Response to Mr Nyambirai ‘s view of constitutional implications of Presidential term extension
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That’s an interesting legal argument put forward by Mr. Nyambirai, which centers on a specific interpretation of Sections 95 and 328 of the Zimbabwe Constitution.
However, from an analysis of the Constitution’s spirit, history, and the explicit drafting of the relevant provisions, his interpretation that a simple parliamentary insertion could extend the presidential term to seven years without a referendum and benefit the sitting president likely does not align with the intent of the legislators.
Here is an analysis of why Mr. Nyambirai’s argument is likely flawed, taking into account the history of term limits in Zimbabwe.
šæš¼ Analysis of Mr. Nyambirai’s Argument
- The Context: A Reaction to Unlimited Rule
Your observation about the historical background is crucial. The 2013 Constitution was drafted after decades under President Robert Mugabe, who held power for 37 years. A core principle of the new Constitution was to institutionalize democratic checks and balances, with firm term limits being a non-negotiable reaction against the past.
The legislators’ intent was unequivocally to limit presidential tenure. The idea that a simple “insertion” could bypass the term limit provisions was the very mischief they sought to prevent. - Analysis of Section 95: The “Escape Clause” Illusion
Mr. Nyambirai hinges his argument on the phrase in Section 95(2):
“And, except as otherwise provided in this Constitution, their terms of office are five years and coterminous with the life of Parliament.ā (Emphasis added)
He interprets the phrase “except as otherwise provided” as an open invitation for Parliament to insert a longer term (e.g., 7 years) without amending Section 95 itself.
The Legislative Intent: This phrase is most likely intended to account for transition provisions or specific, minor, non-substantive provisions elsewhere in the Constitution, not to create a major, easy-to-use escape hatch from the foundational five-year term limit. The default and primary rule, clearly stated, is five years. To change this rule for the highest office is a fundamental amendment. - Analysis of Section 328(7): The “Amendment to a Term Limit Provision”
This is the most significant counter-argument. Section 328(7) of the Constitution states:
“An amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
Mr. Nyambirai argues that inserting a new clause defining a 7-year term is not an “amendment to a term limit provision” but an “insertion to fill a gape or lacuna.”
The Flaw: This is a formalistic distinction that ignores the substance and effect of the change. A “term-limit provision” is any clause that dictates the duration or number of terms. Section 95(2) is clearly the primary term-limit provision on duration (5 years). Introducing a new clause that dictates “7 years” fundamentally changes the effect of the 5-year limit in Section 95 and thus functionally amends the term limit.
The Principle of Term-Limit Immunity: The purpose of Section 328(7) is to ring-fence the terms of the sitting president (and other officeholders) so they cannot benefit from amendments that extend tenure. Any mechanism designed to extend the term of the President from five years to seven years would be seen by a court as an “amendment to a term-limit provision” because its substance and effect is to extend the duration of the term, regardless of whether it is phrased as a “repeal,” “amendment,” or “insertion.” - The Need for a Referendum (Section 328(5))
While Mr. Nyambirai correctly notes that the Constitution does not require a referendum for every amendment, it does require one for amendments to the Declaration of Rights (Chapter 4).
The extension of presidential tenure is seen as a fundamental change to the political system and can be strongly argued to impact the right to free and fair elections and the fundamental principles of the Constitution laid out in Chapter 1, which are protected by the spirit of the document. While Section 328 may not explicitly require a referendum for Section 95 specifically, the magnitude of the proposed change (changing the fundamental term duration) is usually what triggers popular dissent and demands for a popular vote in such constitutional matters.
Mr. Nyambirai’s argument relies on a strict, literal, and highly narrow reading of the wording (“except as otherwise provided,” “amendment to a term limit provision”) to create a loophole.
The overwhelming legislative intent behind the 2013 Constitution was to prevent exactly this kind of tenure extension by the incumbent through parliamentary maneuvering. A court analyzing this proposal would likely adopt a purposive interpretation of the Constitution, concluding:
The 5-year term in Section 95(2) is the primary rule.
An insertion providing for a 7-year term constitutes an amendment to a term-limit provision in substance and effect.
Therefore, any such change would be prevented from applying to the sitting President by Section 328(7).
To truly implement a 7-year term that could benefit the incumbent, the government would likely need to amend Section 328(7) itselfāa move that would be seen as a direct attack on the foundational principles of the Constitution and the people’s will.
Edwell Maposa
LLB,LLM,LLD Doctoral Researcher
