News / National
Mnangagwa's power retention moves face tricky constitutional hurdles
29 Feb 2024 at 20:32hrs | Views
PRESIDENT Emmerson Mnangagwa's bid to seek a third term in office, which he has set in motion, faces legal hurdles because the constitution bars incumbents from benefiting from an amendment allowing a third term.
The Zanu-PF leader, who clinched a narrow victory over his rival Nelson Chamisa in the August 2023 presidential race, is drumming support for his third term in office through proxies such as the ruling party's youth league and other affiliated organisations.
He will be gallivanting across the country during his "Thank You" rallies which are now seen as a campaign for the controversial third term. Legal experts and analysts however say his proposed move will face obstacles.
Section 91 of the constitution, which outlines qualifications for election as President and Vice-President, sets a limit of two terms for presidential aspirants.
Section 91 (2) reads: "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."
As first reported by The NewsHawks, Mnangagwa wants a third term in office at the expiry of his second term in 2028.
Mnangagwa rose to power after a military coup which toppled former president Robert Mugabe in November 2017. He served his first term between 2018 and 2023 after controversially winning the presidential elections.
He is serving his second term, which expires in 2028, after another controversial poll victory, which failed to meet provisions of Zimbabwe's Electoral Act, constitution and Sadc Principles and Guidelines Governing Democratic Elections according the Sadc observer mission.
Mnangagwa has taken advantage of the recalls of CCC legislators by self-imposed secretary-general Sengezo Tshabangu to garner a two-thirds majority in the National Assembly to push for a constitutional amendment, to enable him to run for a third term.
Although Tshabangu is a product of divisions and discontent in the opposition, state actors, including the courts, were mobilised to assist him as they took advantage of fractures in the opposition to ensure that Mnangagwa's thirdterm bid is aided.
Zanu-PF now has a two-thirds majority in the National Assembly but not in the Senate, whereas both houses should approve the proposal if it is to succeed. Section 328 (7) of the constitution however bars an incumbent from benefitting from a constitutional amendment.
It reads: "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."
Legal experts say any constitutional amendment for an extension of presidential term limits is cumbersome.
It requires a referendum. Lawyers say 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 practising as a lawyer for more than 18 years, told The NewsHawks a fortnight ago that 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 incum bent will be precluded from benefiting as per the judgment of the constitutional court."
The judgment in the case was delivered by Constitutional Court judges Rita Makarau and Bharat Patel in September 2021. The case was brought by Marx Mpungu on 15 May 2021 when Chief Justice Luke Malaba reached 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 judgment 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."
Lawyer and former Mutare Central legislator Innocent Gonese 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 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, with a recent example being Amendment No. 2 in the 9th Parliament when some members of the MDC led by Douglas Mwonzora voted in favour of the amendment.
The Zanu-PF leader, who clinched a narrow victory over his rival Nelson Chamisa in the August 2023 presidential race, is drumming support for his third term in office through proxies such as the ruling party's youth league and other affiliated organisations.
He will be gallivanting across the country during his "Thank You" rallies which are now seen as a campaign for the controversial third term. Legal experts and analysts however say his proposed move will face obstacles.
Section 91 of the constitution, which outlines qualifications for election as President and Vice-President, sets a limit of two terms for presidential aspirants.
Section 91 (2) reads: "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."
As first reported by The NewsHawks, Mnangagwa wants a third term in office at the expiry of his second term in 2028.
Mnangagwa rose to power after a military coup which toppled former president Robert Mugabe in November 2017. He served his first term between 2018 and 2023 after controversially winning the presidential elections.
He is serving his second term, which expires in 2028, after another controversial poll victory, which failed to meet provisions of Zimbabwe's Electoral Act, constitution and Sadc Principles and Guidelines Governing Democratic Elections according the Sadc observer mission.
Mnangagwa has taken advantage of the recalls of CCC legislators by self-imposed secretary-general Sengezo Tshabangu to garner a two-thirds majority in the National Assembly to push for a constitutional amendment, to enable him to run for a third term.
Although Tshabangu is a product of divisions and discontent in the opposition, state actors, including the courts, were mobilised to assist him as they took advantage of fractures in the opposition to ensure that Mnangagwa's thirdterm bid is aided.
Zanu-PF now has a two-thirds majority in the National Assembly but not in the Senate, whereas both houses should approve the proposal if it is to succeed. Section 328 (7) of the constitution however bars an incumbent from benefitting from a constitutional amendment.
It reads: "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."
Legal experts say any constitutional amendment for an extension of presidential term limits is cumbersome.
It requires a referendum. Lawyers say 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 practising as a lawyer for more than 18 years, told The NewsHawks a fortnight ago that 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.
The judgment in the case was delivered by Constitutional Court judges Rita Makarau and Bharat Patel in September 2021. The case was brought by Marx Mpungu on 15 May 2021 when Chief Justice Luke Malaba reached 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 judgment 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."
Lawyer and former Mutare Central legislator Innocent Gonese 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 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, with a recent example being Amendment No. 2 in the 9th Parliament when some members of the MDC led by Douglas Mwonzora voted in favour of the amendment.
Source - newshawks
