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MPs have no constitutional power to postpone elections or form GNU: Prof Madhuku

Constitutional law expert Professor Lovemore Madhuku has dismissed speculation about Zanu PF and the Citizens Coalition for Change (CCC) forming a government of national unity and postponing the 2028 elections to extend President Mnangagwaโ€™s term as unfounded.

Prof Madhuku stated that such a move would be legally impermissible under Zimbabweโ€™s constitution.

He also explained that President Mnangagwa cannot benefit from any constitutional amendments extending term limits, as Section 328(7) explicitly forbids the incumbent from profiting from such changes.

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โ€œThat theory of a GNU has been peddled over and over and it is based on a very wrong approach to politics and life,โ€ Prof Madhuku said during CITEโ€™s X Space discussion on the constitutional impact of the 2030 mantra held Wednesday evening, 

โ€œOur life is not dependent on parliamentarians and politicians. In politics there are various players. There is a player called people, there is a player called the Executive and a player called the Judiciary so in constitutional theory, players go beyond Parliament.โ€

Prof Madhuku underlined the constitution as a set of rules that governs parliament and the president as well, so politicians cannot come and say โ€˜they will postpone elections and have a government of national unity.โ€™

โ€œWhat rule or provision of the constitution will the MPs use for that purpose,โ€ he questioned, noting as things stand now, politicians have not told Zimbabweans which provisions of the current constitution they will use to give themselves an extended term. 

โ€œIf you are an MP elected for five years, you cannot say I want to give myself another two years. You canโ€™t do that, itโ€™s legally impermissible.โ€

Prof Madhuku said doing so would be unlawful unless the term extension was done via a coup, where everyone was made to submit.

โ€œPerhaps down the line if you submit to a coup eventually it becomes lawful but as the constitution stands Parliament has no legal powers to extend its own term,โ€ he said, adding should Parliament decide to amend the constitution to give itself power to extend their term, that amendment too would be unconstitutional.

He also explained that in constitutional theory, there is a doctrine  known as the โ€œessential features doctrine or the basic features doctrineโ€ where certain clauses are unamendable.

โ€œUnder the current constitution we will still test it, the judiciary must be called upon to answer the following questions: Do politicians have the power to amend every provision of the constitution ?โ€ Prof Madhuku said.

โ€œMPs are in transit, you were elected for five years. You do things within five years, you donโ€™t become a god when you are a president for five years or when you are an MP for five years, you remain limited by the constitution.โ€

Prof Madhuku also stressed that Zimbabweโ€™s constitution was โ€œveryโ€ clear that a person cannot be president or hold the office of president for more than two terms as provided for in Section 91(2).

He said extending the presidentโ€™s term or postponing elections would require amending several constitutional provisions, including Section 91(2), which limits the presidency to two terms, and Section 328(7), which prohibits a sitting president from benefiting from term-limit changes.

โ€œThe holding of elections every five years is provided for in the constitution, and you would have to amend it to change that. We do not know what those who are proposing that the president stay in office beyond two terms would want to amend,โ€ Prof Madhuku said.

For any amendments that would extend term limits or alter election schedules, a referendum would be necessary. 

โ€œOne of these provisions which require a referendum is the provision, which says the incumbent cannot benefit from any changes that you make to a term limit in the constitution,โ€ Prof Madhuku explained.

โ€œCurrent president Mnangagwa cannot go beyond two terms if we amend the constitution to allow more than two terms, he must not be able to benefit unless we first amend the provision that says he cannot benefit which is Section 328 (7) of the constitution.โ€

Prof Madhuku added there was also a standard procedure for having a referendum.

First, create a bill, a draft of how you want the law to look, and then publish it in the government gazette for 90 days.

During those 90 days, the public is supposed to debate the draft law and provide suggestions, either at public meetings or in written submissions to Parliament.

After 90 days, the Bill is tabled in Parliament, where it must be approved by a two-thirds majority of the whole membership.  

โ€œThis process must be done within three months of that Bill having been passed by the National Assembly and Senate. If the majority of people vote yes, the bill will be taken to the president,โ€ Prof Madhuku said.

Lulu Brenda Harris

Lulu Brenda Harris is a seasoned senior news reporter at CITE. Harris writes on politics, migration, health, education, environment, conservation and sustainable development. Her work has helped keep the public informed, promoting accountability and transparency in Zimbabwe.

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