By Athian wen Akech Ong’a*
Salaam le Junubin!
In recent days, public discourse across social media platforms has witnessed varying interpretations advanced by a few members of the Legal Profession regarding Republican Order No. 32-9/2026—the Republican Order dissolving the Government to pave the way for general elections. Much of this commentary offers readings that are fundamentally at variance with the letter, spirit, and constitutional jurisprudence governing executive authority during transitional periods.
It is incumbent upon us as lawyers to elevate the debate, apply established canons of statutory and constitutional interpretation directly to our factual context, and clarify the unassailable legal foundations governing this presidential action.
I. The Presumption of Constitutionality, Harmonious Construction, and Lex Posterior: Reading Constitution Amendment No. 13 and Section 16 of the National Elections Act, 2012 (as amended) in Context:
A central flaw in the arguments raised by a few members of the legal profession is the isolated reading of pre-existing provisions to challenge valid executive action while disregarding foundational canons of interpretation:
* The Presumption of Constitutionality and Statutory Validity: Under established constitutional jurisprudence, any Act of Parliament duly passed by the Legislature and assented to—including Constitutional Amendment No. 13 and the National Elections Act, 2012 (as amended)—enjoys a strong legal presumption of constitutionality and validity. Until and unless such enactments are formally challenged, adjudicated, and declared unconstitutional by a competent Court of Law, they remain binding, valid laws of the land that the Executive is constitutionally obligated to enforce.
* The Doctrine of Harmonious Construction: The Constitution and enabling statutory frameworks must be read as an integrated, organic whole. General provisions, specific transitional clauses, and statutory electoral laws do not exist in opposition; rather, specific mechanisms introduced for transitional milestones operate within and alongside the broader legal architecture.
* The Principle of Lex Posterior Derogat Legi Priori: Under lex posterior, where a newly enacted constitutional amendment and enabling statutory provisions are validly passed, promulgated, and brought into force, they modify, override, and supersede any prior inconsistent text to the exact extent of that inconsistency.
Contextual Application to the Facts:
* The Alleged Conflict: Detractors cite general, baseline provisions under Article 101 to argue that presidential authority to relieve executive officeholders remains bounded by pre-amendment limitations.
* The Operation of Constitution Amendment No. 13 and Section 16 of the National Elections Act, 2012 (as amended): Constitutional Amendment No. 13, read together with Section 16 of the National Elections Act, 2012 (as amended), represents the latest valid expression of sovereign authority, specifically enacted and operationalized to establish the legal, procedural, and structural framework for general elections. Enjoying the full presumption of law, these enactments govern executive action during this transition.
* The Legal Result: When read harmoniously and together with Section 16 of the National Elections Act, Article 101 supplies the general baseline of presidential executive authority, while the specific mechanisms introduced under Amendment No. 13—specifically Articles 104C(5) and 104D(9)—provide the precise operational powers required for executive reorganization prior to polling.
Specifically, Section 16(2)(a) and Section 16(4)(b) of the National Elections Act, 2012 (as amended), read together with Articles 104C(5) and 104D(9), establish clear legal consequences:
* Constitutional and Statutory Trigger & Dissolution Mandate Article 197A (17) and Section 16(2)(a): Upon the announcement of the election date by the National Elections Commission, the President is mandated, within three months to the election date, to dissolve the National Legislature, State Legislative Assemblies, and State Governments.
* Removal of the Vice Presidents (Section 16(4)(b)): Without prejudice to Section 16(2)(a), upon the announcement of the date of elections by the Commission, the President is explicitly empowered, within three months to the election date, to remove the First Vice President and Vice Presidents pursuant to Articles 104C(5) and 104D(9) of the Transitional Constitution, 2011 (as amended).
* Express Vesting of Executive Authority: They specifically vest constitutional and statutory power in the President to relieve the First Vice President and the Vice Presidents from their respective offices.
* Legitimate Constitutional Purpose: They explicitly define the legal justification for removal: to facilitate, clear the runway for, and pave the way for the conduct of general elections.
* Operation as Lex Specialis: Operating as specific transitional mechanisms, they override general executive limitations in Article 101, legally shielding the President’s action from claims of being ultra vires. In view of the foregoing, in issuing Order No. 32-2026, the President acted intra vires!
