ConCourt's benign Mupungu oversigh

ConCourt's Benign Mupungu Oversight: Including Section 95(2) in Its List of 10 Term-Limit Examples Proves It's Not One: Since the gazetting of the Constitution of Zimbabwe (Amendment No. 3), H.B. 1, Bill, 2026 on 16 February 2026, a thoughtful and sometimes passionate public conversation has unfolded about the proper way to amend the supreme law of the land. At the centre of much of the debate stands section 95(2), the provision that simply sets the length of each "Term of office of President" at five years and makes it coterminous with the life of Parliament. Some commentators have argued forcefully that any change to this provision would amount to altering a "term-limit provision," thereby automatically requiring a national referendum under section 328(7). 

This view, though sincerely held, rests on a single sentence in the Constitutional Court's 2021 judgment in Mupungu v Minister of Justice, Legal and Parliamentary Affairs & 6 Others (7 of 2021) [2021] ZWCC 7. A careful and respectful reading of the text of that judgment shows that the claim cannot be sustained.

The Constitutional Court did include section 95(2) in an illustrative list of ten examples of term-limit provisions. That inclusion was a benign and entirely understandable oversight — a minor slip in an otherwise meticulous and persuasive analysis. Far from proving that section 95(2) enjoys referendum protection, the Court's own definitions and logic demonstrate the opposite with compelling clarity. 

Section 95(2)(b) is not a term-limit provision within the meaning of subsections (1) and (7) of section 328. Amending it is a permissible ordinary constitutional amendment under section 328(5), which does not require a referendum.

This conclusion is not a technical or political quibble. It goes to the heart of how the Constitution balances two vital democratic goals. On one hand, it erects strong safeguards against the indefinite concentration of power by protecting genuine term limits with the solemn requirement of a referendum. On the other hand, it rationally allows Parliament to amend the electoral cycle and governance without triggering a referendum. Misclassifying a simple term-length provision as a protected term limit provision upsets the balance. 

The framers of the Constitution understood this distinction. The Constitutional Court's reasoning in Mupungu reinforces it. Section 95(2) is the odd one out in the Court's list; the outlier whose place should logically have been occupied by section 91(2), the actual term limit provision that caps any individual's tenure and total service as President.

To understand this, requires an examination of the Court's judgment in detail, beginning with reproduction in full of the very passage that has given rise to the misunderstanding, at paragraph 50, p. 50 of the Mupungu judgment:

"By way of contrast, the Constitution abounds with a myriad of provisions that unquestionably constitute specific term limit provisions within the parameters of s 328. First and foremost, there is s 95(2) which expressly stipulates that the term of office of the President is 5 years and coterminous with the life of Parliament. Then there is s 197 which provides that an Act of Parliament may limit the terms of office of chief executive officers or heads of government-controlled entities and public enterprises owned or wholly controlled by the State. Again, in terms of s 205(2), the term of office of a Permanent Secretary is a period of up to 5 years and is renewable once only. As regards the Defence Forces, s 216(3) states that the Commanders of the Defence Forces and their services are appointed for a term of not more than 5 years, up to a maximum of two terms. With reference to the Police Service, the intelligence services and the Prisons and Correctional Service, s 221(2), s 226(2) and s 229(2) provide that the respective heads of these services are appointed for a 5-year term which may be renewed once only. Next there is s 238(5), which stipulates that members of the Zimbabwe Electoral Commission are appointed for a 6-year term and may be re-appointed for one such further term. Similarly, by virtue of s 259(4), the term of office of the Prosecutor-General is a period of 6 years and is renewable for one further such term. Finally, s 310(3) provides that the term of office of the Auditor-General is a period of not more than 6 years, up to one or more periods not exceeding 12 years".

ConCourt's Application of Dictionary Meaning of "Term Limit" in Mupungu

Although the inclusion of section 95(2) at the head of the list was a benign oversight, Patel JCC's reasoning rests on firm foundations. The judge deliberately chose the ordinary, grammatical meaning of the words "term limit," drawing directly from authoritative dictionaries, especially the Oxford English Dictionary. This approach is both accessible and constitutionally sound. It avoids judicial invention and anchors the interpretation in language that every citizen can understand.

