THE CONSTITUTIONALITY OF CONSTITUTION AMENDMENT IN ZIMBABWE

There has been whirlwind of political rumours in Zimbabwe, of the intention by ZANU PF to extend the term-limit of its leader and current President of the country, ED Mnangagwa beyond year 2028, whilst the Zimbabwe Constitution of 2013, limits the president's terms in office to two, on a five year basis. This two term-limit is stated by Section 95(2)(b), with an exception of 'unless otherwise provided in the Constitution', by the contents of the same paragraph (b). Although, Section 95(2)(b) provide a remedy to its peremptory requirement through an exception, Section 91(2) negates the exception by mentioning that a person is disqualified for election as President or Vice-President if he or she has already held office as President under this Constitution for two terms, whether continuous or not, and for the purpose of this subsection three or more years' service is deemed to be a full term. The success of these provisions, read together, depend on methodology in interpretation applied. 

What does ZANU PF want and politically intend to do? The RESOLUTION 1, of ZANU PF, under the mantra ED2030, seeks the extension of their incumbent leader, and President of the country, an extension of his term(term-extension), not a new term(term-limit), as he already has the constitutionally mandated two terms on his shoulders coming to an end in year 2028. Public opinion is divided on the constitutionality of either term-extension or term-limit, in their definition, and associated amendments that comes with it. Thus, presenting a legal-political quagmire on the interpretation of the Constitution's provisions. And a test on the Legislature and Executive arms' respect for the sacrosanct of the Constitution, and the rule of law in the constitutional history of the newly enacted Zimbabwe's Constitution of 2013. 

The ZANU PF party, a liberation movement in Zimbabwe has been in power for the past four decades in Zimbabwe, and recently won August 2023 national elections under the leadership of Emmerson Mnangagwa. Just nearly two years after winning the elections, the party is rumoured to be proposing for the amendment of Zimbabwe Constitution of 2013. This is to allow its current leadership an extension of the two term constitutional limit that is coming to an end in the next three to four years time. On the height of this 2030 atmospheric speculation, President Mnangagwa appeared on social circles making vague and unconvincing statements, declaring himself to be a constitutionalist who will abide by the constitution. An unconvincing  claim since it has failed to deter internal ZANU PF political utterances advocating for the 82 year old President to rule beyond the two term limit, nor invoke reprimandation from the leadership structures of the party itself against such constitutionally irresponsible rhetoric within its ranks. This raises more questions than answers, as there is no official party position challenging this political rumour as false. As a result concerned Zimbabwe citizens, and some opposition parties have began to interrogate the constitutional feasibility of amending the Zimbabwe Constitution of 2013, to allow the so-called RESOLUTION 1, ED2030 Term Extension to happen. 

Currently, what is in the public domain is the understanding that, Section 91(2) of the Zimbabwe Constitution of 2013, allow only two terms of office for the president, with Mnangagwa currently serving his last term, that is coming to an end around 2028. Under the motivation of Section 91(2), the citizens seem to be publicly objecting Mnangagwa' 2030 idea

The provisions towards constitutional amendment of the Zimbabwe Constitution of 2013, is explicitly explained on Chapter 18, Section 328 of the same Constitution. And Section 328(1) describes a Constitutional Bill, as a Bill that seeks to amend the Zimbabwe Constitution of 2013, and a Term-Limit Provision, as a provision of the same constitution which limits the length of time that a person may hold or occupy a public office. Section 328(1) is succeeded by Section 328(2) which outline that the Act of Parliament that seeks to amend the Constitution must do so in express terms, followed by Section 328(3) which requires 90 days notice of the Bill to the Senate and the National Assembly before it is presented.

