Vital Steps for the Incumbent to Change the Two Term Limit

According to section 91(2) of the Constitution:

“A person is disqualified for election as President or appointment as Vice-President if he or she has already held office as President for two terms, whether continuous or not, and for the purpose of this subsection three or more years’ service is deemed to be a full term.”

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By the 2028, President Mnangagwa will have served two full terms, so he will not be eligible to stand for election as President or Vice-President. Therefore, the Constitution would have to be amended before the President can legally serve another term in office as President or Vice President.

Which provisions of the Constitution would need to be amended?

The first amendment would be to section 91, which as can be seen sets out the current presidential term-limit. The amendment would entail repealing section 91(2) (if the intention is to completely remove presidential term-limits) or changing the words “two terms” to “three terms, or however many terms a President will be allowed to serve (if it is decided to extend the number of terms rather than scrap the limits completely).

The steps needed to amend section 91 are set out in section 328 of the Constitution:

• The Speaker must publish “the precise terms” of the proposed amendment in the Gazette, and the amendment cannot be introduced in Parliament until 90 days after that publication [section 328(3)].
• The staff of Parliament must immediately invite the public to comment on the proposed amendment, through written submissions and public hearings convened by Parliament [section 328(4)]. In practice these hearings are convened by the Portfolio Committee on Justice, Legal and Parliamentary Affairs, and written submissions from the public are sent to that Committee.
• The Bill containing the amendment must be passed by a two-thirds majority at its final reading [i.e. the Third Reading] in both the National Assembly and the Senate, and when the Bill is sent to the President for assent the Speaker and presiding officer of the Senate must certify that it has received the requisite majorities [section 328(5) and (10) of the Constitution].

If these steps are taken, section 91 will be amended to allow a President to serve more than two terms in office.

There is a catch, however: the amendment will not apply to President Mnangagwa.

Section 328(7) of the Constitution

The reason why the above amendment would not apply to President Mnangagwa lies in section 382(7), which was designed to make it difficult for incumbent office-holders (particularly Presidents) to extend their terms of office. It states:

“Notwithstanding any other provision of this section, an amendment to a term-limit provision [Note: section 91(2) is 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.”

Put simply this means that an amendment to section 91 of the Constitution extending presidential term-limits will apply only to future Presidents. It will not allow an incumbent or past President to extend the period he may hold presidential office. So, if section 91 were amended by following the steps we outlined above, President Mnangagwa could not benefit from the amendment and could not legally be elected for a third term.

To enable him to be elected for a third term, section 328(7) itself would have to be amended or repealed. To do this, a Bill amending or repealing section 328(7) would have to go through all the steps we outlined above – the Bill would have to be published in the Gazette for 90 days, it would have to be passed by two-thirds majorities in the National Assembly and the Senate, and so on.

BUT after that, within three months after being passed, the Bill would have to be submitted to a national referendum and approved by a majority of the voters casting their votes. This is set out in section 328(9) of the Constitution.

Brief Procedure for Extending the Current President’s Term

To sum up the procedure that would have to be followed if it is decided that President Mnangagwa should be able to stand again for election, the following steps would have to be taken.

• A Bill amending both section 91 and section 328(7) of the Constitution would have to be published in the Gazette for at least 90 days.
• Parliament would have to invite public comments, written and verbal, on the proposed amendments.
• The Bill would have to be passed by two-thirds majorities at its final readings in both the National Assembly and the Senate.
• Within three months the Bill would have to be put to a referendum and passed by a majority of the voters who cast their votes.

Conclusion

The Constitution of Zimbabwe, 2013, makes it relatively easy to alter Presidential term-limits so long as one can muster two-thirds majorities in both Houses of Parliament, but makes it rather more difficult to extend those term-limits in order to benefit an incumbent President. This is not an accident – it was deliberate as we publicly heard on several occasions from the late Dr. Alex Magaisa.

Lenon Itai Rwizi is a Registered Legal Practitioner of the Superior Courts of Zimbabwe and can be contacted on: +263 774 159 146 or +263 713 967 341 lenonrwizi@gmail.com. The above does not constitute formal legal advice, and neither does not create any type of attorney-client relationship. Please seek legal advice from your own by contacting the writer https://www.facebook.com/profile.php?id=100057530166769 ) or any attorney of your choice.