By Philani Lithandane Ndlovu
In its recent annual conference, the Zimbabwe African National Union Patriotic Front (ZANU-PF) passed a resolution to amend the Constitution of Zimbabwe Amendment 20 of 2013 to purportedly extend the presidential and parliamentary terms of office beyond the expiry of their five-year term in 2028.
The resolution seeks to add a further two years to a mandate given by the electorate of Zimbabwe in the August 2023 general elections. In public discourse, the legal implications of the political resolution have been overshadowed by the proverbial noise generated by its political implications.
The sustained view of this writer is that the ZANU-PF resolution runs against the principle of legality which holds that a newly adopted law does not operate with retrospectivity. When the legislature adopts a new law, its effect is to shape future events and not those already commenced or completed. Respect for the rule of law implies that the law is laid down in advance and those called upon to respect it must have known about it ahead of its implementation. It is absurd to expect people to give effect to a law that does not exist.
In a scenario where the law is constantly shifted to meet the popular views of the powerful, such is no law but a continuous substitution of dominant views as law. It clearly accords with John Austin’s command of the sovereign theory of law and engenders a legal environment unpredictable, brutish, and therefore indefensible.
Arguably, the current presidential and legislative mandates derived from the people in terms of section 88 of the Constitution are subject to the term limitations that prevailed at the time of the election which granted the mandate in 2023.
Hypothetically, it is correct to reason that voters electing a president or a member of the legislature for local and national legislatures might have exercised their choices differently if they had known in advance that they were granting a seven-year instead of a five-year term. To extend the term contrary to the information available to the electorate at the time of election in 2023 is to brazenly stage an electoral heist far more disdainful than the previous allegations of electoral rigging ever were.
It cannot be denied that ZANU-PF as an organisation has full rights to determine its own internal operations as determined by internal procedures, instruments, and inter-personal relations. It becomes a matter of concern however, when an organisation which happens to be the ruling party resolves to mutilate the constitution of the country with reckless abandon, bulldozing its way rough shod through the electorate and adopting resolutions that fly against the face of legality and national interest.
While the calls for the extension of Mr Emerson Dambudzo Mnangagwa’s term of office beyond 2028 have overshadowed the extension of the parliamentary term by the same token and span, the isolation of section 92 as the legal provision requiring amendment to meet the objective is misleading. A reading of section 92 loops back to sections 158 and 143.
In a debate between Professor Jonathan Moyo and Senator Coltart concerning section 328 of the Constitution, Senator Coltart rightly argues that section 328 places significant procedural hurdles in the amendment process while Professor Moyo opines that such hurdles do not apply to the extension of the term as proposed by ZANU-PF.
The latter’s opinion flows from a disjointed and selective reading of the Constitution lacking a panoramic appreciation required in legal interpretation. It is an isolationist interpretation which misses the wider and more inclusive capture of not only the textual meaning but also the broader contextual foundations upon which a constitutional document is to be deciphered. The true import of section 328 is canvassed later in the discussion.
Thers is an obsession with pursuing the amendment of section 92. Firstly, it is a relatively empty provision regarding the ZANU-PF objectives of extending the presidential term currently running. As can be gleaned from the face of the provision itself, “[t]he election of the President and two Vice-Presidents must take place within the period specified in section 158” (section 92(1)). Before flipping to read section 158, it is notable again in subsection 5 of the same section that “[t]he election of the President and two Vice-Presidents must take place concurrently with every general election of members of Parliament, provincial councils and local authorities.
The Constitution clearly affirms the concurrency of the presidential and legislative terms whose mandate is determined by section 143. Section 143(1) determines the duration and dissolution of Parliament and sets a five-year term limit “which runs from the date on which the President-elect is sworn in and assumes office” in terms of the relevant provision of section 94. Regarding the successive election, section 143 refers to section 144(1) which applies when a parliament has not been dissolved for any reason prior to the expiry of its term. A presidential proclamation calling for the election sets dates for the next general election within periods and time limits set under section 158.
As already highlighted above, an amendment of section 92 without an amendment of section 158(1)(a) would not deliver the goal being pursued by ZANU-PF. The effect of section 158(1)(a) is to set the polling dates for a general election which must take place “not more than (a) thirty days before the expiry of the five-year period specified in section 143.” Without equivocation, the five-year limit is not subject to section 92 but section 143.