II. Deconstructing the Ultra Vires Claim: Express Constitutional and Statutory Vesting
To establish that an executive instrument is ultra vires, a challenger must prove that the power exercised is neither conferred by the law nor exercised for an authorized constitutional purpose. In constitutional litigation, he who alleges bears the evidential burden of proof. Those asserting that the President acted beyond his mandate fail to discharge this burden because they ignore the explicit legal parentage of the Order:
* Express Statutory & Constitutional Citation: Republican Order No. 32-9/2026 does not rely on vague executive prerogative; it explicitly cites and invokes Articles 104C(5) and 104D(9), operating in direct alignment with Section 16(2)(a) and Section 16(4)(b) of the National Elections Act, 2012 (as amended).
* Direct Power Vesting: Read together with Section 16(4)(b) of the National Elections Act, Articles 104C and 104D explicitly vest non-delegable authority in the President to relieve the First Vice President and the Vice Presidents from office within the three-month electoral window following the Commission’s announcement.
* Alignment of Substance and Purpose: The Order’s operative terms correspond directly to the statutory purpose mandated by Amendment No. 13 and the governing provisions of the National Elections Act. Because the executive action stays strictly within the four corners of the express powers conferred by the supreme law and electoral statute—both of which carry an unrefuted presumption of constitutionality—the ultra vires argument collapses under basic legal scrutiny.
III. Constitutional Basis for Ministers, Caretaker Arrangements, and State Executive Reorganization
The legal architecture of Republican Order No. 32-9/2026 extends seamlessly across both national dockets and state governance structures through distinct, corresponding constitutional and statutory mechanisms:
* Legislative Assemblies and State Dissolutions (Section 16(2)(a) & Article 166(4)(a) & (b)):
Section 16(2)(a) of the National Elections Act explicitly mandates the dissolution of the National Legislature, State Legislative Assemblies, and State Governments within three months to the election date. This works hand-in-hand with Article 166(4)(a) and (b), empowering the President to appoint Caretaker Governors and Chief Administrators.
* National Executive Dockets: Article 112A(6), read together with the statutory requirements of the National Elections Act, provide express constitutional authority for the President to relieve National Ministers and Deputy Ministers and appoint Caretaker Ministers. This ensures the vital administrative law principle of governmental continuity, preventing an institutional vacuum while the electorate prepares to vote.
* The Legal Status of Undersecretaries: Arguments claiming that Undersecretaries automatically become “Acting Ministers” in Ministries where no Caretaker Minister have been appointed, misread the Order. The Order explicitly directs Undersecretaries to manage day-to-day administrative operations under line-ministerial supervision. Managing routine administrative affairs under oversight of “Acting” Caretaker Minister does not constitute a political appointment to Cabinet rank, nor does it transfer policy-making powers reserved for constitutional Ministers under the law.
* Caretaker Status in Republican Order No. 32-9/2026: Debating “Caretaker” versus “Acting” status is entirely misplaced. Had commentators bothered to examine the explicit text of Republican Order No. 32-9/2026, the inescapable conclusion is that the appointees are expressly designated as Caretakers. The text of the Order explicitly and unambiguously uses the terms “Caretaker Ministers” and “Caretaker Governors/Chief Administrators.” In administrative and constitutional law, caretaker appointments are well-recognized legal instruments framed precisely to preserve institutional continuity and manage routine state affairs during interim election periods without exercising broad, new policy mandates.
IV. Conclusion: A Legally Unassailable Transition
When evaluated through a contextualized legal lens—where the presumption of constitutionality protects enacted laws, harmonious interpretation reconciles general powers with specific provisions, lex posterior establishes Amendment No. 13 and Section 16 of the National Elections Act, 2012 (as amended) as controlling enactments, and Articles 104C, 104D, 112A, and 166(4) supply explicit statutory and constitutional authorization—the constitutionality of Republican Order No. 32-9/2026 is fully intact.
South Sudan cannot remain in an endless, perpetual state of transition. The law provides a clear, constitutional runway for the sovereign expression of the public will through the ballot box, and the executive actions taken were both constitutionally mandated and legally imperative to move the nation forward.
Respectfully submitted.
*Athian Akech is a lawyer and advocate. He is currently serving as the Head of Legal Administration in the Office of the President. He is a graduate from the University of Nairobi Law School.
