In the caretaker trap? The legal end of South Sudan’s transition

The dissolution of South Sudan’s Revitalised Transitional Government of National Unity (R-TGoNU) on 22 September 2026 has not only put a probably definite end to the country’s long-standing transitional framework, it has also led to fierce responses in analysis and commentary. We heard about allegations of a “parliamentary coup” or an “unconstitutional dissolution”, which very much aligns with other claims made before about a “new civil war”, supposedly under way since 2024. Such claims are surely spectacular, but, first and foremost, they are spectacularly wrong.

Their problematic content would become painfully visible if South Sudan were indeed to face a coup or a new civil war, a situation we all hope will not occur.

Nevertheless, the current events are nothing short of historic. They mark the end of a transitional period spanning six years, a period – and here the critique is well founded – where nearly nothing of what should have been achieved has been achieved.

South Sudan thus entered the 2026 election period with an unfinished constitutional order. The permanent constitution envisaged in the peace agreement had not been completed, nor had a census taken place. The transitional institutions created under the 2018 R-ARCSS had already been extended repeatedly. Their continued existence increasingly depended on the failure to complete the very transition they were meant to administer.

The legal response of the government – at that point already without the SPLM-IO mainstream faction around Riek Machar and exiled Nathaniel Oyet – in 2026 was to change the sequencing. Constitutional and peace-agreement amendments delinked elections from completion of the permanent constitution and census.

In a second step, the National Elections Act (NEA) was amended again to operationalise that decision. President Salva Kiir assented to the amendments on 21 September, after deliberations in parliament that barely lasted more than a day. Consequently, on 22 September, three months before the announced election date, the transitional legislature and state institutions were dissolved and the vice-presidential offices were terminated. The amended Act expressly leaves the incumbent President in office until an elected successor assumes office and refers the removal of the vice presidents back to Article 105(2) of the Transitional Constitution.

While these moves follow a legal pathway, the now existing legal framework is nonetheless untidy. South Sudan has no completed permanent constitution providing a clean bridge from transitional government to electoral government. The NEA therefore carries constitutional weight that ordinary electoral legislation should ideally never have to carry.

But any alternative would bear its own legal and legitimacy problem. R-TGoNU derives its legitimacy precisely from being transitional. It was always derivative and temporary: it rested on an agreement intended to produce a different political order. Its repeated extensions have already stretched this claim. Keeping the entire power-sharing architecture in place until every unfinished transitional task has been completed would create a perverse constitutional incentive: failure to complete the transition becomes the legal basis for extending it again.

The real politics of South Sudan’s transition have already shown that the main structural feature of the transitional framework has been to extend itself. A change was not to be expected. At some point, the transition has to end.

South Sudan’s amended electoral framework requires a pre-election ending of the transitional institutional configuration. Ministers, governors and legislators involved in the caretaking structure are not allowed to contest in the forthcoming elections. This is a theoretically effective mechanism for separating ordinary government from the electoral contest. The current orders reportedly also limit caretaker officials in major financial commitments, public debt, strategic concessions and disposal of public assets. Those restrictions matter. They make the caretaker administration recognisable as an electoral interregnum rather than simply a newly constituted government with unrestricted powers.

Serious problems remain, however, with the most obvious being the Presidency itself.

The amended framework preserves President Kiir with his constitutional powers while the collegial vice-presidential structure disappears. Parliament has been dissolved. The power-sharing architecture created by R-ARCSS has ended. The risks of presidential concentration therefore increase sharply, and for this period, there is no obvious institutional substitute for the accountability mechanisms that have just been removed.

Those risks are further amplified by the increasingly bloated and legally questionable structure around the Presidency.

Even in the current caretaker construction, Tut Gatluak remains Presidential Adviser on National Security Affairs. Kuol Manyang Juuk remains Senior Presidential Adviser. Costello Garang Riiny remains adviser for international relations. Peter Chaleman Cawach remains Presidential Adviser for Peace. James Ngere Paciko was newly appointed Presidential Adviser on Governance as part of the new arrangements.

At least, however, presidential advisers can rely on an identifiable constitutional basis. This situation is markedly different for the opaque position of Presidential envoys.

Adut Salva Kiir continues in her position of Senior Presidential Envoy on Special Programs, a title that sounds as bizarre as the position actually is. The Presidency separately lists a Special Envoy for the Great Lakes Region. The constitutional basis for such offices is difficult to identify: The 2011 Transitional Constitution, in Article 108, provides for Presidential advisers. It does not establish a general category of powerful Presidential envoys with open-ended executive responsibilities and unclear lines of scrutiny and accountability.

The title “Senior Presidential Envoy on Special Programs” is particularly problematic. “Special Programs” defines neither a policy field nor a legal competence. The office has nevertheless become involved in high-level diplomacy and the organisation of political dialogue around the elections. A Presidential representative can plainly carry messages or conduct negotiations on behalf of the President. The constitutional difficulty begins when such an office exercises functions that ordinarily belong to ministries, Cabinet or other legally established institutions.

This is where the caretaker restrictions become important. If ministers are constrained from making major decisions while presidential advisers and envoys remain able to exercise broad political influence outside clearly defined statutory mandates, executive authority can simply migrate into the Presidency.

These issues illustrate that a real constitutional danger lies ahead. A caretaker arrangement tied to an election on 22 December can refer to an identifiable endpoint. If that election does not take place, the legal rationale changes fundamentally. South Sudan could then be left with an incumbent President, no legislature, no R-ARCSS vice-presidential structure, restricted caretaker ministers and a powerful presidential apparatus operating under much less clearly defined constraints.

Three months of caretaking can be defended as part of an imperfect legal exit from an exhausted transition. Indefinite caretaking cannot.

Dr. Jan Pospisil is an Affiliated Researcher at the Austrian Institute for International Affairs and an Associate Professor (Privatdozent) at the University of Vienna, and a member of PeaceRep’s Sudans research team.