Extending Zimbabwe's Presidential term of office

Extending Zimbabwe's Presidential and Parliamentary Terms of Office: A Contingent Term Length Provision, Not a Rigid Term Limit Cap

This insightful post by Tawanda Nyambirai adds critically valuable perspective to the ongoing debate on presidential term limits, sparked by Zanu-PF's resolution to extend the term from five to seven years (effectively from 2023 to 2030). 

The key insight from Nyambirai's analysis is that section 95(2)(b) of Zimbabwe's Constitution functions as a "default provision" rather than a true term-limit provision, as defined under section 328(1).

Nyambirai argues that section 95(2)(b), which sets the presidential term length, contains a lacuna—it acknowledges the possibility of alternative provisions elsewhere in the Constitution overriding the five-year default. Thus, the five-year term applies only in the absence of contrary stipulations, allowing Parliament to insert a new clause for a longer term without directly amending section 95 or violating section 328(7).

The logical conclusion from this is that section 95(2)(b) does not qualify as a term-limit provision under section 328(1), which defines such provisions as those limiting the length of time a person may hold public office through fixed, capped tenures.

While I fully agree with the core of Nyambirai's reasoning, a closer examination suggests section 95(2)(b) is a "contingent" provision without a genuine lacuna. This means it can be amended directly - without the need for an awkward insertion of a clause elsewhere - and still avoid the restrictions of section 328(7).

Consider the language of section 95(2)(b): the term "extends until" certain conditional events (e.g., resignation, removal, or election of a successor), "except as otherwise provided in this Constitution," and is coterminous with Parliament's life. These elements introduce inherent flexibility, not a fixed boundary. The phrase "extends until" implies variability based on events; the "except as otherwise provided" proviso allows for overrides; and coterminosity ties it to Parliament's potentially adjustable lifespan (e.g., via early dissolution under section 143(2)). Together, they make the endpoint of the presidential term of office indeterminate, distinguishing it from rigid term-limit provisions like section 186(2)'s non-renewable 15-year term for Constitutional Court judges.

This interpretation aligns with the Constitutional Court's decision in Marx Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Ors (CCZ 7/21, 2021), which differentiated fixed, determinable periods (true term limits) from non-specific or adjustable ones (e.g., age limits or conditional tenures).  The ConCourt deemed these to be "non-specific effluxions of time"—which are contingent and adjustable—thus falling outside term-limit protections.

As a result, amending section 95(2)(b) to extend the presidential term of office (e.g., from five to seven years) falls under section 328(5)'s standard parliamentary process, without requiring a referendum under section 328(7) for incumbents.

Section 95(2)(b)'s duration is thus a malleable single-term length, susceptible to political or procedural changes—consistent with the "effluxion of time" concept in Mupungu—rather than a capped limit. Extending it modifies a flexible framework, bypassing referendum requirements, unlike true term limits such as section 91(2)'s two-term cap.

Notably, section 91(2) itself—the actual presidential term-limit provision—sets only a minimum threshold: "three or more years" counts as a full term, with no upper cap on individual term length. 

It states: "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." 

The "or more" phrasing allows terms longer than three years (e.g., five, seven, or beyond), as determined by section 95(2). Amending that duration—within reasonable, justifiable bounds in a democratic society—requires only section 328(5)'s parliamentary approval, no referendum is needed.

To clarify: "term lengths" refer to the duration of a single term (e.g., five years), while "term limits" restrict the number of terms or total service (e.g., two terms max). Term limits govern re-eligibility with explicit caps, featuring clear start and end points. 

In constitutions without term limits such as Zimbabwe’s former Lancaster Constitution, only term lengths are specified, allowing unlimited re-elections subject to elections and eligibility rules. This "unlimited" aspect stems from silence on caps, not explicit provisions.

This distinction is evident when comparing Zimbabwe's pre-2013 Lancaster House Constitution with the current one. The former's section 63(1) ("Duration and dissolution of Parliament") set a five-year parliamentary term: "Parliament shall continue for five years from the date of its first sitting following a general election, unless sooner dissolved..." 

This mirrors section 143(1) of the 2013 Constitution: "Parliament is elected for a five-year term which runs from the date on which the President-elect is sworn in... and Parliament stands dissolved at midnight on the day before the first polling day in the next general election..."

Neither was nor is a term-limit provision; they simply and only define flexible durations or single term lengths, not term limits. A non-term-limit provision in the old Constitution doesn't transform into one in the new without explicit language. 

Term-limit provisions regulate "re-eligibility" and they do so by employing express language imposing an express limit or cap with a beginning point and an end point, which defines the limit or cap: they don't imply, suggest or infer such limits.

The interconnected flexibility of presidential and parliamentary terms—consistent across the old Lancaster and the new 2013 constitutions (except for the added cap in section 91(2) in the new)—is highlighted by the 2007 Constitution of Zimbabwe Amendment (No. 18) Act. Sections 3 and 14 shortened the Fifth Parliament's term (2005–2010) by two years to align with the President's 2008 end date (under a six-year term from Amendment No. 7 in 1987). Section 3 revised section 29(1): "The term of office of the President shall be a period of five years concurrent with the life of Parliament... or a lesser period where the President earlier dissolves Parliament... or a longer period where the life of Parliament is extended..."

Section 14 updated section 63(4): "Parliament, unless sooner dissolved, shall last for five years... Provided that, where the period... is extended... Parliament... shall stand dissolved on the expiration of that extended period."

These amendments demonstrate term lengths' historical adjustability for alignment, without constituting term limits or caps—a standard in constitutional democracies.

The pre-2013 Constitution lacked presidential term limits, allowing unlimited re-elections, with section 29(1) setting a six-year term: "The President shall hold office for a period of six years: Provided that the President shall continue in office until the person elected as President at the next election... assumes office." This was a single term length, not a term limit provision.

It was replaced by section 95(2)(b) in the 2013 Constitution, setting five years coterminous with Parliament. The old focus was solely on duration; the 2013 added a two-term cap in section 91(2), but without capping individual term lengths beyond the minimum of three years.

Comparatively, the U.S. Constitution's Article II, Section 1, Clause 1 (1788) set a four-year single term-lengths for the president without limits or caps: "He shall hold his Office during the Term of four Years..." Unlimited re-elections were possible until the 22nd Amendment (1951) added: "No person shall be elected to the office of the President more than twice..." The 1951 term limit left the four-year duration for a single term intact, separating term length from term limits—as did Zimbabwe in 2013.

The Mupungu precedent reinforces this: term-limit provisions impose fixed caps, requiring referendums under section 328(7) for incumbent extensions, while term-length provisions allow amendments via section 328(5), with no referendums. Zimbabwe's history and the U.S. example confirm sections 95(2)(b) and 143(1) are amendable single term lengths, not term limits that are subject to section 328(7)!