The ghosts of a controversial 2021 constitutional amendment resurfaced in Parliament this week as opposition legislators warned that proposed changes under the Constitutional Amendment Bill No. 3 (CAB3) could create a dangerous constitutional loophole over presidential succession, potentially plunging Zimbabwe into a constitutional crisis if a sitting President dies, resigns or is removed from office.
However, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi dismissed the concerns, insisting that CAB3 merely removes outdated constitutional provisions that no longer have any legal effect.
The debate centred on Clause 4 of CAB3, which repeals Section 94(3) of Zimbabwe’s Constitution.
Opposition MPs argued that instead of correcting a legal gap created by the previous Constitutional Amendment No. 2 Act of 2021, CAB3 risks deepening uncertainty over presidential succession by removing the only provision that explicitly sets out how a Vice-President assumes office after the death, resignation or removal of a President.
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Section 94(3) of the Constitution, inserted through Section 6 of Constitutional Amendment No. 2, provides that:
“A Vice-President who becomes President on the death, resignation or removal from office of the President assumes office when he or she takes, before the Chief Justice or the next most senior judge available, the oath of President in the form set out in the Third Schedule, which oath he or she must take as soon as possible and, in any event, within forty-eight hours after the office of President became vacant.”
Dzivarasekwa MP Edwin Mushoriwa urged Parliament to retain Section 94(3) of the Constitution, arguing the country could not afford any uncertainty or vacuum in the presidency.
“I believe whenever there is a vacancy in the office of the President, a country cannot afford not to have a President,” Mushoriwa told Parliament.
“The Vice President should take an oath for that time frame, even if it means one week, because he or she is going to occupy the office of the President.”
He argued that taking the presidential oath was not merely ceremonial but a constitutional requirement before anyone could lawfully exercise presidential authority.
“The oath of office is a constitutional prerequisite for the lawful exercise of the presidential powers. It is not a mere formality but a constitutional commitment to uphold and defend the constitution,” he said.
Mushoriwa warned removing the provision could cast doubt over the legitimacy of decisions made by someone exercising presidential authority without first taking the oath.
“What we are saying is that if a person is in that office without taking an oath, we are literally undermining the decisions. Zimbabwe needs to have confidence in the office of the President.”
Legislator for Hwange Central, Daniel Molokela also argued the current amendment was evidence Parliament had failed to adequately deal with presidential succession when it passed Amendment No. 2.
“I need to raise a point of concern. During the debate of the Constitutional Amendment Bill (No. 2), I was concerned about the decision to remove Section 92 of the Constitution,” Molokela said.
“The decision to remove it was not in the best interest of this country, especially from a security point of view.”
Although Minister Ziyambi initially objected, saying Parliament could not reopen debates on constitutional amendments passed years earlier, Molokela maintained the current Bill was a direct consequence of those earlier changes.
“We are dealing with a legal lacuna that was created by a short-term decision of removing Section 92 in the original 2013 Constitution under the Second Amendment Bill. Trying to address it using processes is going to be still inadequate,” he said.
Molokela argued Amendment No. 2 removed the constitutional provision that allowed a vice president to automatically assume the presidency without putting in place sufficient safeguards for presidential succession.
“The real reason we did that was to protect the national security and integrity of this country,” he said.
Instead, he warned, the new framework could create uncertainty during a vacancy in the presidency.
“This could lead to a constitutional crisis that could lead to national political instability and insecurity.”
He also questioned the powers that an acting president would wield before Parliament elects a substantive president.
“What if the last acting vice president decides to say, ‘I want to be the president of this country?’ What will you do about it in Parliament? What if he dissolves Parliament? You will be dissolved as parliamentarians by an acting president who has not even been sworn in,” Molokela argued.
Responding, Minister Ziyambi dismissed both legislators’ concerns, insisting that Parliament was not changing the law on presidential succession but simply deleting constitutional provisions that had already become redundant following Amendment No. 2.
“Hon. Mushoriwa does not understand what we are doing here. This clause is no longer effective,” Ziyambi said.
“When we did Amendment No. 2, we removed this. This is a cleaning-up exercise.”
Watch: https://x.com/nickmangwana/status/2071952506708529627/video/1
He said the Constitution no longer provides for the automatic elevation of a vice president to the presidency following a vacancy, making the oath requirement irrelevant.
“When there is a vacancy, you do not swear in somebody to act. There is a provision in the Constitution for an acting president pending the election of another president. An acting president does not take an oath of office as if he or she is the actual president,” Ziyambi said.
Ziyambi said Amendment No. 2 had fundamentally altered the succession process by requiring parliament to elect a new president within 30 days of a vacancy.
“When Parliament passed Amendment No. 2 in 2021, it removed the automatic elevation of a vice president upon there being a vacancy in the office of the president. This Bill now provides that upon such a vacancy, Parliament elects a new president within 30 days,” Ziyambi said.
“The old subsection therefore has no further work to do and is accordingly removed so that the Constitution does not continue to carry a provision the law has already left behind.”
Ziyambi maintained that opposition legislators were conflating the roles of an acting president and a substantive president.
“We must read Section 94 the way it is written. It says a vice president who becomes a president, not acting. We no longer have a vice president who becomes the president automatically. We are simply deleting what is no longer relevant. Whether you argue whether what we did was correct or not is neither here nor there,” he said.
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