Whether Constitutional Amendment Bill No. 3 Requires a Referendum Under Section 328 of the Constitution of Zimbabwe (Formalist Position)

This memorandum considers whether Constitutional Amendment Bill No. 3 (hereinafter “CAB 3”) triggers the requirement of a referendum in terms of section 328 of the Constitution of Zimbabwe. The issue arises from the Bill’s use of a “notwithstanding” clause in circumstances where section 328 itself contains a safeguard prohibiting incumbents from benefiting from amendments to term-limit provisions. It is submitted that, under a formalist approach to constitutional interpretation, CAB 3 does not require a referendum, as it does not expressly amend any of the provisions protected by section 328. This approach finds support in United Democratic Movement v President of the Republic of South Africa, where the court emphasised adherence to procedural requirements as the primary test of constitutional validity.

2. The Nature and Scope of Section 328

It is common cause that section 328 establishes the procedure for constitutional amendment and identifies specific provisions that require approval by referendum. These include Chapters 4, 5, 6, 7 and 8 of the Constitution, as well as section 328 itself. It is submitted that the language of section 328 must be interpreted strictly, as it imposes an exceptional procedural burden on Parliament. Accordingly, the referendum requirement is only triggered where there is a direct and express amendment to the protected provisions. This position is consistent with Shankari Prasad v Union of India, where the court adopted a formalist approach and declined to infer substantive limitations not grounded in the constitutional text.

3. CAB 3 as a Qualification Rather Than an Amendment

It is submitted that CAB 3 does not amend section 328 in its text or structure, but rather introduces a qualification to the operation of certain constitutional provisions through the use of a “notwithstanding” clause. The Bill does not repeal, substitute, or expressly alter section 328. Instead, it provides for the application of a new rule that operates alongside existing provisions. In this regard, it may be contended that CAB 3 constitutes an interpretive adjustment rather than a substantive amendment. This reasoning finds support in Sajjan Singh v State of Rajasthan, where the court upheld Parliament’s broad power to amend constitutional provisions without being constrained by prior limitations.

4. The Legal Effect of the “Notwithstanding” Clause

The use of the term “notwithstanding” in CAB 3 must be understood within its proper legal context. It is submitted that such language operates as a drafting technique intended to resolve conflicts between provisions of equal authority, rather than to effect a direct amendment of existing provisions. In this sense, the clause establishes the precedence of the new provision in cases of inconsistency, without altering the underlying text of section 328. This approach is consistent with R (Jackson) v Attorney General, which affirms the authority of Parliament to enact laws that take precedence over existing norms within the legal system.

5. Absence of Express Amendment to Section 328

A critical consideration is that CAB 3 does not expressly amend section 328, which is itself one of the provisions protected by the referendum requirement. It is submitted that constitutional interpretation must be guided by the express wording of the Constitution. To extend the referendum requirement to provisions that merely affect the operation of section 328 indirectly would be to introduce uncertainty and to expand the scope of constitutional safeguards beyond their textual limits. This position is reinforced by Madzimbamuto v Lardner-Burke, which underscores the principle that legal validity is grounded in formal authority rather than inferred limitations.

6. Rejection of Substantive Characterisation

It is submitted that a formalist court would reject the argument that CAB 3 constitutes a “de facto” amendment of section 328. Such an argument relies on a substantive assessment of the effect of the Bill, rather than its form. However, under a formalist approach, the role of the court is confined to determining whether the prescribed procedures have been followed, and not to evaluating the broader implications of the amendment. This approach is supported by United Democratic Movement v President of the Republic of South Africa, where the court declined to impose substantive constraints on constitutional amendments beyond those expressly provided.

7. Preservation of Constitutional Flexibility

It is further submitted that requiring a referendum in circumstances where section 328 has not been expressly amended would unduly restrict Parliament’s amendment power and undermine the flexibility of the Constitution. The Constitution must remain capable of adaptation to changing political and social conditions. To interpret section 328 as extending to indirect or implied amendments would risk converting it into an implied eternity clause, which is neither expressed nor intended. This reasoning is supported by Shankari Prasad v Union of India, which affirms the plenary nature of constitutional amendment power in the absence of explicit limitations.

8. Conclusion

In conclusion, it is submitted that Constitutional Amendment Bill No. 3 does not require a referendum under section 328 of the Constitution of Zimbabwe. The Bill does not expressly amend any of the provisions that trigger the referendum requirement, including section 328 itself. Its use of the term “notwithstanding” operates as a legitimate drafting mechanism designed to resolve conflicts within the constitutional framework, rather than as an amendment to entrenched provisions. Accordingly, provided that the procedural requirements of section 328 are satisfied, CAB 3 may be upheld as constitutionally valid without recourse to a referendum.