The 2018 Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS) has been systematically violated by the Revitalised Transitional Government of National Unity (RTGONU), primarily through unilateral presidential actions. These actions constitute a material breach of the agreement, and their neutral enforcement has been undermined by conflicting political and security interests among key IGAD members, specifically Uganda and Sudan. As a result, the incumbent party manipulated the guarantee mechanism into a political tool, damaging the opposition’s credibility.
The R-ARCSS established a temporary constitutional order based on power-sharing and the agreement’s supremacy over the Transitional Constitution. However, the president’s use of decrees to unilaterally appoint and remove officials undermines this framework and has disrupted essential security and justice arrangements, including the Hybrid Court for South Sudan (HCSS). These violations have already threatened the agreement’s purpose of fostering negotiated governance and eroded trust, destabilising transitional institutions and pushing the country to violent conflict.
Therefore, this paper’s premise is that the agreement’s guarantors, the Intergovernmental Authority on Development (IGAD) and the African Union (AU), have grounds to declare a material breach and should formally suspend the R-ARCSS. Given ongoing violations, complete termination of the agreement is necessary to avoid complicity in a process perpetuating suffering in South Sudan.
The supremacy of the R-ARCSS
The negotiators of the R-ARCSS, acutely aware of the failure of previous agreements, sought to create a legally insulated framework that any single party could not easily subvert through domestic legal manoeuvring. The primary instrument for achieving this was the establishment of the agreement’s legal supremacy. Article 8.2 of the R-ARCSS stipulates that the agreement “shall be fully incorporated into the Transitional Constitution of the Republic of South Sudan, 2011 (TCRSS as amended)” and, critically, that “if the provisions of the TCRSS, 2011 (as amended) conflicts with the terms of this Agreement, the terms of this Agreement shall prevail”. This is reinforced by Article 8.3, which gives the R-ARCSS precedence over any conflicting national legislation.
These clauses are the cornerstone of the entire transitional legal framework. They effectively established a new, temporary hierarchy of norms in South Sudan, placing the R-ARCSS at the apex as the lex superior for the duration of the transition. The Transitional Constitution, which grants the President broad executive powers, was explicitly subordinate to the specific, power-constraining provisions of the R-ARCSS. This was a deliberate and necessary measure to prevent the scenario that has since transpired: using constitutional powers to undermine the peace agreement.
The consistent use of presidential decrees to override the provisions of the R-ARCSS represents a fundamental subversion of this carefully constructed legal order. When the President issues a decree that violates the power-sharing or appointment procedures of the R-ARCSS, it creates a profound legal contradiction. An executive power derived from a subordinate law (the TCRSS) is being used to nullify the core tenets of the supreme law (the R-ARCSS). This is not merely a breach of a specific article but a repudiation of the foundational legal logic upon which the peace process was built. It effectively inverts the constitutional hierarchy, rendering the supremacy clause meaningless and demonstrating a rejection of the negotiated settlement in favour of a return to the pre-agreement status quo of centralised, unilateral power.
The principle of collegial governance
If the supremacy clause represents the legal foundation of the R-ARCSS, the principle of collegial governance represents its political soul. The agreement recognised that a winner-take-all political culture and a catastrophic breakdown of trust among the elite drove the civil war. The primary remedy prescribed was a system of mandatory collaboration and power-sharing within the executive.
Article 1.9.1 of the R-ARCSS states unequivocally that the Revitalised Transitional Government of National Unity (RTGONU) “is founded on the premise that there shall be collegial collaboration in decision-making and continuous consultations within the Presidency”. This principle is operationalised in subsequent clauses. Article 1.9.2 requires that key presidential powers, such as the “Appointment of Constitutional and Judicial office holders, including state governors,” be exercised only “in consultation with the First Vice President (Dr Riak Machar), and the four Vice Presidents to reach a mutual understanding and agreement”. The decision-making process within the Presidency is explicitly designed to be non-hierarchical, requiring that the members “shall seek to reach agreement” and that decisions be made in a “spirit of collegial collaboration”.
