Constitutional Court Application: Summary of Key Arguments
The Core Issue
The Applicant argues that Parliament has attempted an unconstitutional end-run around Section 328(7). The Constitution states that term-limit extensions cannot apply to current office-holders. But Parliament inserted “notwithstanding” clauses into the new Amendment Act to give those office-holders exactly that benefit—in direct contradiction to the Constitution.
This is not about policy preference. It is about constitutional competence: Parliament cannot amend the Constitution in a way that violates the very provision that governs its amending power. If this device is allowed, constitutional supremacy becomes meaningless—future Parliaments could override any constitutional limit through creative drafting.
What This Case Is About
Applicant: Prince Dubeko Sibanda (former legislator and legal practitioner)
Target: Constitution of Zimbabwe Amendment Act No. 6 of 2026
Challenged Provisions: Sections 5(b) and 10(b)—which extend presidential and parliamentary terms from 5 to 7 years
The Core Legal Arguments
1. Section 328(7) Has Been Violated
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Section 328(7) expressly prohibits term-limit extensions from applying to office-holders who were already in office before the amendment
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The Amendment Act inserts provisions saying they apply “Notwithstanding section 328(7)”
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This is a direct attempt to override a constitutional prohibition
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This violates Section 2 (Constitutional Supremacy)
2. Parliament Exceeded Its Amending Power
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Section 117(2)(a): Parliament may amend the Constitution only in accordance with Section 328
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Section 328(7) is a substantive limitation, not just a procedure
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“Notwithstanding” language cannot bypass constitutional constraints
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If allowed, Parliament could override other protections (two-thirds requirements, referendums, etc.)
3. Specific Provisions Challenged
| Provision | What It Does | Why It’s Invalid |
|---|---|---|
| Section 5(b) | Inserts s 95(2a): Applies 7-year presidential term to current President “Notwithstanding s 328(7)” | Gives current President a benefit explicitly prohibited by s 328(7) |
| Section 10(b) | Inserts s 143(2a): Applies 7-year parliamentary term to current Parliament “Notwithstanding s 328(7)” | Extends tenure of current MPs without electoral renewal |
4. Substance Over Form
The Amendment Act tries to disguise the benefit to incumbents by referring to “continuation in office of the Senate and National Assembly” rather than “members.” But:
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Houses act through their members
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The practical effect is the same: extending current MPs’ tenure
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Constitutional prohibitions cannot be defeated by linguistic maneuvering
5. The Case Is Now Ready for Decision
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A previous application (CCZ 17/26) was dismissed because the provisions were still in a Bill (not yet law)
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The Court said the dispute had not yet “crystallized”
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The Bill is now Act No. 6 of 2026—the dispute is now ripe for determination
6. Parliament Failed Its Constitutional Obligations
Parliament breached multiple constitutional duties:
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Failed to amend only in accordance with s 328
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Failed to protect the Constitution as required by s 119
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Failed to perform obligations diligently as required by s 324
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Enacted provisions that expressly reject constitutional limits
7. The “Gateway” Argument
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Section 328 is the constitutional gateway through which all amendments must pass
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Parliament cannot amend the gate by climbing over the wall (inserting “notwithstanding” clauses)
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If Parliament wants to change how s 328(7) operates, it must follow the special procedure for Chapter 4 amendments under s 328(9)
What the Applicant Is Asking For
The Court is asked to:
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Declare that Parliament failed its constitutional obligations
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Strike down only sections 5(b) and 10(b) (and the resulting s 95(2a) and s 143(2a))
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Declare that the 7-year term extension does not apply to:
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The current President (or anyone who held office before the amendment)
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The current Senate and National Assembly (or current members)
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No order as to costs
Key Constitutional Provisions
| Section | Content |
|---|---|
| s 2 | Constitution is supreme; any inconsistent law is invalid |
| s 117(2)(a) | Parliament’s amending power is only in accordance with s 328 |
| s 119 | Parliament must protect the Constitution |
| s 324 | Constitutional obligations must be performed diligently |
| s 328(7) | Term-limit extensions do NOT apply to incumbents |
| s 328(9) | Section 328 itself is entrenched—requires special amendment procedure |
Additional Context
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