Opinion / Columnist
David Coltart is profoundly wrong on referendums
3 hrs ago |
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The Constitution and Binding Case Law Permit Term of Office Extensions Without Referendums: A Rebuttal to David Coltart
The bald claim by David Coltart - that giving effect to Zanu-PF's October 2024 Resolution Number 1 to extend President Emmerson Mnangagwa's term of office by two years would necessitate two referendums under sections 328(6) – (9) of the Constitution of Zimbabwe (2013), as amended, is profoundly wrong.
[https://x.com/DavidColtart/status/1971881803846738244]
By conflating "term-limit provisions" (which cap re-eligibility of incumbents) with "term length provisions" or "terms of office," such as the one in section 95(2)(b), Coltart overlooks critical distinctions that allow for lawful amendments without referendums.
This fundamental misinterpretation ignores the binding precedent set by the Constitutional Court in Marx Mupungu v Minister of Justice, Legal and Parliamentary Affairs & 6 Ors (CCZ 7/21, 2021). In that case, the Court meticulously differentiated "term-limit provisions" from mere "term lengths," holding that amendments to durations or terms of office can be enacted solely through a two-thirds parliamentary majority under section 328(5), without invoking the referendum requirements of sections 328(6)– (9).
Coltart's assertion - that any extension of an incumbent's term of office demands two referendums - is unsupported by legal reasoning or case law, rendering it not only inaccurate but also dangerously misleading.
Far from being "disingenuous," as Coltart alleges in his post on X, the position that Zanu-PF's October 2024 resolution can be implemented via an amendment to section 95(2)(b) - extending the presidential term length or term of “office" - is firmly grounded in both constitutional text and case law. Such a change would only amend the duration of the “office" without touching the true or actual term-limit provision on the “officer" in section 91(2), which disqualifies a president from remaining in office after two terms.
This approach aligns perfectly with the constitutionally streamlined process in section 328(5), bypassing referendums entirely.
In the landmark Mupungu case, the Constitutional Court interpreted section 328(1)'s definition of a "term-limit provision" - "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office" - as requiring a fixed, specific, and determinable duration with explicit non-renewability or numerical maxima, like section 186(2)'s "non-renewable term of not more than fifteen years" for Constitutional Court judges.
Drawing on precise dictionary definitions, the Court contrasted a "term limit" (a bounded period with a clear start and end) from a "period" (a flexible span subject to contingencies). Age limits, like those extended from 70 to 75 in the Mupungu case, were deemed "non-specific effluxions of time" - contingent and adjustable - thus falling outside term-limit protections.
This ratio decidendi establishes a clear legal principle: Term-limit provisions safeguard against personal entrenchment through rigid caps (e.g., two presidential terms), requiring referendums for incumbent extensions under section 328(7).
In contrast, term length or term of office provisions - like age boundaries or institutional durations similar to those in sections 95(2)(b) and 143(1) - are malleable frameworks amendable without such hurdles, as they lack inherent finality and allow for equitable "continuation in office" for incumbents.
Applied to section 95(2)(b), the five-year presidential term of office is inherently variable: It "extends until" events like resignation, removal, or parliamentary dissolution, mirroring the contingent logic in the Mupungu case. This provision outlines the office's maximum framework (which is five years); it is not a personal cap on the President as a “public officer".
The Constitution's sole presidential term limit on the officeholder lies in section 91(2)'s two-term bar, which would remain untouched by a term length amendment to section 95(2)(b).
Amending section 95(2)(b) to seven years, for instance, would simply recalibrate this flexible duration, enabling the extension to 2030 via a two-thirds vote in each House in Parliament - free from the “dictates" of sections 328(6)– (9).
Coltart's reliance on the phrase "the effect of which is to extend" in section 328(7) misses the important guardrails in the Mupungu case: Referendums are triggered only by alterations to actual term-limit provisions - such as in section 91(2) - not alterations of variable term lengths - such as in section 95(2)(b). To claim otherwise risks constitutional distortion and subversion of binding case law, by blurring structural cycles with individual restrictions or term limits.
Crucially - and this should be underscored - section 95(2)(b) governs the "term of office," not the "term of the officer," which is governed by section 91(2).
If a president resigns after two years, his or her successor serves only the remaining three - not a full five. This underlines the office's contingent nature. The true "term of officer" limit appears solely in section 91(2), which caps re-eligibility of incumbents at two terms (with three or more years counting as a full term) but imposes no upper ceiling on term duration - allowing for four, five, seven, or more years as may be rationally and democratically justifiable. Recent examples abound: Guinea just adopted a seven-year presidential term on 21 September 2025, while Ireland has for decades maintained a seven-year presidential term capped at two terms.
Similarly, Parliament's five-year lifespan under section 143(1) applies to the institution, not individual MPs, who may serve partial terms, for instance, after by-elections. Unlike presidents, MPs face no term limits whatsoever, permitting lifelong service subject to other provisions governing their tenure in sections 121, 125 and 129. The often made claim that section 143(1) is a term limit provision on MPs is actually laughable.
Under the "always speaking" doctrine affirmed in the Mupungu case (paras 75–80), Zanu-PF's Resolution Number 1 poses no threat to section 328(7). Instead, it provides a pregnant constitution moment - that presents an opportunity for making progressive consequential constitutional reforms - and is specifically applicable to all incumbent past, present, and future; without the risk of self-dealing or favouritism.
Giving effect to the resolution would not be subversion but fidelity to the letter and spirit of the Constitution, ensuring a responsible evolution of democratic governance in response to intergenerational political imperatives.
