President Emmerson Mnangagwa continues to be urged by members of his Zanu PF party to hang on to power after his current term of office expires in 2028.
This despite the fact that he will have served two five-year terms in office and section 91(2) of the constitution disqualifies a person from being elected as president if he or she has already served two terms.
Mnangagwa himself has said he is a constitutionalist and will abide by the constitution, but now, according to reports, Justice minister Ziyambi Ziyambi is preparing a bill to amend the constitution to allow the president to serve beyond 2028.
What would that bill be like?
The provisions of the constitution that would have to be amended
To allow the president to serve in office after 2028, the following constitutional provisions will have to be amended:
Section 91(2)
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As we have already mentioned, this section limits presidents to two terms. It reads as follows: “(2) A person is disqualified for election as president or appointment as vice-president if he or she has already held office as president under this constitution 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.”
Since Mnangagwa will have served two five-year terms by 2028, this section will obviously have to be amended if he is to be allowed to serve any longer.
Section 95(2)
It has been suggested that one way to allow the president to serve after 2028 would be to extend the presidential terms of office from the current five years to seven years or to some longer period. This would entail amending section 95(2), which fixes the current five-year term. It reads:
“(2) The term of office of the 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, his or her terms of office are five years and coterminous with the life of Parliament.”
Section 328(7)
Section 328 of the constitution, which lays down the procedure to be followed when amending the constitution, will have to be amended if Mnangagwa is to be allowed to serve beyond 2028.
This is because sections 91(2) and 95(2) are “term-limit provisions” as defined in section 328(1):
““term-limit provision” means a provision of this constitution which limits the length of time that a person may hold or occupy a public office.”
And section 328(7) goes on to say:
“(7) Notwithstanding any other provision of this section, 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.”
What this means is that if the constitution is amended to extend the length of time a person may hold a constitutional office (such as the office of president), the amendment will not apply to anyone who has held or currently holds that office.
Obviously, therefore, if an extension of the presidential term-limit is to benefit Mnangagwa, section 328(7) will have to be amended or repealed.
And here lies a possible problem, because it is difficult to amend section 328(7), which is entrenched against easy amendment.
Procedure for amending the constitution
As we have said, section 328 lays down the procedure for amending the constitution. For most amendments the procedure is as follows:
- The speaker of Parliament 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)].
- 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 [section 328(5) of the constitution].
That is the procedure to be followed for “ordinary” constitutional amendments. To amend entrenched provisions such as section 328(7), however, an additional step is required:
- Within three months after being passed by a two-thirds majority in the two Houses of Parliament, the amendment bill must be submitted to a national referendum, and cannot be enacted into law unless it is approved by a majority of voters voting at the referendum [section 328(6) of the constitution].
[Note: incidentally that under section 155 of the Constitution all registered voters must be allowed to vote at a referendum, so it is not possible to conduct a sample survey of voters and pass it off as a referendum.]
As we have said, section 328(7), which prevents incumbent presidents like Mnangagwa benefiting from an extension of presidential term limits, is an entrenched provision: see section 328(9) of the constitution.
Hence, if Mnangagwa’s term is to be extended beyond 2028, section 328(7) will have to be amended and the amendment will have to be approved by voters in a national referendum after it has been passed by Parliament.
Can the requirement for a referendum be circumvented?
Heads of state have tried many ingenious schemes to get round constitutional limits on their terms of office.
In Argentina many years ago, former president Juan Peron extended his term by getting his wife Evita elected as president and ruling through her.
In Russia, President Vladmir Putin was faced with a limit on the number of continuous years he could serve as president, so he swapped places with his deputy Dmitry Medvedev and ruled through him for a term before resuming the presidency.
There are endless ingenious tricks to circumvent term limits.
All we can say is that the constitution has entrenched term limits and has tried to anticipate some of the ruses that incumbents might use to stay in office:
- Section 91(2), which we quoted earlier, expressly prevents anyone trying Putin’s trick of interrupting his continuous tenure by acting as vice-president for a term (the section prohibits a person standing for office as president if he or she has served two terms “whether continuous or not”).
- The section also prevents a president from resigning a month or two before the end of his or her second term in office and then claiming that he or she had not served two full terms (the section says that two or more years’ service counts as a full term).
- Section 328(7) makes a referendum mandatory for any amendment to a term-limit provision which “has the effect” of extending an incumbent’s term of office.
So even if an amendment does not expressly amend a term-limit provision, it will have to be put to a referendum if it has the effect of allowing an incumbent to remain in office.
We might add that any constitutional amendment that seeks to extend the president’s term without the need for a referendum would violate an important value entrenched in the constitution, namely that term limits cannot be extended so as to benefit incumbent office-holders.
On that ground alone, the amendment should be regarded as unconstitutional.
Importance of term limits
There is good reason for the constitution to be protective of term limits.
They are an important democratic check on the abuse of executive power, and this has been recognised since the days of ancient Rome when consuls held office for one year only.
Presidential term limits are particularly important when the president is both head of state and head of government, as is the case in Zimbabwe.
Here are some of the reasons:
n They encourage the peaceful transfer of presidential power
Where there are term limits, and they are respected, the transfer of presidential power becomes a natural event in the orderly business of government.
If political opponents are reasonably confident that a president will step down after a fixed term, they are less likely to resort to violence to force him or her to relinquish power.
This promotes stability, which in turn promotes economic progress and development.
n They prevent undue concentration of power
The longer presidents stay in power, the more they tend to concentrate power in their own hands or in the hands of their family and cronies.
This encourages corruption, which is inimical to good governance, human rights and economic progress.
n They encourage the emergence of new leaders
Presidents who remain in office indefinitely block the next generation of leaders.
This happened in Zimbabwe under former president Robert Mugabe, who was head of government for nearly 40 years.
n Term limits, if respected, ensure that new leaders come to the fore and bring fresh ideas to government.
n They create a level playing field during elections
In an election to replace a president who must step down after serving a full term or terms, none of the candidates enjoy the benefits of incumbency, such as using state resources for electioneering.
n They encourage respect for the rule of law and human rights
If presidents know that their time in office will come to an end within a relatively short period, they are likely to respect the law and moderate their conduct so as to avoid retribution when they cease to hold office.
They are more likely to treat colleagues and even political opponents with respect if they know that in a few years’ time those colleagues or opponents may be occupying their office.
Conclusion
Constitutional term limits, particularly presidential ones, are so important that they should not be tampered with.
If they are to be changed, and if the changes are to apply to the incumbent president, then the constitution must be followed strictly – a referendum must be held.
Any attempt to get round that requirement, any ingenious device to allow the president to remain in office after his current term has ended, will subvert the constitution and the democratic values enshrined in it.
