News / Local
Mnangagwa's gamble faces legal hurdles
12 Feb 2024 at 08:55hrs | Views
PRESIDENT Emmerson Mnangagwa's long-standing bid to seek a third term in office faces legal hurdles amid revelations by constitutional law experts that any constitutional amendment for an extension of presidential term limits, albeit cumbersome and requiring a referendum, cannot benefit the incumbent.
Mnangagwa's pushing for a third term was supposedly kick-started after his party, Zanu-PF, secured a two-thirds majority in the National Assembly.
It has however emerged that clinching a two-thirds majority in the lower House is not enough as a two-thirds is also required in the Senate.
The Senate has fixed seats for the opposition MPs but if Zanu-PF can win them over, the two-thirds majority can be achievable.
However, constitutional lawyers said even if the presidential term limits extension is somehow achieved by Zanu-PF, Mnangagwa as an incumbent president will not benefit as any term extension does not apply to incumbents, according to the constitution.
Midlands State University constitutional law lecturer Valentine Mutatu, who has been practicing as a lawyer for more than 18 years, said a case study of Mupungu versus Minister of Justice and others recorded as CCZ07/21 can answer in legal terms whether Mnangagwa is at liberty to contest for a third term or not.
"The answer is found in the case of Mupungu v Minister of Justice and others CCZ07/21 where the court commented as follows about section 328 (7) ‘. . . the prescribed term limits cannot be extended so as to apply to sitting incumbents without contravening the provisions of section 328 (8)'. The case involved the debate around the extension of the term of office of the Chief Justice. The interpretation would be correct in the context of your inquiry," Mutatu said.
"My view is that it is possible to amend the constitution regarding term limits but the incumbent will be precluded from benefiting as per the judgment of the constitutional court."
The NewsHawks retrieved the judgment in the case delivered by Constitutional Court judges Rita Makarau and Bharat Patel in September 2021.
The case had been brought by Marx Mpungu on 15 May 2021 when the Chief Justice, Luke Malaba, reached the age of 70, the retirement age. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No. 2) Act (No. 2 of 2021) came into force.
Among other provisions, it amended section 186 of the constitution to provide for the tenure of judges in the following terms:
"(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years; Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office."
Mnangagwa therefore extended Malaba's term of office, prompting Mpungu to approach the Constitutional Court to challenge the extension.
Makarau and Patel's judgment which declared that Malaba's term limit was unconstitutional went on to highlight that an incumbent president could also not benefit from a term limit extension. Part of the judgement reads: "By way of contrast, the Constitution abounds with a myriad of provisions that unquestionably constitute specific term limit provisions within the parameters of section 328. First and foremost, there is section 95(2) which expressly stipulates that the term of office of the President is 5 years and coterminous with the life of Parliament ...
"... As is self-evident, the tenure of all public offices is undoubtedly subject to a specific 'term-limit provision' within the meaning of section 328 (1). Consequently, an amendment to any such provision, the effect of which is to extend the length of time that a person may hold or occupy the public office in question, falls squarely within the ambit of section 328 (7). Therefore, by dint of the restriction imposed by section 328(7), such amendment does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment came into force and effect."
A seasoned lawyer and former Mutare Central MP, Innocent Gonese, again told The NewsHawks that Mnangagwa cannot benefit from any presidential term limit extension because of section 328 of the constitution.
"A reading of section 328, particularly paragraph 7, makes it very clear that the intention of the framers of the constitution was to prevent a situation where term limits can be easily extended," Gonese said.
"In other words, there are various office bearers whose terms are limited by the constitution, you've got the Clerk of Parliament, you've got the President and so on and so forth. So the intention was to make it really difficult for anyone to have that extension. But more importantly, sub-section 7 makes it very clear that any such amendment cannot then benefit the person who is in occupation of that particular office."
"So the intention was to try to prevent abuse so that people like the president of the Chiefs' Council, for example, who also have term limits, are not in a position to have or to initiate or to promote an extension in which they would stand out to benefit."
Gonese added that section 328 was meant to provide for a situation where any such extension would then benefit people who would subsequently come into occupation of that office to benefit from the extension of term limits.
"So, the framers of the constitution also made it particularly difficult in the sense that those two provisions, sub-section 6 and sub-section 7, can only be amended after being subjected to a referendum," said Gonese.
"And in fact, you would need two referendums to do that, because the first one would be to remove the provisions of the particular section concerned. And again, for it to apply, you would need a second referendum, as the wording of that sub-section clearly provides."
Gonese added: "Now going to the issue of whether an amendment can be made under the current composition of the National Assembly and the Senate. One must bear in mind that a Parliament consists of two Houses, and each House is to vote and proceed separately. You combine the total of both Houses and then look at the two-thirds. So when you look at the political issue now in terms of the composition, in the National Assembly after the recent by-election, it's quite evident that the governing party now has a majority. In terms of the Senate, technically speaking, in terms of the numbers, that majority is not there."
The former MDC chief whip highlighted that one must remember that this is not necessarily a legal question as it can also be a political issue as on Amendment No. 2 in the 9th Parliament, some members of the MDC led by Douglas Mwonzora voted in favour of the amendment.
Constitutional law expert Professor Lovemore Madhuku did not respond to messages or calls to speak on the matter.
