Calls for Extended Presidential Term Spur Constitutional Debate
There are growing indications that President Emmerson Mnangagwa, nearing the end of his second five-year term in 2028, may be urged by members of his ruling Zanu PF party to remain in power beyond this constitutional limit. This push directly challenges Section 91(2) of the constitution, which explicitly disqualifies an individual from being elected president if they have already served two terms.
While President Mnangagwa has publicly affirmed his commitment to upholding the constitution, reports suggest that Justice Minister Ziyambi Ziyambi is preparing a bill aimed at amending the constitution to permit a presidential tenure beyond 2028. This development raises significant questions about the potential shape of such a bill and the constitutional provisions that would necessitate amendment.
Key Constitutional Provisions Under Scrutiny
To facilitate a presidential term extension beyond 2028, several crucial sections of the constitution would need to be revised.
Section 91(2): Presidential Term Limits
This section is the primary barrier to an extended presidency. It states:
“(2) A person is disqualified for election as president or appointment as vice-president if he or she has already held office as president under this constitution 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.”
Given that President Mnangagwa will have completed two full five-year terms by 2028, this section would undeniably require amendment to allow for any further service.Section 95(2): Presidential Term Length
A potential avenue for extending the president’s tenure could involve increasing the length of each term from the current five years to a longer period, such as seven years. This would necessitate amending Section 95(2), which currently defines the presidential term:
“(2) The term of office of the president extends until—
(a) he or she resigns or is removed from office; or
(b) following an election, he or she is declared to be re-elected or a new President is declared to be elected; and, except as otherwise provided in this constitution, his or her terms of office are five years and coterminous with the life of Parliament.”Section 328(7): Amendments to Term-Limit Provisions
Perhaps the most complex obstacle lies within Section 328 of the constitution, which outlines the procedure for constitutional amendments. Specifically, Section 328(7) presents a significant challenge for any attempt to extend the president’s term to benefit an incumbent.Section 328(1) defines a “term-limit provision” as:
““term-limit provision” means a provision of this constitution which limits the length of time that a person may hold or occupy a public office.”Section 328(7) then stipulates:
“(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 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 provision effectively means that any amendment to extend term limits would not apply to individuals who have already held or are currently holding that office. Consequently, for an extension to benefit President Mnangagwa, Section 328(7) would either need to be amended or repealed. This is particularly problematic as Section 328(7) is an “entrenched” provision, making it significantly more difficult to alter.
The Constitutional Amendment Process
The constitution outlines a specific procedure for amendments, detailed in Section 328. For ordinary amendments, the process involves several key steps:
- Publication: The Speaker of Parliament must publish the exact wording of the proposed amendment in the official Gazette. The amendment cannot be introduced in Parliament until 90 days after this publication.
- Public Consultation: Parliament is required to invite public comments on the proposed amendment through written submissions and public hearings.
- Parliamentary Approval: The amendment bill must secure a two-thirds majority vote in both the National Assembly and the Senate during its final reading.
However, amending entrenched provisions, such as Section 328(7), requires an additional, more stringent step:
- National Referendum: After being passed by a two-thirds majority in both parliamentary houses, the amendment bill must be submitted to a national referendum. It can only become law if it is approved by a majority of the voters participating in the referendum. It is important to note that under Section 155, all registered voters must be allowed to vote, precluding the use of sample surveys.
Since Section 328(7) is an entrenched provision, any attempt to amend it to extend the presidential term beyond 2028 would necessitate a national referendum.
Circumventing Referendum Requirements: A Difficult Task
Throughout history, leaders have sought creative ways to bypass constitutional term limits. Examples include former Argentine President Juan Perón, who allegedly ruled through his wife Evita, and Russian President Vladimir Putin, who temporarily swapped roles with his deputy Dmitry Medvedev to circumvent restrictions on consecutive terms.
Zimbabwe’s constitution, however, has attempted to preempt such maneuvers:
- Section 91(2) Safeguards: This section explicitly prevents the “Putin trick” by disallowing a person from running for president if they have already served two terms, “whether continuous or not.” It also addresses scenarios where a president might resign shortly before their term ends, by stipulating that “two or more years’ service is deemed to be a full term.”
- Section 328(7) and Referenda: This section mandates a referendum for any amendment to a term-limit provision that has the effect of extending an incumbent’s term, even if the amendment doesn’t explicitly name the provision.
Therefore, any legislative effort to extend the president’s term without a referendum would likely be deemed unconstitutional, as it would contravene the fundamental principle that term limits cannot be altered to benefit current officeholders.
The Enduring Significance of Term Limits
The constitutional protections surrounding term limits are not arbitrary; they are rooted in a fundamental understanding of democratic governance and the need to prevent the abuse of executive power. This principle has historical precedents, dating back to ancient Rome where consuls served one-year terms.
In systems where the president holds both head of state and head of government roles, as in Zimbabwe, presidential term limits are particularly crucial for several reasons:
- Promoting Peaceful Transitions of Power: Clearly defined term limits ensure that the transfer of presidential power becomes a predictable and orderly process. This reduces the likelihood of political opponents resorting to violence, fostering stability and encouraging economic development.
- Preventing Undue Concentration of Power: Prolonged presidential tenure often leads to an excessive accumulation of power within the executive branch, potentially benefiting the president’s inner circle and fostering corruption. This is detrimental to good governance, human rights, and economic progress.
- Encouraging Emergence of New Leadership: Indefinite presidencies can stifle the rise of new leaders and new ideas. The lengthy tenure of former President Robert Mugabe in Zimbabwe, for instance, exemplifies how long-serving leaders can block the emergence of the next generation of political talent. Term limits, when respected, allow for the infusion of fresh perspectives and leadership.
- Creating a Level Electoral Playing Field: When a president is constitutionally bound to step down after serving their term(s), elections to replace them are more likely to be fair. Candidates do not benefit from the inherent advantages of incumbency, such as the use of state resources for campaigning.
- Fostering Respect for the Rule of Law and Human Rights: Knowing that their time in office is finite encourages presidents to conduct themselves within the bounds of the law and to moderate their actions. This awareness can lead to greater respect for colleagues and political opponents, as they may occupy similar positions in the future.
Conclusion
Constitutional term limits, especially for the presidency, are vital safeguards for democratic societies and should not be treated lightly. If amendments are to be made, particularly those intended to benefit an incumbent president, the constitution’s strict procedures, including the mandatory requirement for a referendum, must be followed without exception. Any attempt to circumvent these provisions through legislative ingenuity or other means would fundamentally undermine the constitution and the democratic values it represents.
