Why a referendum on CAB3 is unavoidable

By Senator Douglas Togaraseyi Mwonzora

It is no longer debatable that the ZANU PF faction championing the current attempts to amend the constitution wants to avoid a referendum at all costs. While they argue that a referendum is unnecessary under the current constitution, the real reason is the certainty of defeat by Zimbabweans in the referendum.

Minister Ziyambi Ziyambi and Hon. Munyaradzi Paul Mangwana argue that there is no need to subject the Bill to referendum because it does not amend the Bill of Rights. What that means is that they agree that if the amendment were to amend the Bill of Rights, then a referendum will be necessary.

In terms of section 328(6), a constitutional bill that seeks to amend the Bill of Rights must be subjected to a referendum within three (3) months after it has received a vote of 2/3 majority in both Houses of Parliament. Only where the majority of voters in the referendum approve of it, will it be submitted to the President to be signed into law.

Now, the question is whether this amendment seeks to amends the Bill of Rights or not? It is important to note that an amendment can be made in two ways. One is expressly and the other by implication.

Our Bill of Rights starts from Section 48 and ends with Section 87 of the constitution. Needless to say therefore that Section 67 is within the Bill of Rights. Section 67 starts by giving every Zimbabwean citizen the right to free, fair and regular elections for any elective public office. The presidency is an elective public office. The right to elect is not confined to any group of individuals, but to every Zimbabwean.

Section 67 goes on to provide that every Zimbabwean citizen above the age of 18 has the right to vote in allelections and referendums and does so in secret. For the sake of completeness, this right is given to every adult Zimbabwean and not only to Zimbabweans holding a particular office.

The current Bill however, provides that the President will only be elected by members of Parliament. Therefore, by confining voters for president only to Members of Parliament, the amendment has changed the provision that every adult Zimbabwean has the right to vote for the President. In other words, the law has been changed to read thus, “every Zimbabwean has the right to vote for any elective public office, provided that when it comes to the election of President only those Zimbabweans who are Members of Parliament shall have the right to vote”.

This, by implication, fundamentally changes the law (Bill of rights) as contained in Section 67 of the constitution. By the very argument of Zanu PF, Mangwana and Ziyambi, the Bill must be subjected to referendum because it amends the Bill of Rights.

The constitution provides in Section 328(7) that, if there is an amendment, “the effect of which is to extend the length of time that a person may hold or occupy any public office”, then the incumbent shall not benefit from the extension. It is not in dispute that the amendment seeks to change the length of time of the current President and the Parliament from 5 years to 7 years.

The amendment also seeks to make the current President and Parliament to benefit from the extension. Therefore, the proposed amendment seeks to amend Section 328(7) by implication when it comes to the current President and the current Members of Parliament. That change requires a referendum, because in terms of Section 328(9), when amending the section, it must be amended using the same procedures as in the Bill of Rights. That means it has to be subjected to referendum.

There is also a final problem with the current Bill that it contains both an extension clause and a clause requiring the incumbents to benefit from such extension in the same Bill. However, the constitution says in Section 328(9) that the two amendments cannot be put in the same Bill. That makes the amendment inherently illegal.

Therefore, by their own arguments, Minister Ziyambi and Zanu PF cannot avoid a referendum on the Bill as it currently stands. If the referendum on the extension from 5 years to 7 years succeeds, then there has to be a second referendum if the current President and Members of Parliament are to benefit.