CAA3 challenge doomed from the start

Ozias Gwizi

FOR weeks, Zimbabweans have been inundated with claims that certain provisions of Constitutional Amendment No. 3 (CAA3) are unlawful because they were not subjected to a referendum or allegedly violate the Bill of Rights.

Lawyers, activists and political figures, including Douglas Mwonzora, and Professor Lovemore Madhuku and several organisations, have approached the Constitutional Court arguing that

Parliament and the President acted outside the law by extending the electoral cycle from five to seven years and introducing an indirect presidential election through Parliament, among other changes.

While these arguments have attracted significant public attention, they do not appear to be supported by a sound reading of the Constitution.

Rather than presenting a compelling constitutional case, they amount to political arguments dressed up as legal challenges.

The Constitution is clear on the circumstances under which a referendum is required.

Only three categories of amendments trigger a referendum: changes to Chapter 4 (the Declaration of Rights), Chapter 16 (Agricultural Land) and Section 328, which protects entrenched constitutional provisions such as presidential term limits.

CAA3 does not amend any of these sections. Instead, it amends Section 158, which deals with the electoral cycle, and Section 92, which governs the method of electing the President.

These provisions are not entrenched and their amendment does not require a referendum. This is not a matter of opinion but a matter of constitutional interpretation.

Equally important, the rights contained in Section 67 remain intact and were not amended. Citizens continue to enjoy the right to free, fair and regular elections, the right to form and join political parties, the right to vote by secret ballot and the right to stand for public office. Zimbabweans will still elect the political parties and Members of Parliament of their choice, while those elected representatives will in turn vote for the President.

This arrangement may be debated politically, but it does not amount to disenfranchisement.

The electorate would still exercise political authority through representatives chosen at the ballot box.

Beyond the text of the Constitution itself, Zimbabwe already has legal precedents regarding amendments to both Section 92 and electoral-cycle provisions. In relation to Section 92, the 2013

Constitution originally provided for running mates to be directly elected alongside the President.

That requirement was removed through Constitutional Amendment No. 2, which came into effect on 7 May 2021 without a referendum, and the amendment was not overturned by the courts.

Deputy Presidents are now appointed by the President.

The method by which the President is elected, or deputies are appointed, is not among the Constitution’s entrenched provisions. Consequently, any challenge based on the argument that such changes infringe the Bill of Rights faces considerable legal hurdles.

The position on electoral cycles is also informed by judicial precedent.

The Max Mupungu judgment addressed both the referendum and beneficiary questions in a way that is highly relevant to the current debate.

When the retirement age for judges was raised from 70 to 75 years, the High Court initially held that beneficiaries could not remain in office because the amendment had not been subjected to a referendum under Section 328.

The Constitutional Court overturned that decision, holding that altering the retirement age did not amount to changing term limits and therefore did not require a referendum.

The court further ruled that beneficiaries could not be excluded because the amendment did not fall within the protections of Section 328.

The reasoning applies directly to the present dispute. Extending the electoral cycle is not the same as altering term limits; it changes only the timing of elections.

CAA3 therefore appears to rest on firm constitutional foundations.

The referendum argument is legally weak, while claims that Section 67 has been violated, either directly or indirectly, struggle to find support in the text of the Constitution. Existing legal precedents point in the opposite direction.

Whether one agrees with the amendment as a matter of politics is a separate question.

However, constitutional litigation must ultimately be determined by the law and not by political preference. On that score, the challenge faces significant obstacles.