Parliament may have created a constitutional loophole capable of allowing Zimbabwe to postpone general elections indefinitely, with human rights lawyer, Doug Coltart, warning that a little-noticed amendment in the Constitutional Amendment Bill No. 3 (CAB3) could delay elections indefinitely.
Coltart contends that the Senate’s repeal of Section 94(3) of the Constitution has eliminated the distinction between a President elected through a general election and one who assumes office following the resignation, death or removal of an incumbent.
In his view, that seemingly technical amendment could allow every new President sworn into office after a predecessor leaves office to begin an entirely new seven-year presidential and parliamentary term, effectively resetting Zimbabwe’s election calendar each time.
While stressing that this interpretation would almost certainly face legal challenge, Coltart argues the amendment creates a dangerous constitutional ambiguity that could be exploited to prevent Zimbabweans from returning to the polls indefinitely through successive presidential resignations and parliamentary appointments.
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“These changes essentially introduce a loophole which could be used to prevent us from ever having an election in Zimbabwe again,” Coltart said in a detailed legal analysis after Parliament approved the Senate amendments to CAB3.
“I understand that this sounds alarmist… but I’m going to try to explain it to you.”
While the government has not publicly accepted this interpretation, the issue has opened an entirely new constitutional debate about whether Parliament inadvertently, or deliberately, created an ambiguity that could totally change Zimbabwe’s electoral cycle.
To understand the controversy, Coltart’s argument is what appears to be a minor drafting amendment.
Section 94 of Zimbabwe’s Constitution governs how a President assumes office and before the proposed amendment, the Constitution recognised two separate situations.
Under Section 94(1), a President-elect who wins a national election is sworn into office.
Section 94(3), meanwhile, dealt with circumstances where someone assumes the presidency after the incumbent resigns, dies or is removed from office before completing a term.
To many observers, removing Section 94(3) may appear insignificant, however, Coltart argues it is anything like that.
“The main way that the Senate did this was by introducing an amendment repealing Section 94(3),” he said.
“It seems like no big deal. There doesn’t appear to be a massive difference between the two.”
According to Coltart, the significance only becomes apparent when Section 94 is read together with Section 143, which governs Parliament’s lifespan.
Section 143 matters because it provides that the life of Parliament begins when the President-elect assumes office in terms of Section 94(1).
That wording, Coltart argues, is deliberate.
“So what that means is that a new parliamentary term only runs when someone assumes office in terms of Section 94(1), that is where a President has been elected,” he explained.
“A new parliamentary term does not run where someone is sworn into office in terms of Section 94(3), that is where the former President has resigned, died or been removed from office.”
This distinction has historically allowed for continuity, that is if a President left office midway through a term, the successor merely completed the remainder of that term without restarting Zimbabwe’s electoral calendar.
However, according to Coltart, repealing Section 94(3) removes that distinction.
Once the separate procedure disappears, every future President would arguably be sworn in under Section 94(1), the same section used after a national election.
That, he says, is where the constitutional ambiguity begins.
“By removing Section 94(3), what Parliament has done is meant that the sole way in which someone can be sworn into office is now in terms of Section 94(1),” Coltart argues.
“The effect of that arguably and this is an interpretation, which we’re going to have to fight with everything within us, but arguably that then triggers a new parliamentary term in terms of Section 143 and rejigs the entire election cycle in terms of Section 158.”
Section 158 sets Zimbabwe’s election timetable and if a new parliamentary term begins every time a President assumes office under Section 94(1), Coltart argues that the constitutional election clock could effectively restart.
Coltart illustrates the concern through a hypothetical example.
He said if CAB3 becomes law and if the sitting President resigns before the scheduled 2030 elections, Parliament could elect a successor under the amended constitutional provisions.
If that successor is considered to have assumed office under Section 94(1), Coltart argues, a fresh parliamentary term would begin.
Instead of elections taking place in 2030, they could be pushed seven years forward.
