Understanding the Path to Extending the President’s Term
For well over a year, some factions within the ruling party have been advocating for the President to seek a third term in office after his current term ends in 2028. This push gained momentum during the party’s recent national conference in Mutare, where a resolution was passed calling for the President’s term to be extended by two years to 2030. The resolution stated:
“The party and government are therefore directed to initiate the requisite legislative amendments to give full effect to this resolution to ensure continuity, stability and the sustained transformation of the nation.”
This article explores what constitutional changes would need to occur for the President to remain in office beyond 2028.
Would a Constitutional Amendment Be Necessary?
The first point to consider is that any extension of the President’s term or the possibility of serving another term would require a constitutional amendment. According to section 91(2) of the Constitution:
“A person is disqualified for election as President or appointment as Vice-President if he or she has already held office as President for two terms, whether continuous or not, and for the purpose of this subsection three or more years’ service is deemed to be a full term.”
By the time of the next general election in 2028, President Mnangagwa will have served two full terms, making him ineligible for re-election. Therefore, a constitutional amendment would be necessary if he is to continue in office.
One legal expert has suggested extending the presidential term from five to seven years to allow Mr. Mnangagwa to serve until 2030. However, this would also require a constitutional amendment because section 95(1) fixes the length of the President’s term at five years.
Which Provisions of the Constitution Would Need to Be Amended?
Amendment of Section 91
The most straightforward amendment would involve section 91, which currently sets the presidential term limit. To allow the President to serve more than two terms, this section would need to be revised. This could involve either repealing section 91(2) or changing the wording from “two terms” to “three terms,” “four terms,” or any other number decided upon.
Amendment of Section 95
If the term length is increased to seven years, section 95(1) would also need to be amended. It currently states that the President’s term is “five years and coterminous with the life of Parliament.” Changing this to “seven years” would require adjustments to sections 143(1) and 158(1), which govern the life of Parliament.
The Process for Amending the Constitution
Section 328 of the Constitution outlines the steps required to amend the Constitution:
- Publication in the Gazette: The Speaker must publish the precise terms of the proposed amendment in the Gazette.
- Public Comment Period: After 90 days, the public can submit written comments and participate in hearings convened by the Portfolio Committee on Justice, Legal and Parliamentary Affairs.
- Legislative Approval: The Bill containing the amendment must pass by a two-thirds majority in both the National Assembly and the Senate.
- Presidential Assent: The Speaker and presiding officer of the Senate must certify that the Bill received the necessary majorities.
However, there is a critical limitation: the amendments will not apply to President Mnangagwa due to section 328(7) of the Constitution.
Section 328(7) and Its Implications
Section 328(7) ensures that amendments to term-limit provisions do not benefit current or past office-holders. It states:
“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 a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
This means that even if sections 91 or 95 were amended, President Mnangagwa would not be eligible to benefit from the change unless section 328(7) itself is amended or repealed.
Repealing Section 328(7)
To allow the President to benefit from the amendment, a separate Bill would need to be introduced to repeal or amend section 328(7). This Bill would follow the same rigorous process:
- Published in the Gazette for 90 days.
- Public consultation and hearings.
- Passed by two-thirds majority in both chambers.
- Submitted to a national referendum within three months, requiring approval by a majority of voters.
Circumventing the Constitution
Some have suggested bypassing the need for a referendum by introducing a new provision stating that presidential terms last seven years instead of five. However, this approach faces significant challenges:
- The definition of “amend” includes varying, altering, modifying, adding, deleting, or adapting, which would effectively nullify section 95(2).
- Any such provision would be interpreted in a way that upholds the Constitution’s underlying values, including the principle that incumbents cannot benefit from term-limit extensions without voter approval.
In Defence of Term Limits
Term limits are a crucial democratic safeguard against the abuse of executive power. They encourage accountability and ensure a regular turnover of leadership. Historically, term limits have been recognized as essential to maintaining a balance of power and preventing the concentration of authority.
In conclusion, while the path to extending the President’s term is complex and legally demanding, it underscores the importance of adhering to constitutional principles and protecting democratic values.