Unconstitutional changes of government in Somalia and South Sudan?

Unconstitutional changes of government in Somalia and South Sudan?Date | 9 November 2026

There are no military coups in Somalia and South Sudan. Unconstitutional change of government is not, however, limited to instances of military seizure of power only. As established in the Lomé Declaration and the 2007 African Charter on Democracy, Elections and Governance (ACDEG), there are four other instances in addition to a coup d’etat that constitute unconstitutional changes of government. Of relevance for the context of both Somalia and South Sudan is one of the two instances of unconstitutional retention of power by incumbents. This most particularly concerns Article 23(5) of ACDEG, which involves unconstitutional retention of power through the adoption of constitutional or legal changes that constitute ‘an infringement on the principles of democratic change of government’.

Throughout 2026, there has been growing political contestation in Somalia involving constitutional disputes. This most recent round of political crisis resulted from the confrontation among the various political forces in Somalia over the contentious process of the revision of the 2012 Constitution and the model for the conduct of elections. President Hassan Sheikh Mohamud has pursued a transition from the longstanding indirect, clan-based electoral system to universal suffrage under a one-person, one-vote model. Despite fierce rejection of the process and outcome of the constitutional revision by the opposition, President Mohamud pushed through parliament the contested constitutional amendments in March 2025.

Opposition groups have strongly rejected the constitutional changes. They argued that the changes were adopted unilaterally and without the broad political consensus required for such fundamental reforms. Consequently, they do not recognise the extension of President Mohamud’s and parliament’s mandates and maintain that his continuation in power and that of the parliament are constitutionally illegitimate. The resultant political impasse subsequently escalated into armed confrontation, when opposition groups sought to stage protests on 4 June. It was the deployment by the Government of security forces to the residences of the former Prime Minister and former President of Somalia ahead of the planned protest that precipitated the boiling over of the mounting tension into armed confrontation. On 3 June, fighting erupted in Mogadishu between government forces and armed groups loyal to opposition leaders near the residences of former Prime Minister Hassan Khaire and former President Sharif Sheikh Ahmed. The confrontation continued into 4 June before subsiding following mediated talks.

The constitutional dispute has since taken a more consequential turn. Last month, Somalia’s opposition filed an application to the Supreme Court of Somalia to determine the constitutionality of the process of the revision of the constitution and extension of the term of office of the President and Parliament. On 5 November 2026, the Supreme Court handed down a judgment on this application after consideration of the submissions of the applicants and the respondent, declaring extension of term of office of federal institutions, including the President’s unconstitutional. The five Supreme Court Judges unanimously decided that the constitutional amendments adopted in 2026 did not extend the four-year mandates of the incumbent federal institutions, declaring that the mandates of the Parliament and the Federal Government expired on 14 April and 15 May 2026, respectively. The ruling also invalidated decisions taken by these institutions after those dates, and tasked the government to perform routine caretaker functions. The Supreme Court also directed political stakeholders to agree on a consensus electoral framework within 30 days and conduct elections within 90 days.

In response to the Supreme Court’s exercise of its mandate, President Mohamud rejected the ruling of the Court and announced the replacement of the President of the Supreme Court. The Chief Justice warned of threats to his life and violent interference by the government following the seizure by armed forces of the premises of the Supreme Court. In response, Ben Saul, the United Nations Special Rapporteur on human rights and counter-terrorism, has publicly called on Somalia’s leadership to respect the independence of the Supreme Court, constitutional procedures and limits on presidential terms.

For the AU, this development presents the latest instance in which the question of the application of Article 23 (5) of the ACDEG arises. While the application of this provision to the case of Somalia was not clear-cut between the expiry of the term of office of federal institutions in April and May 2026 and the determination of constitutionality by the Supreme Court,  the 5 November Supreme Court ruling leaves no doubt as to the applicability of this provision. The fact that the Court ruled unanimously makes the case more compelling. Under the circumstances, the refusal of the President to respect the decision of the Court represents a case of infringement of the principles of democratic change of government envisaged in Article 23(5) of ACDEG, warranting the invocation by the AU Peace and Security Council of its Article 7(1)(g) mandate.

The situation in South Sudan, while not the same as Somalia, invites similar questions about the conformity of measures that the Government of South Sudan took in recent months with Article 23(5) of ACDEG. The transitional system of governance of South Sudan is governed through the Revitalised Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS). The R-ARCSS, under Articles 8.2 and 8.3, makes the Agreement supreme over the Constitution and national law. The R-ARCSS, whose compliance during the transitional process is determined by the Revitalised-Joint Evaluation and Monitoring Commission (R-JEMC), requires under Article 1.9.4, consensus of the signatory parties to the Agreement, including the first vice president who signed the agreement as leader of the SPLM/A-IO, for any changes to the transitional system of governance and implementation of the Agreement.

Despite this and under the pretext of the convening of elections, President Salva Kiir, one of the signatories of the R-ARCSS, unilaterally not only secured the passage of Constitutional Amendment No. 13 and the Election Act Amendments in September but also dissolved, on 22 September, by Presidential Decree, the Revitalised Transitional Government of National Unity (RTGoNU), the national and State legislatures and all State and Administrative Area governments, removed the First Vice President and four Vice Presidents, and appointed a caretaker administration answerable to him alone. The amendments and dissolution were adopted outside the procedures laid down in the R-ARCSS (Arts. 1.9.4 and 8.4), which the Transitional Constitution still declares supreme (Arts. 8.2, 8.3 and 1.18.2). These measures were also adopted by bypassing R-JEMC, the institution mandated to monitor compliance with R-ARCSS.

It was within this context that the UN Human Rights Commission on South Sudan warned of the steps taken by President Kiir’s government as amounting to a ‘constitutional coup’. The contention is that the amendments and the Presidential Decree were adopted without compliance with established constitutional governance processes of South Sudan and, as such, infringe the principles of democratic change of government, contrary to Article 23(5) of ACDEG.

As with the case of Somalia, the developments in South Sudan invite the consideration of the application of Article 23(5) of ACDEG and the exercise by the PSC of its Article 7(1)(g) responsibility. Additionally, South Sudan also raises a major question about the legality or legitimacy of the electoral processes to be undertaken under such circumstances.

These two cases in Somalia and South Sudan are not a typical manifestation of unconstitutional change of government that takes the form of military seizure of power. Yet, the constitutionality question that they both raise is no less serious as far as the AU norm on unconstitutional change of government is concerned. The trend so far shows that the AU does not respond as strongly and proactively to such cases as it does to coups. The two cases present the AU with the opportunity, at the very least, to make an assessment of their compliance with Article 23(5) of ACDEG and to demonstrate that it is serious about upholding its norm on unconstitutional changes of government beyond coups. Ignoring these cases would further accentuate the crisis of credibility facing AU’s enforcement of the norm on Unconstitutional Changes of Government.