This framework of collegiality is not a matter of procedural etiquette; it is the substantive political bargain at the heart of the R-ARCSS. It is the core trust-building mechanism, designed to ensure that no single party could capture the state apparatus and use it against its rivals, as had occurred in 2013 and 2016. By forcing the warring parties into a collaborative executive, the agreement sought to transform the nature of political engagement from violent confrontation to negotiated compromise. Therefore, any unilateral action that bypasses or ignores this mandatory consultative process is not a simple procedural misstep. It is a direct assault on the agreement’s primary conflict-resolution mechanism and a signal of bad faith that erodes the fragile trust the agreement was intended to build. The pattern of unilateralism observed during the implementation period thus constitutes a rejection of the core political settlement that made peace possible.
The limits on presidential power
While the TCRSS grants the President broad powers of appointment and removal, the R-ARCSS places strict, unambiguous limits on this authority to protect the delicate power-sharing balance. Article 1.13, titled “Replacement and Removal Procedures,” is the central provision. Article 1.13.1 stipulates that “Each Party may remove its representatives in the Council of Ministers and nominate replacements by notifying the President with at least fourteen (14) days’ notice”. The language is dispositive: the power to initiate a removal rests exclusively with the party that originally nominated the official. The President’s role is procedural, to be notified and to formalise the appointment of the replacement nominated by that party. The President has no authority under the R-ARCSS to dismiss an official appointed from another party’s quota unilaterally.
This interpretation is not a matter of debate; it has been consistently affirmed by the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC), the body mandated to oversee the agreement’s implementation. In its quarterly reports, RJMEC has stated that “a unilateral dismissal of an appointee of another party to the R-ARCSS is contrary to the letter and spirit of the R-ARCSS, hence a violation”. Despite this clarity, there is a long and well-documented record of the President issuing decrees that unilaterally fire ministers and state governors nominated by other parties, particularly the Sudan People’s Liberation Movement/Army-In Opposition (SPLM/A-IO). The affected parties have consistently condemned these actions as “serious violations” of the agreement. The repeated and unremedied violation of Article 1.13 is arguably the most blatant and easily provable breach of the R-ARCSS. It serves as a clear litmus test for the RTGONU’s commitment to the foundational principle of power-sharing. Each time a minister is unilaterally removed, it chips away at the carefully negotiated responsibility-sharing formula detailed in Articles 1.10.7 (for national ministries) and 1.16.1 (for state and local governments). The failure of the agreement’s guarantors to compel a reversal of these decrees has established a dangerous precedent of impunity. It has signalled to all parties that the power-sharing ratios enshrined in the agreement are not sacrosanct and can be altered by executive fiat, effectively rendering the core political bargain of the R-ARCSS void.
The pattern of non-compliance and material breach
The President has repeatedly used the executive decree tool to bypass the mandatory consultative mechanisms of the Presidency and unilaterally alter the composition of the government at both the national and state levels. TJMEC, international observers, and news media have documented this practice extensively. These unilateral actions have had devastating consequences for the stability of the transitional government. They have directly led to a breakdown of trust within the Presidency, culminating in the house arrest of the First Vice President, Dr. Riek Machar, and the arrest and detention of other senior opposition figures. This has created a climate of fear, causing some opposition members to abandon their government posts, further crippling the functionality of the RTGONU. As the BTI Transformation Index notes, the executive has effectively been granted “the authority to rule by decrees, often bypassing the elected legislatures,” leading to a consolidation of power by the incumbent.
This pattern of unilateralism has transformed the presidential decree from a governance tool into a weapon against the peace agreement itself. It has created a parallel power structure that operates in open defiance of the R-ARCSS’s collegial framework. The result is a government that is “transitional” in name only, as the power-sharing and trust-building elements have collapsed. This paralysis in the executive has a cascading effect, preventing the implementation of all other aspects of the agreement and re-igniting the political crisis that has pushed the country back to war.