Crucial to the issue at contest, is Section 328(4). This is because this section brings in the underlying political factor, which is the practicing of democracy, as it requires public participation and their consent before a Constitutional Bill is passed. However the same section does not elaborate with specification how the public participation and consent will be acquired, unlike on Section 328(6)(a) and (b), which in peremptory terms, categorically state that where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16, within three months after it has been passed by the National Assembly and Senate in accordance with subsection (5), it must be submitted to a national referendum, and if it is approved by a majority of the voters voting at the referendum, the speaker of the National Assembly must cause it to be submitted without delay to the President, who must assent to and sign it forthwith. As for Section 328(7), is of lesser importance in this particular case in that it speaks of who the amendment applies to, thereby disqualifying those who held or occupied any public office before a term-limit amendment from benefiting from such amendment. The only area of conflict on this provision is interpreting and properly establishing the referential application of held or occupied, terms composed with too many loopholes for politicians to easily maneuver the demands of the section, hence if defined to be primarily referring to past not current, President Mnangagwa would likely benefit.

The political question at hand now is, since ZANU PF already has the majority in the National Assembly required by Section 328(5), and have already co-opted some opposition members into their ED2030 PLAN, how would they ensure the premeditated 2030 PROJECT is democratic by implementing Section 328(4). This section was not written with specificity, rather it contains elements of vagueness that leave the provision vulnerable to political manipulation. Unlike Section 328(6)(b), which outline approval by a majority of the voters voting at the referendum, Section 328(4) with no clarity says, immediately after the Speaker has given notice of a Constitutional Bill in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written  submissions, and must convene meetings and provide facilities to enable the public to do so. Expressed views through public meetings, written submissions and convened meetings are confined in a constraint in their political formulation, and provisional expression, therefore short of equivalence to referendums. This is worsened by Section 328(8), stating that Subsections (6) and (7) must not both be amended in the same Constitutional Bill nor may amendments to both those subsections be put to the people in the same referendum. Absolutely vexing as the Constitution draws a separation in application of Section 328(4) and Section 328(6) provisions, as reflected by the requirement of a referendum  on Section 328(6)(a) and (b), in instances where a Constitutional Bill seeks to amend Chapter 4 and Chapter 16. This means Section 328(4) and Section 328(6) are independent in their application in addressing matters related to term-limits and amending of Chapter 4 and Chapter 16, therefore can not both be undertaken in a single Constitutional Bill nor be applied interchangeably on matters related to these two issues. This creates a dilemma as to where exactly should a referendum be conducted when amending a Constitutional Bill as there is no living precedence in a related matter to guarantee Zimbabweans a referendum. This highlight the complexity around amending Constitutions. On second impression, the Constitution create three prospective types of  Constitutional Bills, that it has anticipated at promulgation, a Constitutional Bill, a Term-Limit Constitutional Bill and a Constitutional Bill to Amend Chapter 4 or Chapter 16, though Section 328(a) and (b) provisions provide with particularity, a referendum as a requirement for any Constitutional Bill that seeks to amend Chapter 4 and Chapter 16 of the Constitution, whilst other Constitutional Bills are left to the Section 328(4) requirements of mere expressed views through public meetings, written submissions and convened meetings. Noticeably, the intrinsic interpretation of the construction of Section 328(4) is at the mercy of politicians for a referendum to be conducted. This is because, from an objective angle, Section 328(4) may imply expressed views through public meetings, written submissions and convened meetings are constitutionally adequate to justify the participation and consenting of the public for those Constitutional Bills to pass, though such justification is politically insufficient, if not incorrect in a democracy.

A Constitution is a sacrosanct Supreme law of the land, and rule of law is an integral element in any democracy. By virtue of interrogating the constitutional facts without attaching political emotions with intent to frog-march masses for nor against the issue, it is constitutionally doable to amend the Zimbabwe Constitution of 2013, as prescribed by its Chapter 18, Section 328. To meet the democratic threshold, such an amendment must be guided by the consenting will of the people under the principle of majority rule. The will of the people expressed not only through mere public views in public meetings, written submissions and convened meetings, but be conducted under the legitimacy of a foregone national referendum to acquire rather partial but absolute constitutionality. 

By P Dekeya

Lawyer & Legal Consultant