According to these standard dictionaries, a "term" is a fixed or limited period of time for which something lasts — a president's term in office, a school term, a pregnancy reaching full term. It is a defined interval with a clear beginning and a determinable end. A "term limit," by contrast, is not merely the length of one term; it is "a legal restriction on the number of terms, or consecutive terms, that the holder of a particular office may serve." The essential ingredient is restriction — an enforceable rule that sets a maximum limit on how long any one person may occupy the office.

This dictionary definition aligns perfectly with the Constitution's own wording in section 328(1): "‘term-limit provision' means a provision of this Constitution which limits the length of time that a person may hold or occupy a public office." Section 328(7) adds a crucial restriction for sitting office-holders: any amendment to a genuine term-limit provision that would extend personal tenure cannot apply retroactively to those already in office.

From this foundation the Court drew a bright line. Only provisions that genuinely cap or limit a person's total service qualify. Section 91(2) meets this standard with unmistakable clarity: it disqualifies any person who has already served two terms as President, treating "three or more years" as a full term. This is a true cumulative limit — an ironclad boundary that no individual may cross. It promotes renewal, prevents entrenchment of power, and embodies the democratic ideal that no one is indispensable.

Section 95(2)(b), however, falls on the other side of the line. Its text is straightforward: "The term of office of the President extends until—following an election, he or she is declared to be re-elected or a new President is declared to be elected; and, except as otherwise provided in this Constitution, his or her term of office is five years and coterminous with the life of Parliament." 

This provision performs a different function entirely. It is contingent — its exact end date cannot be known in advance with certainty until an election occurs. Most importantly, it does no more than fix the length of each single term. It contains no disqualification, no renewal cap, no total-service ceiling, and no restriction on the number of terms or length of time one person may serve.

Standing alone, section 95(2)(b) would permit indefinite re-election. Only when read together with section 91(2) does the Constitution create an overall term limit on personal tenure.

The Court's dictionary-driven distinction is therefore decisive. A provision that merely amends the duration or length of the electoral cycle does not "limit the length of time that a person may hold or occupy" the office in the sense required by section 328. Amending the five-year period in section 95(2)(b) changes the electoral timetable; it does not extend any individual's personal tenure. The Constitution itself insists on this rigorous textual clarity. 

To treat section 95(2) as a protected term limit provision would stretch the referendum safeguard beyond the clear intention of the framers and would blur the very distinction that section 328 is designed to maintain.

Applying the Aristotelian Method of Genus and Differentia

For readers familiar with the great works of political science, the Court's approach echoes a classical method of logical definition refined by Aristotle more than 2,000 years ago. 

In the "Politics" and other works, Aristotle taught that true understanding comes from identifying the broad genus (the general category to which something belongs) and then the differentia (the specific features that distinguish it from other members of the same genus). This method brings unmatched precision and has guided scientific thought ever since.

Applying it here confirms the conclusion with the force of finality. Under section 328(1), the genus is simple and uncontroversial: "a provision of this Constitution." The differentia, however, is demanding: the provision must actively limit or cap the length of time that a person may hold or occupy a public office through disqualification, renewal caps, or a cumulative or maximum ceiling.

The resulting test is biconditional: common genus plus similar differentia equals a term-limit provision. If the differentia is missing, the provision cannot qualify as a term limit, however much it might resemble other provisions in the broad genus.

Section 91(2) perfectly satisfies both elements. It belongs to the Constitution and supplies the required differentia by expressly disqualifying persons who have served two terms. Section 95(2)(b) meets only the genus. Yes, it is a constitutional provision, but it offers no differentia at all — no limit, no disqualification, no cumulative or maximum service cap. It simply defines the length of each term. Under the Aristotelian logical framework, it therefore falls outside the protected class.

This is not abstract theory. The Aristotelian method protects the Constitution from over-expansion of the referendum requirement. Without it, every amendment to parliamentary sessions, judicial retirement ages, or electoral timetables could be argued to need a national referendum. The Aristotelian lens ensures that only provisions genuinely aimed at preventing indefinite personal tenure receive the referendum protection.

Essential Features of a Term Limit Provision

Three essential features flow directly from the Court's reasoning and the constitutional text. Every genuine term-limit provision shares them:

First, a "term limit provision" must concern the personal tenure of the individual office-holder, not an office's electoral cycle which can be served by successive officeholders; tenure measures the total time a person may lawfully occupy an office.

