Source: The Conversation – Africa – By Jan Pospisil, Researcher at the Austrian Institute for International Affairs
South Sudan has not held an election since it gained independence 15 years ago, and progress towards a new constitution has stalled. Election dates have been set and postponed at least three times. A new date has been set for December 2026 but it’s unclear the poll will take place. If it does, it will be the first electoral test for President Salva Kiir, who has been in power since 2011. It raises the question of what legal guardrails exist for a smooth transition to new leadership outside an election. Jan Pospisil, who has studied the country’s politics and power-sharing agreements, explains what’s in place.
What legal frameworks govern presidential succession in South Sudan?
Two legal frameworks operate side by side to regulate the succession question in South Sudan: the 2011 transitional constitution and the 2018 peace agreement, which has a quasi-constitutional quality.
Read together, the logic in the 2011 and 2018 frameworks is straightforward. Upon vacancy, the first vice-president acts as president, but only until the party in power nominates a successor. The president’s party then has 48 hours to nominate a replacement. If a nomination is made within that period, however, the nominee is sworn in and replaces the acting first vice-president.
The peace agreement overlays the constitutional acting mechanism with a time-limited party entitlement. But it does not replace the constitutional fallback.
A more granular breakdown looks like this.
The 2018 agreement is based on a power-sharing deal between five major political parties and blocs. It is the primary framework governing the country’s transitional period from conflict to democracy.
The peace agreement created a collective presidency composed of a president, one first vice-president and four vice-presidents. The four vice-presidents are considered equal in rank.
The key provision on succession is clause 1.6.5. It states that if the post of the president falls vacant during the transitional period, the replacement shall be nominated by the respective party as constituted at the signing of the agreement. The process of choosing a successor must also be done within 48 hours of the post falling vacant.
The clause establishes two principles.
First, the presidency remains allocated to the party that originally held the position under the power-sharing arrangement. In this case, it’s the mainstream SPLM, now called SPLM-IG, for “in government”. This is to differentiate it from the main opposition that formed in December 2013 in the course of civil war, SPLM-IO, for “in opposition”.
Second, the party’s right to nominate a successor is time-bound. The 48-hour window is designed to preserve the elite settlement and guarantee executive continuity with minimal friction.
What the agreement doesn’t do is spell out in detail what happens during those 48 hours. It does not foresee the creation of a separate interim authority for this short period.
Instead, continuity is ensured through the 2011 transitional constitution.
In the constitution, article 102 defines five ways the president’s office can become vacant. These are expiration of the term of office, resignation, impeachment, mental infirmity or physical incapacity and death. It lays out the respective succession rules.
If the presidency falls vacant, the vice-president assumes office temporarily,
pending the filling of this position, within fourteen days from the date of the occurrence of the vacancy, by a nominee of the political party on whose ticket he or she was elected.
Under the post-2018 structure, this provision applies to the first vice-president.
There has been precedent for such structured succession. In 2005, Salva Kiir assumed regional leadership following the death of John Garang under the constitutional framework that was then in force. At the time, South Sudan was a semi-autonomous region led by Garang, with Kiir as his deputy.
What happens if the 48-hour deadline is missed?
This raises difficulties. The 2018 agreement sets a time limit but does not contain a separate sanction clause.
If nomination occurs on hour 72 or 96 rather than hour 48, the text does not specify whether the party’s entitlement automatically lapses.
Different interpretations are possible. One reading treats the deadline as mandatory: once expired, the first vice-president’s acting role becomes substantive, and he or she becomes the president.
Another reading is that a delayed nomination could still be recognised if political actors agreed. This would be in line with the transitional constitution, which allows a 14-day window for nominations that need to be accepted by the vice-president acting as president.
In practice, such a scenario would likely be resolved through political bargaining rather than judicial enforcement.
What about the issue of someone being detained or being on trial?
This is a further complexity as the current first vice-president, Riek Machar, is in detention and on trial.
Detention or trial, however, do not automatically create a vacancy under either the 2011 constitution or the 2018 peace agreement. Unless the office holder resigns or is formally removed, the position remains legally intact.
If the presidency were to fall vacant while the first vice-president was detained but not removed, the legal text would still designate the latter as the acting authority.
The 2018 agreement does not rank the other vice-presidents for automatic succession. All are explicitly of equal rank.
Any attempt to bypass the first vice-president without formal removal would therefore be politically and legally contested.
Where are the biggest risks in the current system?
Behind these legal provisions lie political realities.
The 48-hour clause requires rapid consensus within the president’s party, the mainstream SPLM. The 2018 agreement does not specify which internal organ of the party must nominate the successor. Instead, this process is guided by internal party leadership structures, rules and regulations. In practice, this is likely to be handled by the SPLM Political Bureau.
However, the decision-making would be shaped by more than formal party ranks. Other factors, especially the support of the security sector, ethnopolitical balances and existing patronage networks, would come into play.
The presidency has historically been embedded in military and security structures, which gives succession an importance that extends beyond procedural law.
The 48-hour provision is clear on paper, but its operation depends entirely on political cohesion. If consensus fails, the text alone cannot prevent contestation.
How would elections help?
The picture could change once elections become a realistic possibility and a nomination process is held. South Sudan has postponed elections previously due to delayed preparations, political resistance and lack of funding. Polls are now slated for December 2026.
A post-transition order would revert to a presidency-vice presidency model as per the transition reflected in the country’s National Election Act, with a vice-president elected on a ticket as running mate, and thus positioned as the undisputed successor. Elections would force parties to clarify leadership hierarchies in advance.
In this sense, an electoral framework does not merely choose a president – it simplifies succession.
– South Sudan has never had an election to hand over presidential power: so what are the rules of succession?
– https://theconversation.com/south-sudan-has-never-had-an-election-to-hand-over-presidential-power-so-what-are-the-rules-of-succession-276640
