Constitutional lawyer Professor Lovemore Madhuku has insisted that there is no way the Constitution Amendment Bill Number 3 will escape a referendum, even before the "captured courts", which he says cannot be persuaded to go below the minimum in their adjudication standards.
The Bill proposes a series of changes including extending the presidential term from five years to seven, effectively concluding President Emmerson Mnangagwa's in 2030.
Mnangagwa's term is due to expire in 2028. Under the current constitutional provisions, particularly Section 328 of Zimbabwe's Constitution, an amendment that extends his term will require a referendum to allow the people to have a say by way of a secret ballot.
Section 328 serves of the Constitution establishes both procedural and substantive limits on constitutional changes. It sets out a two-track system: the first track allows for standard amendments that can be passed by Parliament with a two-thirds majority in both houses and a 90-day period of public notice; the second and more restrictive track triggers a mandatory referendum for protected provisions.
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Crucially, Section 328(7) states that a term-limit 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", a provision specifically designed to prevent any sitting president from benefiting directly from a term extension during their tenure.
The Bill further proposes introducing parliamentary-system elections, under which ordinary citizens would not directly vote for the President but only for Members of Parliament. MPs would then enjoy the privilege of electing the President.
Clause 3 of CAB3 explicitly replaces the direct election of the President with the parliamentary system, providing that "[t]he President shall be elected by Members of Parliament sitting jointly as the Senate and National Assembly".
Speaking recently on 'In Conversation with Trevor', Madhuku said claims that the courts are captured and will uphold Zanu PF's argument that there is no need for a referendum are unthinkable.
"The good news for Zimbabweans is that we will get a referendum on this one. They will avoid it. But for once the courts here they will order a referendum," Madhuku said.
"A referendum is a compromise. The courts must remain courts. They know that they can be abused by what they are doing. But there is a limit to which you can make the courts become not courts."
He added, "As a matter of law they cannot avoid a referendum because what they are doing, the amendment which they are making, which they want the current President and others to benefit from, is clearly an amendment of what is called a term limit.
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"I have listened to the arguments that they made that a term limit is a lengthening, is an election cycle. All these things will have to be explained in a court of law. I don't see a court of law agreeing with that view that they are expressing.
"A State institution like a court can be captured but there is a limit, there is always a minimum and I must emphasise, a minimum. So when you have courts, they will not allow you to take them below minimum. So an argument that says we don't need a referendum is a typical example of an argument that asks the court to go below the minimum".
Zimbabwe's Parliament is expected to start debating the controversial Bill next week. It is the same week the Constitutional Court will hear the case war veterans who are challenging the Bill as unconstitutional.
