South Sudan stands at a defining constitutional crossroads. The anticipated 2026 general elections are expected to usher in the country’s first democratically elected government in more than a decade. However, these elections will take place under the Transitional Constitution of the Republic of South Sudan, 2011 (as amended) rather than a newly adopted permanent constitution. This constitutional reality raises important legal and political questions about the future of democratic governance, particularly concerning the continued application of Articles 100(r) and (s), which grant the President the authority to remove elected state governors, dissolve state legislative assemblies, and appoint caretaker governors pending fresh elections.
While these provisions were conceived during a period of political instability and civil conflict, their continued operation after the 2026 elections may fundamentally alter the relationship between the Presidency, elected state governments, and the electorate. In the absence of a permanent constitution that redefines executive powers and strengthens constitutional safeguards, these provisions could pose one of the greatest institutional threats to elected officials and the democratic aspirations of South Sudan.
A Constitution Designed for Transition, Not Permanent Democracy
The Transitional Constitution was promulgated in 2011 following South Sudan’s independence. It was intended to provide a legal framework for governing a newly independent nation while state institutions were still developing. Subsequent amendments expanded executive authority in response to political crises, armed conflict, and the need to preserve national unity.
More than a decade later, however, the political context has changed significantly. The purpose of the 2026 general elections is to transition from a government based on political agreements to one founded on the democratic choice of the people.
Yet if no permanent constitution is adopted before these elections, the country will continue to be governed by a constitutional framework that was designed for an exceptional transitional period rather than a mature constitutional democracy. This creates a tension between democratic legitimacy and transitional executive authority.
Articles 100(r) and (s): Extraordinary Powers in an Ordinary Democratic Setting
Article 100(r) authorizes the President to remove an elected state governor and dissolve a state legislative assembly under specified circumstances relating to constitutional crises or threats to national security and territorial integrity. Article 100(s) empowers the President to appoint a caretaker governor until fresh elections are conducted.
During periods of armed conflict, these powers could be justified as emergency mechanisms to maintain constitutional order. However, after the 2026 elections, their continued application in a democratically elected government raises concerns because elected governors will possess direct electoral mandates from the people rather than appointments resulting from political agreements.
The continued existence of these extraordinary executive powers risks transforming exceptional constitutional measures into ordinary instruments of governance.
The Absence of a Permanent Constitution Creates Constitutional Uncertainty
Permanent constitutions generally establish enduring democratic institutions, define the limits of executive authority, strengthen judicial oversight, and provide clear procedures for removing elected officials. If South Sudan enters the post-2026 period without such a constitution, elected officials will remain subject to transitional constitutional provisions that were never intended to regulate a fully democratic political order, this creates constitutional uncertainty in several respects. First, governors elected directly by the people may not enjoy secure constitutional tenure because presidential removal remains constitutionally available. Second, state legislatures may face dissolution before completing their constitutional terms, potentially interrupting democratic representation. Third, caretaker governors appointed by the President may temporarily replace officials chosen by voters, thereby shifting political legitimacy from the electorate to executive appointment. Such uncertainty weakens confidence in constitutional governance.
Undermining the Sovereignty of the Electorate
Democracy is founded upon the principle that political authority originates from the people. When citizens elect governors through universal suffrage, they expect those leaders to remain in office unless removed through transparent constitutional procedures such as impeachment, resignation, incapacity, criminal conviction, or defeat in subsequent elections.
Articles 100(r) and (s) introduce an alternative route whereby the President may terminate an electoral mandate before its expiry. Although the Constitution provides legal authority for such action, exercising it after competitive elections could be perceived as overriding the sovereign decision of voters, and the result is a constitutional contradiction.
Citizens may elect their governors, yet their governors’ tenure ultimately depends upon presidential discretion; this may reduce public confidence in elections by creating the perception that electoral outcomes remain subordinate to executive authority.
