This case note critically analyses Justice Malek Mathiang Malek v The Minister of Justice and Constitutional Affairs, a case that challenged President Mayardit’s dismissal of 14 judges in the East African Court of Justice as unlawful under South Sudan’s Transitional Constitution and the Treaty for the Establishment of the East African Community. The court upheld the challenge and ordered the president to reinstate the judges to their previous positions. However, instead of reinstating them, the judges were asked to reapply, which they refused to do, saying that they should be reinstated automatically. The case is a significant development for at least two reasons: 1) it is the first ever case to overrule President Mayardit’s Republican Decree; 2) it is a triumph for the rule of law in that the court declared that the president and his government are subject to the law – like all the governments of the partner states.

This article reflects on the Transitional Constitution of South Sudan and the political tumult in which it has landed the country. In particular, it looks at the contentious provisions of article 101(r) and (s) of the constitution, which give the president powers to remove an elected state governor and appoint a new governor, upon the occurrence of a crisis whose nature is undefined in the constitution and remains intellectually inconceivable. The article argues that these provisions concentrate political power in the hands of president, to the extent that they undermine the development and maintenance of democracy and the rule of law in the country. In conclusion, it argues for the adoption of a democratic constitution and a federal system of government as the solution to the concentration of political power in Juba.