Joint Statement On Amendments to the 2018 Peace Agreement

The Transitional National Legislative Assembly (TNLA) of South Sudan recently passed amendments to the 2018 Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS). These amendments notably defer critical pre-election requirements, specifically the national population and housing census and the permanent constitution-making process, until after the general elections scheduled for December 2026. This unilateral action has drawn significant international condemnation, with a joint statement from several Western embassies and the EU Delegation to South Sudan reaffirming their "grave concern." The international community insists that the R-ARCSS remains the fundamental basis for the transitional government's legitimacy and that any alterations must be made with the full consensus of all signatory parties, raising questions about the legal validity and political stability of the transitional process.

South Sudan's fragile political transition has been thrust into renewed uncertainty following the Transitional National Legislative Assembly's (TNLA) recent approval of amendments to the landmark 2018 Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS). These legislative changes, which include the deferral of the national population census and the permanent constitution-making process until after the December 2026 elections, have been met with immediate and strong disapproval from a coalition of international partners.

The joint statement issued by the Embassies of Canada, France, Germany, Japan, the Netherlands, Norway, Switzerland, the United Kingdom, and the United States of America, alongside the EU Delegation to South Sudan, explicitly voiced "grave concern" over actions taken "without the full consensus of all the signatories." This collective diplomatic rebuke underscores a fundamental challenge to the R-ARCSS's integrity and the legitimacy of the transitional government it established. The international community's position is clear: the 2018 peace agreement remains the indispensable legal and political foundation for South Sudan's transitional period.

This article will delve into the legal and political ramifications of these amendments, examining the R-ARCSS's foundational role in South Sudan's governance, the procedural requirements for its alteration, and the potential for a constitutional crisis arising from unilateral actions. It will highlight the critical importance of consensus-based decision-making in post-conflict transitions and the implications for legal practitioners operating within this evolving landscape.

The Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), signed on 12 September 2018 in Addis Ababa, Ethiopia, was designed to end years of civil conflict and establish a roadmap for a comprehensive political transition. This foundational document led to the formation of the Revitalized Transitional Government of National Unity (RTGoNU), outlining a detailed framework for governance, security sector reform, economic management, transitional justice, and the eventual conduct of democratic elections.

Crucially, the R-ARCSS is not merely a political accord but holds a superior legal status during the transitional period. Articles 8.1, 8.2, and 8.3 of the R-ARCSS explicitly establish its precedence, mandating that the agreement is legally binding on all signatories, requires legislative ratification, and must be incorporated into the Transitional Constitution. These provisions dictate that the R-ARCSS prevails in any legal conflict with the Transitional Constitution or other national laws, thereby serving as the supreme law of the land for the duration of the transition.

The Transitional National Legislative Assembly (TNLA) is the lower house of South Sudan's bicameral Transitional National Legislature, reconstituted in 2020 in accordance with the R-ARCSS. Its 550 members are allocated among the signatory parties to the peace agreement, reflecting a power-sharing arrangement. While the TNLA is vested with legislative competencies, including enacting laws and ratifying international treaties, the R-ARCSS itself stipulates a specific three-stage procedure for its amendment under Article 8.4: (1) approval by two-thirds of the Council of Ministers, (2) consent by two-thirds of the members of the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC), and (3) ratification by the Transitional National Legislature.

The recent amendments passed by the Transitional National Legislative Assembly primarily target key pre-election benchmarks outlined in the R-ARCSS. Specifically, the TNLA voted to defer the national population and housing census and the permanent constitution-making process until after the general elections scheduled for December 2026. Proponents of these changes argue that they are necessary to "fast-track" the long-delayed elections and remove perceived obstacles to the electoral timetable.

However, the legality and legitimacy of these amendments are subject to significant dispute. The core of the international community's and opposition parties' concern lies in the apparent lack of "full consensus of all signatories" to the R-ARCSS. Opposition lawmakers, such as Bol Joseph Agau of the National Democratic Movement, have challenged the amendments' legality, asserting that parliament failed to adhere to the explicit procedural requirements for amending the peace agreement. These procedures, as outlined in Article 8.4 of the R-ARCSS, necessitate initiation by signatory parties, endorsement by a two-thirds majority of the Council of Ministers, approval by a two-thirds majority of the Reconstituted Joint Monitoring and Evaluation Commission (RJMEC), and only then, ratification by the Transitional National Legislature.

While the Council of Ministers reportedly approved the amendments and the TNLA subsequently ratified them, the crucial step of obtaining consent from RJMEC appears to be either contentious or bypassed. RJMEC, along with the African Union and members of the United Nations Security Council, has previously rejected unilateral proposals to amend the R-ARCSS. Some legal analyses suggest that RJMEC's consent, while procedural, is essential for a valid amendment, although others contend that parliamentary ratification could still render the changes valid even if RJMEC's consent is skipped. This divergence highlights a critical legal ambiguity that undermines the predictability of the transitional framework.

Critics, including civil society organizations and political analysts, warn that these unilateral amendments risk plunging South Sudan into a constitutional and political vacuum, effectively delegitimizing the RTGoNU and Parliament, whose authority is derived from the R-ARCSS. The initial proposal by the Kiir administration to repeal Articles 8.1, 8.2, and 8.3 – which establish the R-ARCSS's supremacy – was met with strong international pressure and subsequently limited. Nevertheless, by altering the agreed-upon sequence of reforms, the current amendments are perceived by many as a strategic move to preserve executive dominance rather than genuinely advance the transformative objectives of the peace agreement, such as establishing a unified national army and transparent management of public resources.

Furthermore, the international community has highlighted the political context surrounding these amendments. The U.S. Ambassador to South Sudan, Michael J. Adler, specifically noted that meaningful political dialogue is compromised while First Vice President Riek Machar, a key signatory and leader of the SPLM-IO, remains under house arrest and on trial. This situation further complicates any claims of inclusive decision-making and underscores the deep mistrust that persists among the parties to the agreement, threatening the fragile peace.

The Transitional National Legislative Assembly's unilateral amendments to the R-ARCSS represent a significant legal and political challenge to South Sudan's peace process. By deferring critical pre-election requirements without the full consensus of all signatories, the RTGoNU risks undermining its own legitimacy and eroding the trust painstakingly built through the 2018 agreement. The strong reaction from international partners underscores the global community's commitment to the R-ARCSS as the sole legitimate framework for South Sudan's transition and signals potential repercussions for continued unilateralism.

For legal practitioners in South Sudan, these developments introduce considerable uncertainty. Attorneys advising on governance, investment, or human rights must navigate a landscape where the supreme legal authority of the R-ARCSS is being challenged by legislative action, potentially leading to a constitutional crisis. The integrity of future elections, the permanent constitution-making process, and the broader rule of law are all at stake. Practitioners should closely monitor the responses from RJMEC, the African Union, and other international guarantors, as well as any further dialogue or lack thereof among the signatory parties. Adherence to the letter and spirit of the R-ARCSS, particularly its consensus-based amendment procedures, remains paramount for ensuring a stable, legitimate, and ultimately democratic future for South Sudan.