The legal case for material breach rests not on a single infraction but on the cumulative effect and systematic nature of these violations. This pattern demonstrates a consistent policy of non-compliance that amounts to a repudiation of the agreement’s core bargain. It has, in the language of VCLT Article 60(2)(c), “radically change[d] the position of every party concerning the further performance of its obligations.” The opposition parties can no longer be reasonably expected to perform their obligations, such as participating in a government from which they can be unilaterally fired at will when the incumbent has destroyed the fundamental basis of the agreement. This provides a robust and defensible legal ground for the other parties and the international guarantors to invoke the breach and consider the deal suspended or terminated.
The entrenchment of impunity
A third pillar of the R-ARCSS, designed to break the cycle of violence, is the transitional justice framework outlined in Chapter V. This chapter mandates a comprehensive, three-pronged approach to address the legacy of atrocities: the Commission for Truth, Reconciliation and Healing (CTRH) to document violations, the Compensation and Reparation Authority (CRA) to provide redress to victims, and the Hybrid Court for South Sudan (HCSS) to ensure criminal accountability for the most serious crimes. While the RTGONU eventually passed legislation to establish the CTRH and CRA after significant delays, the key accountability mechanism, the HCSS, has been deliberately and systematically obstructed. Amnesty International has reported that the government took active steps to “delay and ultimately block [the] establishment of the hybrid court”. This obstruction is a strategic choice by the ruling elite to guarantee their impunity for crimes under international law, in direct contravention of the spirit and letter of the agreement.
This failure is not a passive one. It is an active policy of defiance against a core provision of the agreement that was included specifically to address the horrific violence of the civil war and deter its recurrence. By blocking the HCSS, the parties are violating the rights of countless victims to justice and remedy. Furthermore, this action directly contradicts Article 5.5.1 of the R-ARCSS, which states that individuals indicted or convicted by the HCSS shall be ineligible for participation in the government. By preventing the court’s establishment, perpetrators remain in positions of power, entrenching the culture of impunity that fuels the conflict. This failure to deliver justice fundamentally undermines any prospect of genuine “reconciliation and healing” and ensures that the grievances driving the conflict remain unaddressed.
Therefore, the “object and purpose” of the R-ARCSS is not merely to achieve a ceasefire. It is a comprehensive, state-building project aimed at fundamentally restructuring the nature of the South Sudanese state. Its purpose is to replace a system of violent, zero-sum competition for power with a system of negotiated, power-sharing governance under the rule of law, underpinned by a unified security apparatus and a commitment to justice. A violation that undermines any of these three pillars, governance, security, or justice, is necessarily a violation of a provision “essential to the accomplishment of the object or purpose” of the agreement.
Finally, the international community, led by IGAD, is now caught in a perilous dilemma. The fear of accepting and declaring a complete collapse of the R-ARCSS, and a palpable potential return to the violence of 2016. IGAD knows the R-ARCSS has legally collapsed. The fear to call it off, however, has led to a policy of “peace at any price,” which involves tolerating material breaches, endlessly extending deadlines, and continuing to fund a transitional process that is failing to transition. This approach carries its severe costs. It provides political and financial legitimacy to a government that is not implementing the reforms it committed to. It allows the ruling elite to use the peace process as a shield to consolidate power and avoid accountability. Some critics have argued that this creates a “fragility trap” where the dysfunctional peace process becomes a source of instability, leading to a “transition without change”.
Therefore, the choice facing the guarantors is reformable between a flawed peace and a perfect war. It is a choice between confronting the agreement’s failure now or facing a more catastrophic failure later. Continuing to support a “zombie agreement” materially breached by one of its principal signatories erodes public trust, wastes international resources, and delays a genuine reckoning with the root causes of the conflict. While risky, a legal declaration of material breach would provide the diplomatic shock necessary to break this cycle of complicity and force a genuine re-evaluation of the path to peace in South Sudan.
Dr Ayine Nigo is an author and lecturer at the University of Westminster, London, United Kingdom. He can be reached via nigoayine@gmail.com
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