Weakening State Autonomy
South Sudan’s constitutional system recognizes decentralized governance through states. The purpose of decentralization is to allow local communities to govern themselves within the framework of national unity. However, Articles 100(r) and (s) permit significant federal intervention in state governance. Governors aware that they may be removed before completing their constitutional terms could become politically dependent upon the Presidency rather than accountable primarily to their constituents. Such dependence may discourage independent policymaking and weaken the autonomy of state governments. Instead of functioning as elected representatives of their states, governors may feel compelled to prioritize maintaining political favor with the national executive.
The Risk of Political Selectivity
Another concern is the possibility of selective application. Constitutional provisions granting broad executive discretion may become politically controversial if they are perceived to affect certain governors more than others. Even where removals are legally justified, inconsistent application may generate allegations of political bias or unequal treatment. Following the 2026 elections, political competition is expected to become more robust than during the transitional period.
If opposition parties or independent candidates win governorships, Articles 100(r) and (s) may become focal points of constitutional disputes regarding executive neutrality and political fairness. The legitimacy of both national and state institutions could therefore be affected by how these provisions are interpreted and implemented.
Caretaker Governors and Democratic Legitimacy
Article 100(s) permits the President to appoint caretaker governors after removing elected governors. Although caretaker administrations may be necessary during genuine emergencies, they present democratic challenges. Unlike elected governors, caretaker governors derive their authority from presidential appointment rather than from the electorate.
If caretaker administrations remain in office for prolonged periods before fresh elections are organized, democratic accountability may be weakened, and citizens may find themselves governed by officials they neither elected nor possess any direct constitutional means of holding politically accountable. This situation could become particularly contentious if election timelines are delayed for political, logistical, or financial reasons.
The Need for Stronger Constitutional Safeguards
The problem is not necessarily that emergency powers exist. Many constitutional democracies recognize exceptional executive authority during periods of national crisis. The principal concern is the absence of sufficient institutional safeguards governing their exercise. If South Sudan proceeds to the 2026 elections without a permanent constitution, reforms could still be considered to strengthen constitutional accountability. Such reforms might include:
- requiring an independent judicial determination before removing an elected governor
- requiring approval by the National Legislature before dissolving a state legislative assembly
- clearly defining what constitutes a constitutional crisis or a threat to national security
- imposing strict constitutional time limits on caretaker administrations
- requiring fresh elections within a specified period following any presidential intervention.
These safeguards would preserve the President’s ability to respond to genuine constitutional emergencies while reducing the risk of arbitrary or politically motivated intervention.
Looking Beyond the 2026 Elections
The 2026 elections should represent more than the election of new leaders; they should mark South Sudan’s transition toward constitutional democracy grounded in the rule of law. However, democratic elections alone cannot guarantee democratic governance. Without a permanent constitution that clearly limits executive authority and protects the tenure of elected officials, transitional constitutional provisions may continue to shape political relationships long after the transition was intended to end. Consequently, the legitimacy of future state governments may depend not only on the votes they receive but also on the constitutional protections afforded to the mandates they obtain.
Finally, the absence of a new permanent constitution before the 2026 general elections places South Sudan in a unique constitutional position. The country risks entering a democratic era while still operating under a constitutional framework designed for political transition and crisis management.
Articles 100(r) and (s), though legally embedded within the Transitional Constitution, confer extraordinary executive powers that may be difficult to reconcile with the principles of democratic governance after competitive elections. The authority to remove elected governors, dissolve elected state legislatures, and appoint caretaker governors has the potential to weaken security of tenure, undermine decentralization, diminish electoral sovereignty, and create uncertainty regarding the independence of state governments.
For South Sudan’s democratic transition to be durable and credible, constitutional reform should accompany electoral reform. Whether through the adoption of a permanent constitution or amendments introducing stronger procedural safeguards, the constitutional balance between executive authority and democratic accountability must evolve. Only then can elected officials exercise their mandates with confidence that their legitimacy derives from the people and that their tenure is protected by the Constitution rather than contingent upon executive discretion.
The writer, Omara Joseph Wani, is a human rights lawyer and advocate. He can be reached by email at omarajoseph@protonmail.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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