The proposition of an amendment of sections 92, 158, and 143 is legally unsound for several reasons.
Firstly, a constitution is a sacred and broad document which should not be altered casually to satisfy temptations to entrench a saintly president beyond the term-limits carefully etched into the constitution. Casual amendments risk reducing the Constitution from being a supreme law (section 2 of the Constitution) to a mere statute frequently deployed as a servant and tool of the powerful. It implies that the provisions of the Constitution are not sacrosanct as they can be altered at any time. Such reasoning is steeped in the parliamentary supremacy traditions which characterised the Lancaster House Constitution of 1980.
Secondly, the effect of the proposed amendment would not be anecdotal and once-off conferment of a mandate on a figuratively “good president” as Mr Mnangagwa has been described. Rather, it would be a permanent alteration of parliamentary and presidential terms from the current five-year to seven-year terms. This literally extends the period of accountability for the legislature and executive in ways that deprive the masses of the opportunity for regular review of the performance of public officers.
Thirdly, the amendment would be a Constitutional Bill to which section 328 of the Constitution applies. The ZANU-PF proposition is based on a misreading of section 328 of the Constitution and clumsily conflates the terms of office for the executive and legislature with their eligibility as candidates in their personal capacities. It is clear from a reading of section 328(7) that reference to a term-limit is to an individual candidate and not the term of office such as the presidency or parliament. Admittedly, the Constitution’s requirement of a referendum for amendments affects chapters 4 and 16 (s 328(6)(a)) and is therefore not applicable to chapter 5 (the executive) and chapter 6 (the legislature).
An attempt to extend the presidential and parliamentary terms cannot be achieved by merely applying section 328(7) of the constitution. There is a distinction between the concept of a five-year term envisaged in section 143 and the term limit provision envisaged in section 328(7). The latter concerns an individual’s eligibility to hold a term of office while the former refers to the duration of a term itself. Clearly, section 143 refers to the term of parliament as it legally runs from 2023 to 2028 and has nothing to do with the incumbency of Mr Mnangagwa and the rest of the parliamentarians in their individual capacities. If ZANU-PF manages to amend section 91(2) to legitimise Mr Mnangagwa’s eligibility to re-run as a presidential candidate beyond the two-term limit imposed under section n 91(2), it will not automatically confer upon him an extended period in the office. It merely legitimizes his right to stand as a presidential candidate beyond the two-year term-limits imposed under section 91(2). According to section 91(2):
“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, …”
Mr Mnangagwa who completed Mr Mugabe’s presidential term in 2017 has since been elected twice to the presidency. He is technically disqualified from eligibility under section 91(2). An amendment of section 91(2) and not section 92 will only legitimize his eligibility as a candidate without simultaneously giving him a further two-year mandate contrary to the wishes of the electorate in 2023.
The Constitution was adopted in 2013 after lengthy consultations with the citizens who called for limited terms of office for public officials. The consultation was akin to what can be termed the forging of a social contract between the government and the citizens through consultative consensus building process. The inclusion of section 328 of the constitution speaks of the widespread reservations against unfettered governmental overreach amid calls for chastised political power. Amending the constitution to subvert a position vehemently rejected by the people of Zimbabwe barely 12 years ago is to throw the country back into the abyss of autocracy contrary to the winds of democracy.
In the event of a successful amendment of provisions such as sections 91(2), 92, 143(1) and 158, there is still an insurmountable task to amend section 328(7). It provides that an amendment to a term limit does not apply to a person who held or occupied that office any time before the amendment. Mr Mnangagwa and the current members of parliament cannot benefit from the amendment which only operates in futuristic terms. The principle of legality which implies that an amendment does not purport to grant rants with retrospective effect is thus affirmed.
Any exercise of legislative and executive authority beyond 2028 in the absence of an election would be a coup de tat and an act of treason.
Philani Lithandane Ndlovu writes in an individual capacity and the views expressed in this article are not attributed to any institutions to which he is affiliated.
Email address: philanilithandane@yahoo.co.uk /philanilithandane@gmail.com
Phone: +27 79 785 5500