Leader of the MDC and constitutional lawyer, Douglas Mwonzora, maintains that the Constitutional Amendment Bill No. 3 cannot lawfully be enacted without a referendum, insisting that even the reasoning advanced by Zanu PF officials ultimately leads to the same conclusion.
Mwonzora, one of the key negotiators and drafters of Zimbabwe’s 2013 Constitution, said the proposed amendments currently before Parliament affect constitutional provisions contained in the Bill of Rights and therefore require approval through a national referendum.
His remarks come as debate over the bill continues in Parliament, with supporters of the bill maintaining that legislators have the authority to pass the proposed changes without seeking direct approval from voters.
In an interview with CITE, Mwonzora said the argument advanced by Justice Minister Ziyambi Ziyambi and Zanu PF’s legal secretary Paul Mangwana, that CAB3 does not amend the Bill of Rights and therefore does not require a referendum, is flawed.
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“By the argument of Zanu PF, the bill has to be taken for a referendum,” he said.
“And there is another justification for the referendum, that is the second referendum. It is that where there is a need to extend the term limit, you must have a referendum. But where there is the need to benefit the incumbent, then you must have another referendum.”
Mwonzora said his position is based on the same constitutional interpretation used by supporters wanting the bill.
“A referendum is unavoidable and I am using Zanu PF’s own argument,” he said.
“Zanu PF says this bill cannot be taken to a referendum because it does not amend the Bill of Rights. Looking at that argument, we then look at whether this bill in any way affects the Bill of Rights.”
The Bill of Rights is contained in Sections 40 to 87 of Zimbabwe’s Constitution, placing Section 67, which deals with political rights, squarely within its scope.
“Section 67 contains what are called political rights and under Section 67 there are two important political rights, the right to vote and the right to be voted for,” Mwonzora said.
“Section 67 says under the right to vote, every Zimbabwean adult over the age of 18 has the right to vote. That means every Zimbabwean, irrespective of station in life, position, whether they are an MP or not, has the right to vote.”
Therefore provisions contained in CAB3 would effectively alter that right by restricting participation in the election of a President under certain circumstances.
“The amendment then goes on to say that the President is only going to be voted for by Members of Parliament, which means that provision has now been effectively amended, and it has been amended by implication,” Mwonzora said.
He noted the practical effect of the proposed amendment would be to qualify an otherwise universal right because it will now be possibly read as follows: “‘every Zimbabwean has the right to vote, provided that if it is a presidential election then only Members of Parliament are allowed to vote,’”
“So Section 67 has been amended by implication and by the argument of Zanu PF, by their own argument, then it has to be taken for a referendum.”
Beyond the issue of political rights, Mwonzora argued that CAB3 also runs into constitutional hurdles relating to term limits and provisions governing incumbents.
He cited Section 328(7) of the Constitution, which was specifically designed to prevent office holders from benefiting from constitutional amendments extending their terms of office.
“In fact, in terms of the Constitution, where there is an extension of term, so assuming that the referendum for extension of term succeeds, the Constitution says that extension cannot benefit the incumbent,” Mwonzora said.
“Now, if you want the extension to benefit the incumbent, then you have to amend Section 328 (7).”
The Constitution imposes a higher threshold for any attempt to amend that safeguard. Mwonzora added.
“Section 328 (7) says if there is any need to extend the period of time that a person holds office and if there is need for the incumbent benefits, then this must be done as if you are amending the Bill of Rights,” he said.
“We all know the Bill of Rights is amended by referendum. So Section 328 is also amended only by referendum.”
Mwonzora argued this makes it impossible for Parliament to lawfully bypass a referendum.
“So they cannot avoid a referendum at all, looking at even their own arguments,” he said.
Even if Zanu PF supporters insist Parliament has the constitutional authority to amend the Constitution without consulting voters in this instance, Mwonzora said such arguments overlook a key constitutional provision governing Parliament’s powers.
“They are not looking at Section 117 of the Constitution. Section 117 says that Parliament has the power to amend this Constitution only in terms of Section 328.”
He argued that Parliament’s authority is therefore not unlimited and must be exercised strictly within the procedures prescribed by Section 328.
“The powers of Parliament are given somewhere around Section 117 and Section 117 says that Parliament has the power to amend the Constitution only in terms of Section 328,” he said.
“And Section 328 provides that if it is the Bill of Rights then it has to be a referendum.”
Mwonzora further contended that CAB3 suffers from another legal defect because it combines several distinct constitutional issues into a single amendment bill.
He explained that Zimbabwe’s Constitution does not permit provisions extending terms of office and provisions allowing incumbents to benefit from those extensions to be dealt with in the same amendment process.
“They cannot afford two referendums but they also have another problem,” Mwonzora said.
“The Constitution clearly says the amendment to change the term limit and the amendment allowing the incumbent to benefit cannot be in the same amendment. The provisions cannot be in the same bill.”
He noted the current bill contains multiple clauses dealing with extensions of terms for the President and Members of Parliament, as well as provisions relating to who benefits from those extensions.
“We have four clauses that deal with extension of time, extension of time for President, extension of time for Members of Parliament, and then extension of term for benefit by the President and benefit by Members of Parliament and that makes the bill inherently illegal,” Mwonzora said.
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