Nyambirai makes U-Turn on referendum debate

Lawyer and businessman Tawanda Nyambirai has made a sharp U-turn over proposed constitutional changes put forward by the ruling Zanu-PF, arguing that the fundamental amendments now on the table require a national referendum.

The proposed changes are contained in Constitutional Amendment Bill No. 3, which was gazetted earlier this week. Among the wide-ranging proposals, the Bill seeks to extend presidential terms from five to seven years. It would also allow President Emmerson Mnangagwa to remain in office for an additional two years, potentially extending his tenure to 2030.

Another significant proposal would shift the election of the President from a direct public vote to Parliament. Currently, Zimbabweans elect their Head of State in a nationwide poll held every five years.

The Bill stems from a resolution adopted at Zanu-PF's 2024 Annual People's Conference. Since then, debate has intensified over whether such sweeping amendments can be enacted without consulting voters through a referendum.

Zimbabwe's 2013 Constitution, adopted following a nationwide referendum and widely regarded as the product of broad political compromise, sets stringent conditions for amendments. Section 328 states that any change to presidential term limits that benefits an incumbent cannot take effect without approval in a referendum.

In October last year, before the Bill was crafted and gazetted, Nyambirai publicly argued that a referendum was not required to introduce a seven-year presidential term, even if the sitting President stood to benefit. Writing on his X account, he cited Sections 91, 95 and 328 of the Constitution in support of his interpretation.

However, just two days after the Bill was gazetted, Nyambirai revised his position, saying the proposed amendments, as currently framed, would likely trigger the need for a referendum under Section 328.

"If the summaries circulating are accurate, I struggle to see how the proposed changes could be effected without triggering a referendum under Section 328 of the Constitution," he said.

Nyambirai added that while previous debate focused largely on Section 328, little attention had been given to Section 158, which governs the timing of general elections. Section 158 requires that elections be held not more than 30 days before the expiry of the five-year period specified in Section 143, which fixes the life span of Parliament.

Although Section 158 may not itself be a term-limiting provision as defined in Section 328, Nyambirai argued that it provides constitutional grounds to challenge any attempt to extend tenure. He further maintained that Parliament's term, which runs concurrently with that of the President, cannot be extended without a referendum.

"As for Parliament, Section 143 is unequivocally term-limiting. Absent some genuine constitutional innovation, it is difficult to see how it could be amended without a referendum," he said.

Nyambirai suggested that he had previously assumed the Government might rely on the COVID-19 pandemic to introduce a narrowly tailored provision addressing lost time during the health crisis, rather than pursue broader structural changes.

His earlier legal opinion had been welcomed by some figures aligned to Zanu-PF, including self-exiled former Cabinet minister Jonathan Moyo, who publicly praised his interpretation at the time.

However, his latest stance has drawn mixed reactions. United States-based activist Freeman Chari mocked Nyambirai on social media, suggesting that the ruling party had relied on his earlier argument when shaping the Bill.

The debate over the proposed amendments is expected to intensify in the coming weeks as legal experts, political parties and civil society groups weigh the constitutional and political implications of altering Zimbabwe's supreme law without direct public approval.