Recently, political analyst Dr Phillan Zamchiya debunked the notion that Zanu-PF has a two-thirds majority in Parliament, pointing out that the party has not attained the required numbers in the Senate.
Mnangagwa's pushing for a third term was supposedly kick-started after his party, Zanu-PF, secured a two-thirds majority in the National Assembly.
It has however emerged that clinching a two-thirds majority in the lower House is not enough as a two-thirds is also required in the Senate.
The Senate has fixed seats for the opposition MPs but if Zanu-PF can win them over, the two-thirds majority can be achievable.
However, constitutional lawyers said even if the presidential term limits extension is somehow achieved by Zanu-PF, Mnangagwa as an incumbent president will not benefit as any term extension does not apply to incumbents, according to the constitution.
Midlands State University constitutional law lecturer Valentine Mutatu, who has been practicing as a lawyer for more than 18 years, said a case study of Mupungu versus Minister of Justice and others recorded as CCZ07/21 can answer in legal terms whether Mnangagwa is at liberty to contest for a third term or not.
"The answer is found in the case of Mupungu v Minister of Justice and others CCZ07/21 where the court commented as follows about section 328 (7) ‘. . . the prescribed term limits cannot be extended so as to apply to sitting incumbents without contravening the provisions of section 328 (8)'. The case involved the debate around the extension of the term of office of the Chief Justice. The interpretation would be correct in the context of your inquiry," Mutatu said.
"My view is that it is possible to amend the constitution regarding term limits but the incumbent will be precluded from benefiting as per the judgment of the constitutional court."
The NewsHawks retrieved the judgment in the case delivered by Constitutional Court judges Rita Makarau and Bharat Patel in September 2021.
The case had been brought by Marx Mpungu on 15 May 2021 when the Chief Justice, Luke Malaba, reached the age of 70, the retirement age. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No. 2) Act (No. 2 of 2021) came into force.
Among other provisions, it amended section 186 of the constitution to provide for the tenure of judges in the following terms:
"(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years; Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office."
Mnangagwa therefore extended Malaba's term of office, prompting Mpungu to approach the Constitutional Court to challenge the extension.
Makarau and Patel's judgment which declared that Malaba's term limit was unconstitutional went on to highlight that an incumbent president could also not benefit from a term limit extension. Part of the judgement reads: "By way of contrast, the Constitution abounds with a myriad of provisions that unquestionably constitute specific term limit provisions within the parameters of section 328. First and foremost, there is section 95(2) which expressly stipulates that the term of office of the President is 5 years and coterminous with the life of Parliament ...
"... As is self-evident, the tenure of all public offices is undoubtedly subject to a specific 'term-limit provision' within the meaning of section 328 (1). Consequently, an amendment to any such provision, the effect of which is to extend the length of time that a person may hold or occupy the public office in question, falls squarely within the ambit of section 328 (7). Therefore, by dint of the restriction imposed by section 328(7), such amendment does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment came into force and effect."
A seasoned lawyer and former Mutare Central MP, Innocent Gonese, again told The NewsHawks that Mnangagwa cannot benefit from any presidential term limit extension because of section 328 of the constitution.
"A reading of section 328, particularly paragraph 7, makes it very clear that the intention of the framers of the constitution was to prevent a situation where term limits can be easily extended," Gonese said.
"In other words, there are various office bearers whose terms are limited by the constitution, you've got the Clerk of Parliament, you've got the President and so on and so forth. So the intention was to make it really difficult for anyone to have that extension. But more importantly, sub-section 7 makes it very clear that any such amendment cannot then benefit the person who is in occupation of that particular office."
"So the intention was to try to prevent abuse so that people like the president of the Chiefs' Council, for example, who also have term limits, are not in a position to have or to initiate or to promote an extension in which they would stand out to benefit."
Gonese added that section 328 was meant to provide for a situation where any such extension would then benefit people who would subsequently come into occupation of that office to benefit from the extension of term limits.
"So, the framers of the constitution also made it particularly difficult in the sense that those two provisions, sub-section 6 and sub-section 7, can only be amended after being subjected to a referendum," said Gonese.
"And in fact, you would need two referendums to do that, because the first one would be to remove the provisions of the particular section concerned. And again, for it to apply, you would need a second referendum, as the wording of that sub-section clearly provides."
Gonese added: "Now going to the issue of whether an amendment can be made under the current composition of the National Assembly and the Senate. One must bear in mind that a Parliament consists of two Houses, and each House is to vote and proceed separately. You combine the total of both Houses and then look at the two-thirds. So when you look at the political issue now in terms of the composition, in the National Assembly after the recent by-election, it's quite evident that the governing party now has a majority. In terms of the Senate, technically speaking, in terms of the numbers, that majority is not there."
The former MDC chief whip highlighted that one must remember that this is not necessarily a legal question as it can also be a political issue as on Amendment No. 2 in the 9th Parliament, some members of the MDC led by Douglas Mwonzora voted in favour of the amendment.
Constitutional law expert Professor Lovemore Madhuku did not respond to messages or calls to speak on the matter.
Recently, political analyst Dr Phillan Zamchiya debunked the notion that Zanu-PF has a two-thirds majority in Parliament, pointing out that the party has not attained the required numbers in the Senate.
Source - newshawks