Second, it must expressly state a maximum or cumulative length of time a person may occupy an office.

Third, it must contain disqualifying language — like "non-renewable," "renewable once only," "not more than," "not exceeding," or equivalent — that creates a clear, enforceable boundary.

At paragraph 51, p. 51 of the Mupungu judgment the Court itself emphasised this "tenure" point when it held, regarding its 10 examples of term limits, that:
"As is self-evident, the tenure of all of the aforementioned public offices is undoubtedly subject to a specific "term-limit provision" within the meaning of s 328(1)."

The word "tenure" is decisive. It refers to one person's total service. Nine of the 10 provisions listed in paragraph 50, p. 50 of the Mupungu judgment satisfy all three features. Section 197 authorises Parliament to impose limits on chief executives. Sections 205(2), 221(2), 226(2) and 229(2) each allow renewal "once only." Section 216(3) caps defence commanders at "a maximum of two terms." Sections 238(5) and 259(4) permit "one such further term." Section 310(3) limits the Auditor-General to "not exceeding 12 years" total. Each uses clear disqualifying language and caps personal tenure.

But section 95(2) alone does not, (see Second Attachment, left to right). It addresses only the institutional five-year cycle and contains none of the required limiting features of term limit provisions. That is why the Attorney-General's authoritative list of 15 genuine term-limit provisions (see First Attachment, on the left) correctly excludes section 95(2).

The ConCourt's benign oversight now stands revealed.

When the Court moved from listing examples to speaking of "tenure," section 95(2) no longer sat comfortably. A more internally consistent list would have begun with section 91(2). The Court's inclusion of section 95(2) was a small classificatory slip — understandable in illustrative obiter dicta, but legally inconsequential. It cannot transform a straightforward term-length provision into a referendum-protected "term limit provision" that the framers never created.

Conclusion
Drawing together the Constitutional Court's dictionary-based method, the classical Aristotelian logic of genus and differentia, the three essential features that define authentic term limits, and the Attorney-General's careful classification, the conclusion is clear, logical, and compelling: Section 95(2)(b) is not a term-limit provision within the meaning of subsections (1) and (7) of section 328.

Unpacking the Constitution of Zimbabwe Amendment Bill.

The Office of Attorney-General has released this list to assist in the process of unpacking the Constitutional Amendment Bill( no 3 /26) pic.twitter.com/LWQj6J2nV4

— Office of the Attorney-General of Zimbabwe (@AGZim_Official) February 18, 2026

As a provision that does nothing more than prescribe the length of a single term of office — an electoral cycle — section 95(2) does not regulate any person's personal tenure. It imposes no restriction, no disqualification, no non-renewal rule, and no total service ceiling. Amending it is therefore an ordinary amendment to the Constitution under section 328(5) and does not require a national referendum.

Zimbabwe's Constitution is a carefully crafted instrument of democratic governance. It wisely protects genuine "term limit provisions" with the safeguard of a referendum because those limits are fundamental to preventing the indefinite hold on power. At the same time, the Constitution treats practical provisions about the duration or length of parliamentary and presidential terms of office as matters that Parliament may adjust through the normal amendment process. Section 95(2)(b) belongs squarely in this second category.

Most democratic constitutions wisely separate the two categories which serve complementary but fundamentally different functions: one defining the term of office and electoral cycle (such as section 95(2)(b)), and the other imposing term limits with disqualification mechanisms (such as section 91(2)). These must never be conflated, for each fulfils a unique and critical role in democratic governance.

Notably, other jurisdictions integrate the two categories elegantly. For example, Chile's Article 25 states: "The President of the Republic shall hold office for a term of four years and may not be re-elected for the following period"; France's Article 6: "The President of the Republic shall be elected for a term of five years by direct universal suffrage. No one may carry out more than two consecutive terms of office"; while South Korea's Article 70 provides: "The term of office of the President shall be five years, and the President shall not be re-elected."

Zimbabwe separates the two categories. The separation is an act of fidelity to the supreme law of the land. It honours the precise design of the framers, strengthens the meaningfulness of the referendum safeguard for the provisions it was truly intended to protect, and ensures that Zimbabwe's democracy remains both stable and adaptable. The constitutional text, the Court's own reasoning, and simple logic all point in one direction. No national referendum is required. The Constitution itself demands nothing less than this honest, text-based reading!