In the circumstances, Coltart's alarmist narrative collapses under dispassionate and rational scrutiny. The Constitution of Zimbabwe, illuminated by the Mupungu case, empowers the legislature to amend presidential and parliamentary term lengths lawfully and democratically, without potentially divisive and destabilising referendums. To insist otherwise undermines the very legal framework and constitutionalism that citizens in a constitutional democracy must uphold, in the first instance!
The bald claim by David Coltart - that giving effect to Zanu-PF's October 2024 Resolution Number 1 to extend President Emmerson Mnangagwa's term of office by two years would necessitate two referendums under sections 328(6) – (9) of the Constitution of Zimbabwe (2013), as amended, is profoundly wrong.
[https://x.com/DavidColtart/status/1971881803846738244]
By conflating "term-limit provisions" (which cap re-eligibility of incumbents) with "term length provisions" or "terms of office," such as the one in section 95(2)(b), Coltart overlooks critical distinctions that allow for lawful amendments without referendums.
This fundamental misinterpretation ignores the binding precedent set by the Constitutional Court in Marx Mupungu v Minister of Justice, Legal and Parliamentary Affairs & 6 Ors (CCZ 7/21, 2021). In that case, the Court meticulously differentiated "term-limit provisions" from mere "term lengths," holding that amendments to durations or terms of office can be enacted solely through a two-thirds parliamentary majority under section 328(5), without invoking the referendum requirements of sections 328(6)– (9).
Coltart's assertion - that any extension of an incumbent's term of office demands two referendums - is unsupported by legal reasoning or case law, rendering it not only inaccurate but also dangerously misleading.
Far from being "disingenuous," as Coltart alleges in his post on X, the position that Zanu-PF's October 2024 resolution can be implemented via an amendment to section 95(2)(b) - extending the presidential term length or term of “office" - is firmly grounded in both constitutional text and case law. Such a change would only amend the duration of the “office" without touching the true or actual term-limit provision on the “officer" in section 91(2), which disqualifies a president from remaining in office after two terms.
This approach aligns perfectly with the constitutionally streamlined process in section 328(5), bypassing referendums entirely.
In the landmark Mupungu case, the Constitutional Court interpreted section 328(1)'s definition of a "term-limit provision" - "a provision of this Constitution which limits the length of time that a person may hold or occupy a public office" - as requiring a fixed, specific, and determinable duration with explicit non-renewability or numerical maxima, like section 186(2)'s "non-renewable term of not more than fifteen years" for Constitutional Court judges.
Drawing on precise dictionary definitions, the Court contrasted a "term limit" (a bounded period with a clear start and end) from a "period" (a flexible span subject to contingencies). Age limits, like those extended from 70 to 75 in the Mupungu case, were deemed "non-specific effluxions of time" - contingent and adjustable - thus falling outside term-limit protections.
This ratio decidendi establishes a clear legal principle: Term-limit provisions safeguard against personal entrenchment through rigid caps (e.g., two presidential terms), requiring referendums for incumbent extensions under section 328(7).
In contrast, term length or term of office provisions - like age boundaries or institutional durations similar to those in sections 95(2)(b) and 143(1) - are malleable frameworks amendable without such hurdles, as they lack inherent finality and allow for equitable "continuation in office" for incumbents.
The Constitution's sole presidential term limit on the officeholder lies in section 91(2)'s two-term bar, which would remain untouched by a term length amendment to section 95(2)(b).
Amending section 95(2)(b) to seven years, for instance, would simply recalibrate this flexible duration, enabling the extension to 2030 via a two-thirds vote in each House in Parliament - free from the “dictates" of sections 328(6)– (9).
Coltart's reliance on the phrase "the effect of which is to extend" in section 328(7) misses the important guardrails in the Mupungu case: Referendums are triggered only by alterations to actual term-limit provisions - such as in section 91(2) - not alterations of variable term lengths - such as in section 95(2)(b). To claim otherwise risks constitutional distortion and subversion of binding case law, by blurring structural cycles with individual restrictions or term limits.
Crucially - and this should be underscored - section 95(2)(b) governs the "term of office," not the "term of the officer," which is governed by section 91(2).
If a president resigns after two years, his or her successor serves only the remaining three - not a full five. This underlines the office's contingent nature. The true "term of officer" limit appears solely in section 91(2), which caps re-eligibility of incumbents at two terms (with three or more years counting as a full term) but imposes no upper ceiling on term duration - allowing for four, five, seven, or more years as may be rationally and democratically justifiable. Recent examples abound: Guinea just adopted a seven-year presidential term on 21 September 2025, while Ireland has for decades maintained a seven-year presidential term capped at two terms.
Similarly, Parliament's five-year lifespan under section 143(1) applies to the institution, not individual MPs, who may serve partial terms, for instance, after by-elections. Unlike presidents, MPs face no term limits whatsoever, permitting lifelong service subject to other provisions governing their tenure in sections 121, 125 and 129. The often made claim that section 143(1) is a term limit provision on MPs is actually laughable.
Under the "always speaking" doctrine affirmed in the Mupungu case (paras 75–80), Zanu-PF's Resolution Number 1 poses no threat to section 328(7). Instead, it provides a pregnant constitution moment - that presents an opportunity for making progressive consequential constitutional reforms - and is specifically applicable to all incumbent past, present, and future; without the risk of self-dealing or favouritism.
Giving effect to the resolution would not be subversion but fidelity to the letter and spirit of the Constitution, ensuring a responsible evolution of democratic governance in response to intergenerational political imperatives.
In the circumstances, Coltart's alarmist narrative collapses under dispassionate and rational scrutiny. The Constitution of Zimbabwe, illuminated by the Mupungu case, empowers the legislature to amend presidential and parliamentary term lengths lawfully and democratically, without potentially divisive and destabilising referendums. To insist otherwise undermines the very legal framework and constitutionalism that citizens in a constitutional democracy must uphold, in the first instance!
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