The legal and political architecture of the Revitalised Transitional Government of National Unity (R-TGoNU) is neither accidental nor discretionary. It is a creature of law, specifically, the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS) of 2018. To understand the present fragility of South Sudan’s transition, one must begin from a foundational premise: the R-ARCSS is not merely a political accord; it is the operative constitutional order, a grundnorm, from which all transitional authority derives its validity.
The R-ARCSS as the foundational legal order
Chapter One of the R-ARCSS establishes the R-TGoNU as the central organ of transitional governance. Article 1.1 creates the government, defines its seat in Juba, and fixes its temporal mandate. Article 1.2 assigns it a clear legal purpose: implementation of the Agreement, consolidation of peace, and preparation for democratic elections. These provisions are not descriptive; they are constitutive. Without them, the R-TGoNU has no legal existence.
The Agreement further defines the composition and inclusivity of this government. Article 1.3 mandates a pluralistic structure incorporating the incumbent government, the SPLM/A-IO, SSOA, Former Detainees, and other political parties. This is the juridical codification of power-sharing, not as a political concession but as a legal obligation.
In this sense, the R-ARCSS functions as a supreme normative framework. The Transitional Constitution of South Sudan, 2011, derives its transitional validity through incorporation and amendment to align with the Agreement. Where inconsistencies arise, the R-ARCSS prevails, not by rhetorical assertion, but because it is the source of the transitional legal order itself.
Institutional design: A government of structured interdependence
Articles 1.5 through 1.13 construct a deliberately interdependent executive. The Presidency, comprising the President, First Vice President, and four Vice Presidents, is not a hierarchy of unilateral authority but a collegial body designed to compel cooperation. Article 1.9 crystallizes this design through the doctrine of collegial collaboration.
Article 1.9.1 establishes that governance must be anchored in continuous consultation within the Presidency. Article 1.9.2 goes further, requiring that presidential powers, especially in implementing reforms and supervising the Cabinet, be exercised in consultation with the First Vice President and Vice Presidents. This is a structural safeguard against unilateralism.
The legislative and judicial arms reinforce this architecture. Articles 1.14–1.18 reconstitute the Transitional National Legislative Assembly and Council of States while mandating judicial reforms to secure independence and impartiality. Articles 1.19 and 1.20 extend the framework to transitional institutions and the electoral roadmap.
This is not merely institutional engineering; it is a system of mutual veto, proportionality, and shared sovereignty, hallmarks of consociational democracy.
The centrality of Dr. Riek Machar and the SPLM/A-IO
Within this legal architecture, the role of Riek Machar and the SPLM/A-IO is not optional; it is foundational. Article 1.7 establishes the office of the First Vice President as an integral component of the executive, not a ceremonial adjunct. Article 1.3 embeds the SPLM/A-IO within the very composition of government.
To exclude or marginalize this party is therefore not a political adjustment; it is a constitutional violation. The Agreement’s logic is clear: peace in South Sudan is contingent upon inclusion of the principal belligerents. Remove one pillar, and the structure collapses.
This is reinforced by the broader power-sharing ratios across the executive, legislature, and subnational governance. The allocation of ministries, parliamentary seats, and state-level authority reflects a negotiated equilibrium. Disrupting that equilibrium through unilateral action undermines both legality and legitimacy.
Good faith and the crisis of implementation
The R-ARCSS imposes not only structural obligations but normative ones. Chief among them is the requirement of good faith. Parties are legally and politically bound to implement the Agreement sincerely, including critical benchmarks such as security sector reform, unification of forces, and institutional restructuring.
Yet the record of implementation reveals a persistent deficit of political will. Repeated extensions of the transitional period, now stretching to December 2026, are symptomatic of what can only be described as systematic non-compliance. “Feet dragging,” unilateral appointments, and selective implementation have eroded trust and undermined the spirit of collegial governance envisioned under Article 1.9.
This erosion of good faith is not a minor defect; it is a structural threat. The R-TGoNU rests on trust among historically antagonistic actors. Without that trust, the legal framework becomes hollow.
Amendment and the rule of consensus
The rigidity of Article 8.4 underscores the Agreement’s commitment to inclusivity. Amendments require initiation by the Presidency, approval by two-thirds of the Council of Ministers, consent by two-thirds of the Reconstituted Joint Monitoring and Evaluation Commission, and ratification by the legislature.
This multi-layered process is intentional. It prevents unilateral alteration of the constitutional order and ensures that all parties, including the SPLM/A-IO, retain a decisive voice in shaping the transition. Any attempt to bypass this process is, by definition, unlawful.
Collapse, illegitimacy, and international consequences
If the R-ARCSS is the grundnorm, then its collapse triggers a cascading legal crisis. The R-TGoNU would lose its normative foundation, transforming from a lawful government into a de facto authority sustained by coercion rather than consent.
Domestically, this would manifest as a legitimacy crisis: declining public compliance, increased reliance on force, and heightened risk of violent conflict. Institutionally, bodies created under the Agreement, legislature, commissions, and reform mechanisms would lose their legal anchor.
Internationally, the consequences are equally severe. While international law often distinguishes between legality and legitimacy, sustained violations, particularly of peace agreements endorsed by regional and global actors, invite collective action.
Bodies such as the African Union and the United Nations Security Council possess both the political authority and, under Chapter VII of the UN Charter, the legal capacity to intervene in situations threatening international peace and security. In extreme scenarios, this could include the recognition or support of alternative governance arrangements aimed at restoring order and facilitating a credible transition to elections.
The R-ARCSS is the sole path to democratic transition
Despite its imperfections, the R-ARCSS remains the only coherent roadmap for South Sudan’s transition. Article 1.20 sets out the trajectory toward a permanent constitution and democratic elections. Chapters on security, economic reform, and transitional justice provide the substantive pillars for long-term stability.
The Agreement also embeds mechanisms for leadership change within parties and across the transitional framework, ensuring that political evolution occurs within a legal structure rather than through conflict.
Conclusion: Law, not power, must anchor the transition
The central lesson is inescapable: the legitimacy of South Sudan’s transitional government is inseparable from fidelity to the R-ARCSS. The Agreement is not a political suggestion; it is the constitutional order.
Excluding key parties, disregarding collegial decision-making, or amending provisions unilaterally does not merely weaken the system; it nullifies it. And once nullified, the consequences extend beyond domestic instability to regional and international intervention.
The choice facing South Sudan’s leaders is therefore stark. Either recommit to the legal discipline, inclusivity, and good faith demanded by the R-ARCSS, or preside over its collapse, and with it, the collapse of the very legitimacy that sustains their authority.
The writer, Juol Nhomngek Daniel, is a lawyer, politician, lecturer, and member of SPLM-IO. He can be reached via email: nhomngekjuol@gmail.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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