No more legal hurdles for CAB3

In the latest judicial setback for opponents of the Constitution Amendment (No. 3) Bill, the Constitutional Court has struck off an application by former Binga North legislator Prince Dubeko Sibanda, ruling that the challenge was simply too early, effectively removing immediate legal hurdles to the bill, which seeks to extend President Mnangagwa’s term of office and overhaul the electoral system.

The unanimous decision, authored by Justice Bharat Patel and endorsed by Chief Justice Elizabeth Gwaunza, Deputy Chief Justice Paddington Garwe, Justices Rita Makarau, Susan Gowora, Ben Hlatshwayo and Acting Constitutional Court judge, Justice Antonia Guvava— leaves intact the parliamentary process surrounding the constitutional amendment proposal.

It also reinforces a growing judicial reluctance to intervene before political processes have run their course.

The crumbling of the cases was happening despite spirited attempts by opponents to derail CAB3.

For the second time in recent months, the courts have declined to enter the constitutional battlefield at the invitation of those seeking to halt the process before Parliament completes its work.

All this has cleared the path for the President to lead the nation until 2030 despite the emergence of opponents who sought to block him.

Meanwhile, the National Assembly passed the bill, which would extend presidential and parliamentary terms by two years.

Zimbabwe’s parliament has taken a big step toward extending the President’s tenure, with legislators strongly arguing that this will provide Zimbabweans with political certainty, maintain stability and drive national development. Large indigenous and apostolic church coalitions and groupings have all consistently thrown their weight behind the President and the ruling Zanu-PF party.

These religious bodies have actively endorsed national development initiatives and rallied political support for the President.

Central to Sibanda’s case were clauses 4(b) and 9(b) of the proposed amendment Bill. He argued that the provisions sought to sidestep section 328(7) of the Constitution, a safeguard designed to prevent constitutional amendments extending term limits from benefiting those already occupying the affected offices.

According to Sibanda, Parliament had already breached its constitutional obligations by publishing and processing a Bill that purported to operate “notwithstanding section 328(7).”

But the Constitutional Court refused to engage with the substance of the argument. Instead, Justice Patel, writing for the court, focused on a different question: whether the dispute was ripe for adjudication.

The answer was a firm no.

The judges noted that the Bill remains deep within the legislative process. Public consultations had only recently concluded. Parliament had not yet debated the Bill.

No votes had been cast. No final text had emerged. The President had not been called upon to exercise his constitutional powers. In short, the constitutional amendment existed only as a proposal.

The court warned against being drawn into what it described as hypothetical constitutional disputes whose outcome remains uncertain. A Bill, the judges observed, can change shape, lose clauses, gain amendments, be rejected outright or even be withdrawn altogether.

In language that echoed constitutional courts across many jurisdictions, the judgment emphasised that courts deal with disputes that have crystallised, not with political possibilities floating in the future.

“The final shape and form of the Bill remain presently unknown,” Justice Patel wrote.
The decision reinforces the doctrine of judicial restraint and separation of powers, with the court stressing that Parliament must be allowed to conduct its legislative business without premature judicial interference.

The judges pointed to existing constitutional safeguards, including the President’s power to refer a Bill back to Parliament or seek an advisory opinion from the Constitutional Court if constitutional concerns arise after passage.

However, the court stopped short of endorsing the contested clauses. Far from blessing them, the judges deliberately avoided ruling on whether they violate section 328(7).

That question, they said, remains open for another day. Yet the practical effect of the judgment is unmistakable. The amendment process survives another legal challenge.

The ruling follows another recent defeat suffered by opponents of the constitutional changes.
Earlier, war veterans who sought judicial intervention against the proposed amendments also failed to secure the relief they sought.

Together, the decisions signal a clear pattern emerging from the courts. Challenges aimed at stopping the amendment process before Parliament has completed its work face formidable hurdles.

Parliament wants to be consulted before the appointment of an additional 10 senators envisaged by CAB3.

The Bill was passed overwhelmingly after securing 216 votes in the National Assembly, comfortably surpassing the 187 votes required for a two-thirds majority.

Forty-two legislators voted against the Bill.

This result reflected significant cross-party support, with at least 35 opposition MPs backing Zanu-PF lawmakers in supporting CAB3.

CAB3 will be heading to the Senate for debate this week.

At the Senate stage, the Bill must also secure a two-thirds majority before it can proceed further. Given Zanu-PF’s dominance in the upper chamber, political analysts say chances are very high that the legislation will pass there as well.

If approved by the Senate, CAB3 will then be presented to President Mnangagwa for assent.
Under Zimbabwe’s constitutional amendment procedures, passage by both Houses is required before the bill can become law.