Bill No 3 now rests with Parliament, not the courts

Parliament itself, in both the National Assembly and the Senate, had a lot to say and changes were made in both Houses to make the original Amendment Bill more acceptable and work better.

WITH public hearings and written submissions now complete, Constitutional Amendment Bill No 3 has now entered its decisive phase in Parliament. This is the only institution constitutionally empowered to debate, adopt, or reject the proposed amendments.

Contrary to claims circulating in some quarters, the courts cannot stop Parliament from considering a Bill that is properly before it. Judicial intervention only becomes relevant after Parliament has completed its work, and only when a litigant brings a matter before the courts through an application or declaratory order.

Once Parliament has voted, the Bill proceeds to the President, who may either assent to it or decline. Until that point, the courts have no authority to direct Parliament not to hear, debate, or process a Bill. Those who wished to influence the content of Bill No 3 had the full 90-day window provided for in the Constitution to make their submissions.

The only meaningful legal debate — at best an agenda-setting exercise — is whether any sections of Bill No 3 require a national referendum. The Law Society of Zimbabwe and a few commentators have argued that certain provisions fall under Section 328(7) of the Constitution. However, that position is not supported by the law.

The Constitutional Court’s landmark Max Mupungu ruling settled the distinction between term limits and length of service. The Court held that extending the length of service of a sitting judge does not amount to altering term limits and therefore does not trigger the referendum requirements of Section 328(7). This judgment overturned the High Court decision that had nullified the extension of Chief Justice Malaba’s tenure on the basis that a prescribed public officer could not benefit from such a change without a referendum.

Without the Max Mupungu judgment, the current Chief Justice, Justice Gwaunza, would have retired at 70 and would not have made history by becoming the first female Chief Justice at the age of 73.

The legal principle established in Max Mupungu is now binding law. It directly informs the current debate: adjusting the election cycle is not the same as altering presidential term limits. The Constitution, read together with the Max Mupungu judgment, treats these as separate concepts. As such, the argument that Bill No 3 requires one, or even two, referendums has no legal foundation. Any future court challenges premised on Section 328(7) are therefore unlikely to succeed.

Politically, the Bill is expected to pass comfortably. Every Member of Parliament has publicly supported it, reflecting the sentiment of the majority of Zimbabweans who participated in the consultation process. The real discussion going forward should focus on the legal precedent set by the Constitutional Court and its applicability to Bill No 3.