Referendum or Not: Constitutional Court to Decide

A concerned citizen texted me on WhatsApp, trying to understand what now after court challenges by Biti and Madhuku against the Constitutional Amendment (No.3) Bill. Prince Dubeko Sibanda also submitted another court challenge against the Bill. Iam no lawyer but I do read the Constitution. First time l read the 2013 Constitution was in 2015 in a bus from Zimbabwe to South Africa. It was not hard to read. It does not need a law degree to understand. So, I will quicky rush to the debated section 328 (6) of the 2013 Constitution.

We must first understand that the constitution clearly states that only chapter 4 and 16 requires a referendum, if to be amended. Chapter 4 and 16 focus on human rights and agriculture. So, sections tied to the Constitutional Amendment (No.3) proposed by ZANU-PF are outside chapter 4 and 16. Section 328 (6) reads

where a Constitutional Bill seeks to amend any provision of chapter 4 and 16 …

(a) Within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum

(b) If it approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted without delay to the President, who must assent to and sign it forthwith

It is crystal clear that (a) and (b) are talking about chapter 4 and 16 that has nothing to do with Presidential term limits. Hence, extending or not extending Presidential term limit does not need a referendum.

What does the 2013 Constitution say about Presidential term limits if to be amended? Let us read Section 328 (7)

(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 person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or equivalent office, at any time before the amendment

In simple legal terms, Section 328 (7) is referring to the person occupying the office who should not benefit from the extension of Presidential term. In this case, ZANU -PF is saying extension of Presidential term that benefits the person here refers to a third term extension (meaning another 5 years). Hence, ZANU-PF is not seeking third term for President Emmerson Mnangagwa but change of electoral cycle from 5 to 7 years. In short, Section 328(7) is not talking about the referendum. I am still wondering where many are missing it.

It is, therefore, the Constitutional Court which will decide and guide Parliament on a way forward. We are all waiting for the Constitutional Court to speak and conclude the matter. Constitutional Court is above Parliament. So, whatever submitted through Parliament by any important persons cannot override decision by Constitutional Court. If Constitutional Court says no referendum as guided by the Constitution, extension of Presidential term from 5 to 7 years will be concluded without a referendum