“What this means is that you could have a scenario where the President resigns, CAB3 goes through, the President resigns and then is elected to a new seven-year term, meaning don’t speak of elections in 2030… we’re speaking of elections now in 2033,” Coltart said.
The process, Coltart said, could theoretically continue indefinitely.
“Now you get to 2033… the President simply resigns, Parliament elects whomever they choose, and that triggers a new seven-year cycle, meaning that we don’t go to elections.”
“And this could be repeated again and again and again… such that we never go to an election ever again.”
Coltart stressed this represents an interpretation arising from constitutional ambiguity rather than an explicit provision saying elections are abolished.
Nonetheless, he believes the ambiguity itself poses a significant constitutional danger because it could be relied upon by future office holders seeking to prolong power.
Coltart reserves his strongest criticism for Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi, whom he accused of misleading Parliament
During parliamentary debate, Ziyambi reportedly argued that Section 94(3) had become redundant following Constitutional Amendment Act No. 2, which altered Section 101 dealing with presidential succession.
Coltart rejected that explanation entirely, noting that Minister Ziyambi was right that there were changes made to Section 101, but was “absolutely wrong that Section 94(3) was made redundant.”
He argues that although Constitutional Amendment Act No. 2 changed who succeeds a President from the automatic succession of the Vice-President to a nominee chosen by the President’s political party, it did not eliminate the need for a separate constitutional mechanism governing how that nominee assumes office.
“There has been no election. Section 94(1) says that they would be sworn in on the ninth day after he or she is declared to be elected,” Coltart explained.
“Where there’s only been a nomination, there’s been no election. Clearly Section 94(1) would not apply.”
Instead, Coltart argued that Section 94(3) simply required updating to reflect the new succession procedure rather than it deleted altogether.
Coltart says Parliament had an opportunity to eliminate the ambiguity.
During debate, Dzivarasekwa MP Edwin Mushoriwa, sought wording that would explicitly state that anyone assuming office after a President’s resignation, death or removal would serve only the unexpired portion of that President’s term.
Read: https://cite.org.zw/who-leads-when-the-president-falls-cab3-debate-exposes-succession-uncertainty/
According to Coltart, that amendment would have closed the perceived loophole but Minister Ziyambi rejected it.
“He refused to have that amendment included. He did not respond to the very well-articulated argument… and essentially tried to pull the wool over everyone’s eyes,” Coltart said.
Coltart acknowledged that his interpretation is likely to face legal challenge and may ultimately be rejected by the courts.
He argues, however, that constitutional ambiguity itself is dangerous, particularly where fundamental democratic rights are concerned.
He added that any attempt to use the amendment to extend parliamentary terms would conflict with other constitutional provisions, including Section 67, which provides for political rights and the right to vote.
“So this is going to need to be fought on so many fronts. But it appears to me that this is what the intention was. I do believe that there are many Zanu PF members who were not aware that this is what was being pushed through, that the intention was essentially to take away the right to vote for all citizens and make that a discretion of Parliament as to whether to ever allow us to vote ever again,” Coltart said.
“I believe that this has been pushed through a subtle and very technical provision, which certainly is open to challenge, and we are going to have to challenge this to the last man and woman standing. But we, the citizens, need to be aware of what is going on and the constitutional coup that is underway in our country. This is all the more reason that the President absolutely should not put pen to paper on this bill.
If such an interpretation were ever adopted, Coltart believes it would alter Zimbabwe’s constitutional order and require approval through a national referendum rather than ordinary constitutional amendment.
He therefore urged President Emmerson Mnangagwa not to sign CAB3 into law.
“To do so would be the most shameful abrogation of his duty to uphold the Constitution,” Coltart said.
“I hope and pray that his conscience will speak to him and that he will not put pen to paper once this bill is sent to him. Once again, we reiterate that since this bill has been passed by Parliament, the law says it must go to a referendum within three months. If it goes straight to the President, that is unlawful. If the President signs it, that is unlawful and we, the citizens, must hold them to account.”
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