constitutional matters, they are required to ascertain the intent, by looking beyond its literal text.
Collectively, the principles of harmonious interpretation and the intention of the constitution align with the functional method of constitutional interpretation. This method, derived from the Latin maxim Nemo aliquam partem recte intelligere potest antequam totum perlegit—meaning “no one can properly understand a part until he has read the whole”—suggests that courts should base their decisions on the overall structure of the law and its intended functionality.
Indeed, in common law jurisdictions such as the US, especially during the formative years of immunity jurisprudence, courts employed functional analysis or constitutional construction to derive the existence of immunity, whether absolute or qualified.
In weighing this against the South Sudan Special Court’s controversial decision, it is clear that the court failed to apply the essential parameters of interpretation. The court’s action in denying the immunity of a vice-president creates a conflict between Articles 2, 102 (2), and 126 (g) of the Transitional Constitution of South Sudan, 2011, as amended, on one side, and Article 103 of the same constitution, on the other. This outcome is contrary to the intentions of the TCSS, and the Special Court should have acknowledged this.
South Sudan’s judicial system is still evolving, yet it is already capturing significant attention. A particularly intriguing and thought-provoking case is the Special Court for the Nasir incident, which recently overruled the First Vice-President’s preliminary objection based on claims of constitutional immunity. The court determined that he could be subjected to trial without the lifting of this immunity by the Transitional National Legislative Assembly (TNLA). The court’s primary rationale was that the Constitution does not explicitly grant such immunity. Nevertheless, it is evident that there exists an implied immunity for a vice president.
While it is true that the TCSS does not contain an explicit provision granting immunity to the Vice- President, a comprehensive analysis of the constitution—particularly when interpreted as a cohesive whole, through the principles of harmonious interpretation and the intended construction of the constitution—suggests the existence of an implied immunity for the Vice-President. The Constitution envisions the Vice-President being elected alongside the President. The Vice- President embodies the sovereignty of the people, serves as a critical support to the President, and steps into the role of the President if the latter becomes unable to fulfill their duties.
The constitution and laws acknowledge the implied immunity of a Vice-President, which is why the jurisdiction to try a Vice-President is exclusively granted to the Supreme Court, just as it is for the President and the speaker of the national assembly. This recognition of the vice-president’s implied immunity is also reflected in procedural rules, such as those outlined in the Transitional Legislative Assembly’s Code of Conduct of Business.
Given the strong legal foundation, it is only logical, prudent, and justifiable to assert that the Special Court erred by relying solely on a textual or literal interpretation of the TCSS. In doing so, it resulted in a miscarriage of justice. If this is not rectified by the Supreme Court, the injustice will not only set a troubling precedent, but also lead to an absurdity in constitutional interpretation.
The writer’s name has been withheld for security reasons.
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.