Prince Dubeko Sibanda’s Challenge Misreads Section 328

I am back again. I read somewhere that former CCC MP who was unceremoniously recalled from Parliament is now attempting what other lawyers apparently preferred not to touch. He holds a law degree and is, by all accounts, a learned man. In fact, a few years ago I even called him on an unrelated matter concerning Chinese operations in Hwange after writing him a letter. At the time, he was driving from South Africa; I believe he was sitting for an exam - though I cannot now recall whether it was in law or another qualification.

So this is not a man lacking either academic grounding or political exposure. Which makes the current development all the more intriguing. One is left wondering how exactly he processed this particular issue and arrived at the conclusion that marching to court for what looks like a guaranteed defeat was the correct strategic move. Courage is admirable, of course. But courage in the face of overwhelming odds can sometimes look like volunteering for a public legal funeral.  He already had one after losing the CCC recall challenge. Then we conveniently blame the “captured” courts after setting ourselves up for failure.

He has approached the Constitutional Court challenging clauses in Constitutional Amendment Bill No. 3 that seek to make the proposed term extensions apply “notwithstanding section 328(7)” of the Constitution. His application targets Clause 4(b), which concerns the President, and Clause 9(b), which concerns Parliament, on the basis that they attempt to bypass the Constitution’s safeguard against incumbents benefiting from tenure extensions.

At first glance, the argument appears compelling. When I first saw it, my immediate reaction was that I should punch myself in the face for not having remotely considered that angle. I was briefly disappointed with my own analysis. But instead of surrendering to that first impression, I went back to the section, studied it more carefully, and read more widely to build a more defensible understanding.

So, Section 328(7) clearly appears to exist to stop office holders from changing tenure rules and then immediately benefiting from the change themselves. The Constitution states that “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 before the amendment.” On the surface, that language appears to be a non-negotiable constitutional barrier. But once section 328 is read carefully and in its entirety, the matter becomes more complicated.

The first thing that sticks out is that section 328 performs several different functions in the Constitution. Subsections (3), (4) and (5) establish the normal procedure for amending the Constitution. A Constitutional Bill must be gazetted at least ninety days before it is introduced in Parliament. Parliament must invite public submissions and hold consultations. The Bill must then pass with a two-thirds majority in both the National Assembly and the Senate. Those provisions clearly create the ordinary pathway through which constitutional change occurs.

Then comes subsection (6), which introduces the referendum mechanism. This is the provision everyone is casually talking about. But we need to dig deeper, even if we are not lawyers. And yes, we can. Let no one suggest that interpreting the law is the exclusive preserve of lawyers. Anyone with comprehension, common sense, and the motivation to read carefully can do it.  Subsection (6) states that where a Constitutional Bill seeks to amend Chapter 4 or Chapter 16 of the Constitution, the amendment must be submitted to a national referendum and approved by a majority of voters before it can become law. Importantly, the wording is specific. The referendum requirement is triggered only when those particular chapters are amended.

That detail is important because much of the public debate has assumed that any amendment affecting presidential tenure automatically requires a referendum. That assumption is not supported by the text. Section 95, which fixes the duration of a presidential term, is not contained in Chapter 4 or Chapter 16. If Parliament were merely amending section 95 to alter the duration of a term, the Constitution does not automatically require a referendum. As I mentioned before, Ziyambi Ziyambi, the Minister of Justice, Legal and Parliamentary Affairs, is correct on this specific point. Perhaps not in other areas, of course.

The next layer of the analysis is section 328(7). This is the clause that has attracted the most attention. It embodies what can fairly be described as an anti-incumbency safeguard. It prevents those who already hold office from immediately benefiting from a constitutional amendment that extends the time a person may occupy that office.

The Constitution also defines what a “term-limit provision” means. Section 328(1) describes it as a provision of the Constitution that limits the length of time a person may hold or occupy a public office. This definition is broader than many political arguments assume. It refers generally to provisions that limit how long someone may remain in office. That is it.

As I mentioned in my Facebook post last week, I listened to part of the public discussion on the constitutional bill involving Professor Jonathan Moyo, together with lawyer Dr. Justice Mavedzenge. Professor Moyo made several interesting political observations. However, on the specific legal interpretation of the term-limit provisions, I believe he was partially correct.

Dr Mavedzenge, at least on the portion I heard, explained the definition of a “term-limit provision” more accurately in my opinion. He correctly recognised that the Constitution defines such provisions broadly. He went even further and cited case law that I had not previously encountered in order to clarify that definition. On that point, he did a splendid job.

Of course, I subsequently checked some of the case law myself. However, even his explanation does not go the full distance. The correct conclusion is not that every amendment that touches a term-limit provision automatically requires a referendum. It does not. The Constitution allows amendments to be passed by a two-thirds parliamentary majority in many instances.

Zimbabwean courts have already had to consider how that concept operates. In Musa Kika v Minister of Justice, Legal and Parliamentary Affairs and Others, the High Court held that extending the retirement age of the Chief Justice effectively extended the time he could hold office and therefore could not apply to the incumbent under section 328(7). The Constitutional Court later took a narrower view in Marx Mupungu v Minister of Justice, Legal and Parliamentary Affairs and Others, distinguishing between retirement age provisions and true term-limit provisions in the relevant constitutional sense.

