A leading legal scholar has accused the Attorney General’s Office of publishing “mischievous and misleading” information to facilitate the extension of President Emmerson Mnangagwa’s term of office without a referendum in order to push ahead with the Constitution of Zimbabwe Amendment Bill (No. 3), 2026.
During a debate on CITE’s X Space discussion on the proposed amendments, on Thursday, Dr Justice Mavedzenge, a comparative constitutional law scholar and international human rights lawyer, accused the Attorney General’s Office of distorting constitutional provisions in order to justify extending the President’s term of office without a referendum.
He questioned whether the Attorney General, Virginia Mabiza, is either afraid to tell the President the truth or actively complicit in what he termed “sinister plans to subvert the Constitution.”
“On Wednesday the Attorney General’s Office published what I consider to be a mischievous and misleading flyer, which says the only term limit provision for the President is Section 95(2),” he said.
The flyer, according to Mavedzenge, sought to advance the argument that Section 91(2), which disqualifies a person from election as President after serving two terms, is the sole term limit clause, thereby implying that amending Section 95 would not trigger the referendum requirement under Section 328(7).
“I can understand when persons without basic legal knowledge fail to make a connection between Section 91(2) and Section 95,” he said.
“But I struggle to understand how a whole Attorney General’s office can miss this.”
Section 91(2) provides 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.”
Section 95, titled Term of office of President and Vice-Presidents, stipulates that the President’s term is five years and coterminous with the life of Parliament.
Dr Mavedzenge said the relationship between the two sections is straightforward, as Section 95 defines the five-year tenure, while Section 91 builds upon that structure by limiting the number of such terms to two.
His concern, however, went beyond textual interpretation.
“It has left me with two questions, and I’m sure that those are the questions that other Zimbabweans would also have,” he said.
“Is the Attorney General afraid of telling the President the truth that the term limit provision is primarily Section 95(2) as per the Constitutional Court’s decision? Or is the Attorney General complicit in these sinister plans to subvert the Constitution?”
A significant portion of Mavedzenge’s presentation focused on what he said were deliberate attempts to mischaracterise the Constitutional Court’s ruling in Max Mupungu versus the Minister of Justice.
“A lot has been said about this decision. Part of what has been said is to mislead the people who actually are the owners of this Constitution. The owners of this Constitution are not Zanu PF, it’s not me, it’s not any of the politicians,” he said.
Some proponents of the amendment, he said, argue that the Constitutional Court’s remarks identifying Section 95 as a term limit provision were merely obiter dicta – non-binding comments.
“Let’s break this down. Obiter dicta is a Latin term which refers to comments or observations that are included in a judge’s ruling. Those comments are not essential to the decision and as a result, they are not legally binding.”
However, Dr Mavedzenge insisted that the court’s distinction between age limits and term limits in the Max Mupungu case was central, not incidental, to its reasoning.
In that matter, the Constitutional Court was asked to determine whether extending the retirement age of the Chief Justice from 70 to 75 constituted an impermissible amendment to a term limit provision.
“The court drew a distinction between age limit provisions on one hand and term limit provisions on the other hand,” Dr Mavedzenge explained.
“Age limit provisions are those clauses which limit the oldest age at which one can occupy an office, while term limit provisions are clauses which limit the length of time one can occupy an office.”
He said the distinction was foundational to the court’s ruling.
“In making this distinction, the court did not just make a passing comment or a mere suggestion. It made a binding ruling which simply says: you can change age limit provisions, but you cannot touch term limit provisions without seeking the approval of Zimbabweans.”
The legal expert said the argument that the court’s comments were non-binding collapses under scrutiny.
“The whole argument in that court application was centred around the distinction between age limit and term limits. The decision of the court turned on that distinction,” he said.
“And then someone wakes up from somewhere and says, ‘no, the court was just making suggestions. It was all obiter dicta.’ Listen, I can understand if this is coming from a first year student of law. But I worry when I hear that coming from someone who is at the level of a minister or a former minister who has dealt with the law.”
Dr Mavedzenge further cited the emphatic language used by the Constitutional Court.
“Let me quote it verbatim,” he said. “The court said, ‘as is self-evident, the tenure of all of the aforementioned public office, including the President, is undoubtedly subject to term limit provision within the meaning of Section 328(1) of the Constitution.’”
“When the court says something is undoubtedly, that is no longer a suggestion,” he added.
Drawing a simple analogy, he said: “If your mother says to you, ‘you must never eat food from our neighbours,’ do you think your parent is making a suggestion? Law does not work like that.”
He also dismissed claims that the judgment reflected the views of a single “excitable” judge.
“When you read the judgment, you will see that there are two judges who led the writing of the judgment, Justice Rita Makarau and Justice Bharat Patel,” he said.
“At the end of the judgment, there are five other judges who signed that judgment to demonstrate that they associate with the views and findings in that judgment. And none of them wrote a dissenting judgment.”
He contrasted this with the 2017 case of Jealous Mawarire versus President of Zimbabwe, involving former President Robert Mugabe, where some judges issued separate opinions clarifying areas of disagreement.
“In the Max Mupungu decision, there is no dissenting judgment. All of them in the Constitutional Court associated with the findings,” Dr Mavedzenge said.
“To now say it was one judge, or that it was harmless for what the government is planning, is simply not correct. The court has already taken a position on this matter.”
He warned that any reversal of that position would damage the court’s credibility.
“It would send a message to Zimbabweans and to the whole world that this court makes decisions depending on who is before it, as opposed to depending on which issues have been pleaded.”
Dr Mavedzenge concluded by situating the legal debate within its broader political context.
“This constitutional amendment does not make sense politically because the Constitution is the legal basis for a social contract between the people and their government,” he said.
“The President and Members of Parliament were elected on the basis that they would serve for a maximum of five years. That is the basis on which they were elected. Section 95, you can’t run away from it because that’s what it says.”
He argued that if elected officials believe their performance warrants more time in office, they must seek fresh consent from the electorate.
“It only makes sense that those Members of Parliament and the President should go back to the people and ask for an extension of their term if they think they are doing a good job,” Dr Mavedzenge said.
“This is why you have Section 328(7) in the Constitution. It is there precisely to avoid situations where people are elected into office on the understanding that they will spend five years, and then while they are inside, they abuse the power of incumbency to extend their time in office without going back to the people.”
Quoting another analogy that was offered by one MP, Dr Mavedzenge said:
“You hire an employee to serve for a period of a year, and towards the end of the year, that employee decides to extend their own contract because they think they are doing a good job. That captures the essence of what we are dealing with right now.”
Dr Mavedzenge ended with a direct challenge to the Bill’s pushers.
“If you are trying to deal with electoral toxicity and you are well-meaning for Zimbabweans, why are you so afraid of going to a referendum?”
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