Popular Bulawayo Activist, Mlungisi Dube, has stated that in his opinion, Mnangagwa can go for a third term without going for a rerferendum.
Here is a summary of his key points:
- Focus is on Term Duration, not Number of Terms: He is focusing on the length of a single presidential term, not the number of terms allowed (which is covered by Section 91, and he dismisses it as not relevant to his point).
- Interpretation of Section 95: He interprets Section 95, which states the term is five years “except as otherwise provided in this Constitution,” as an acknowledgement that another provision could set a different term length.
- Insertion vs. Amendment: He argues that Parliament could insert a new clause stating, “A Presidential term shall be 7, 8, or 10 years,” rather than amending Section 95.
- Avoiding the Referendum Requirement: He contends that this insertion would not be “an amendment to a term limit provision” under Section 328(7) because it’s filling a gap (a “lacuna”), and therefore, a national referendum would not be required.
- Sitting President Can Benefit: He concludes that such an insertion would not fall foul of the law prohibiting a sitting President from benefiting from an amendment to a term limit provision, meaning the current President could benefit from the new seven-year term.
Dube quoted Tawanda Nyambirai who said in Summary
Tawanda Nyambirai is arguing that the Zimbabwe Constitution, specifically Sections 91, 95, and 328, has a loophole that would allow Parliament (specifically Zanu PF, with a two-thirds majority) to introduce a seven-year presidential term without needing a national referendum, and that the sitting President could benefit from it.
Here is a summary of his legal reasoning:
- Sections 91, 95, and 328: He limits his analysis to these three sections.
- Focus on Term Duration, not Number of Terms (Section 91): He states Section 91 deals with the number of terms a person can serve, not the duration of a single term, and therefore is not relevant to his argument.
- Interpretation of Section 95: He highlights the wording in Section 95(2) which says presidential terms are five years, “And, except as otherwise provided in this Constitution,” and argues this phrase means the Constitution allows for another provision elsewhere to set a different term length.
- Insertion vs. Amendment (Section 328): He claims Parliament could insert a new clause (e.g., “A Presidential term shall be 7, 8, or 10 years”) into the Constitution to fill what he calls a “gape or lacuna” (gap) without directly amending Section 95.
- No Referendum Required: By characterizing it as an “insertion” and not an “amendment to a term limit provision,” he argues that the insertion would not fall foul of Section 328(7), which requires a referendum for certain term limit amendments.
- Sitting President Can Benefit: He concludes that because this would not be an amendment to a term limit provision, there is nothing to stop the sitting President (Emmerson Mnangagwa) from benefiting from the new seven-year term.
Here is Mlungisi Dube’s full post
“@matigary @Jamwanda2 @gift_mugano @ProfJNMoyo @adv_fulcrum @advocatemahere @ProfMadhuku @tino_chinyoka1 Sections 91, 95, and 328 of the Zimbabwe Constitution do not require a referendum to introduce a 7 year Presidential term and do not prohibit a sitting President from benefiting from the 7 year term!!! Law is still my passion. But I have not practiced it in a long time. So, rather than make submissions on the whole Constitution, I will limit my submissions to Sections 91, 95 and 328.
Much has been written about Section 91. It deals with the number of terms and not the duration of a single term. My concern is the duration of a single term. Therefore I will not say more about Section 91. Section 95 appears to acknowledge that there is or could be another provision elsewhere that sets out Presidential terms. The 5 year term limit seems to only apply in the absence of another provision to the contrary elsewhere in the Constitution. It (Section 95) says in subsection 2:
“2) The term of office of the President or a Vice‑President extends until— (a) he or she resigns or is removed from office; or (b) following an election, he or she is declared to be re‑elected or a new President is declared to be elected; And, except as otherwise provided in this Constitution, their terms of office are five years and coterminous with the life of Parliament.”
If this is correct, there is nothing to stop Zanu PF through Parliament, and without referendum, from introducing a new constitutional provision providing for Presidential term limits other than the 5 year Limit. Put differently, there is nothing to stop Parliament, with the necessary majority, from introducing a clause that says, “A Presidential term shall be 7, 8, or 10 years”. Such a provision would not amend Section 95 (assuming it is the only section that provides for a Presidential term limit of 5 years). Such an insertion would apply to the sitting President without falling foul of Section 328(7) because the insertion will not be “an amendment to a term limit provision “. It will simply be an insertion to fill a gape or lacuna in the constitution.
It appears the drafters of the constitution did not themselves know the duration of the term of office they wanted. If they wanted a five year term, it must have been very easy to just say that, “The duration of a Presidential term shall be 5 years”rather than frame Section 95 the way they did.
I am not advocating for an amendment of the constitution. I am merely pointing out that there appears to be nothing stopping Zanu PF through Parliament from inserting a 7 year Presidential term provision in the Constitution without amending or contradicting section 95, and that there is nothing to Stop President Mnangagwa from benefiting from such an insertion.”