Those cases illustrate that the meaning of term-limit provisions is not always straightforward. However, they do not change the basic point that section 328(7) exists to prevent immediate self-extension of tenure.

The real constitutional puzzle appears when one reads subsection (9). Section 328(9) states that “this section may be amended only by following the procedures set out in subsections (3), (4), (5) and (6), as if this section were contained in Chapter 4.” In other words, the Constitution protects the amendment clause itself. If Parliament wishes to amend section 328, it must follow the full constitutional amendment process and treat section 328 as though it were part of Chapter 4.

That wording is important because it shows that the Constitution anticipated the possibility that the amendment safeguards themselves might one day be revisited. And there is nothing wrong with revising those safeguards or controls. Dubeko Sibanda believes they are sacrosanct, they fell from heaven. That is the import of his challenge. The Constitution allows them to be changed, but only through the formal amendment pathway.

Another provision reinforces this design. Section 328(8) provides that subsections (6) and (7) cannot both be amended in the same Constitutional Bill and cannot both be submitted to voters in the same referendum. This clause is, for all intents and purposes, clearly designed as a defensive mechanism. It prevents a political majority from dismantling both the referendum protection and the anti-incumbency safeguard in a single stroke.

This raises the question many people have been asking: how many referendums would actually be needed under Constitutional Amendment Bill No. 3? The answer depends on exactly what Parliament is attempting to amend. If Parliament merely amends section 95 to change the length of the presidential term, then no referendum is automatically required because section 95 does not fall within Chapter 4 or Chapter 16.

However, if Parliament wishes to ensure that the amendment applies to the current office holders despite section 328(7), it must in substance neutralise or amend that safeguard. Once section 328 itself is placed in issue, subsection (9) becomes relevant because it requires amendments to section 328 to follow the same procedure that applies to Chapter 4 amendments. That procedure, of course, as you can now see, includes the referendum mechanism in subsection (6).

In that situation one referendum would likely be required to approve the amendment affecting section 328. I believe that the idea that two referendums must automatically be held arises from subsection (8), which says subsections (6) and (7) cannot both be amended in the same Bill or put to voters in the same referendum. But that provision only becomes relevant if Parliament attempts to amend both subsection (6) and subsection (7) at the same time. If only subsection (7) is affected, the Constitution does not automatically require two referendums. Two separate referendums would only become necessary if Parliament tried to amend both the referendum clause itself (subsection 6) and the anti-incumbency safeguard (subsection 7) together. That is my opinion until someone else provides a better one. This distinction has often been lost in the public debate.

This brings us back to Prince Dubeko Sibanda’s court challenge. His argument essentially says that because the Bill uses the words “notwithstanding section 328(7)”, Parliament is attempting to bypass the Constitution. But the Constitution itself recognises that section 328 can be amended. The amendment clause is not frozen. It is part of a constitutional system that allows its own rules to change through the procedure it prescribes.

Seen from that perspective, the presence of the word “notwithstanding” in the Bill is not automatically unconstitutional. Constitutional amendments routinely override existing provisions. That is what amendments do. If Parliament secures the required two-thirds majority and, where the Constitution requires it, the amendment is approved through a referendum, the constitutional order itself authorises the modification of that safeguard. In that situation the new constitutional rule replaces the old one. The original purpose of the safeguard does not permanently bind society or hold the constitutional system hostage. The real protection lies in the demanding amendment process itself. A supermajority in Parliament, and in some cases the direct approval of voters, ensures that any change reflects broad political consensus rather than the whim of a single leader or temporary majority. That is what the Constitution allows, despite our political or personal preferences.  The Constitution is supreme, but the Constitution also defines the lawful method by which it can change itself. If the self-amendment procedure set out in the Constitution is properly followed, the resulting change is constitutionally valid even when it modifies the original purpose – in Prince Dubeko’s case, Section 328(7).

For that reason, Prince Dubeko Sibanda’s challenge may ultimately face real difficulty. But he is used to political obstacles, having previously brought flawed court challenges with his now-defunct party. But I digress. Prince, the fact that the Bill seeks to override section 328(7) does not automatically make it unconstitutional. The real constitutional question is whether Parliament follows the amendment procedure laid down in section 328 itself. As a lawyer, I believe this should be easy to understand. I also think you already know this – you are probably just bringing this court challenge to suffer a routine defeat and resurrect your political relevance before the upcoming elections.

So if procedures are followed, the Constitution permits its own safeguards to be modified. The purpose of a constitutional provision does not permanently lock the legal system in place. Constitutional rules exist within a framework that allows them to evolve through the amendment process. The real test for Bill No. 3 therefore is not whether section 328(7) exists. It is whether Parliament respects the constitutional pathway required to change it.

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Charles Munkuli is a Chartered Accountant and Registered Auditor, and writes in his personal capacity on Governance and Public Policy.