Can the Presidential Term-Limit be Extended?

For well over a year the President has been urged by some sections of his party to stand for a third term in office after his current term expires in 2028.  The calls for him to remain in office culminated in a resolution at the party’s recent national conference in Mutare that the President’s term should be extended by two years to 2030, and that:

“The party and government are therefore directed to initiate the requisite legislative amendments to give full effect to this resolution to ensure continuity, stability and the sustained transformation of the nation.”

In this bulletin we shall examine what constitutional changes would have to take place for the President to be allowed to serve after 2028.

Would a Constitutional Amendment be Necessary?

The first point to make is that the Constitution would need to be amended before the President’s current term could be extended or the President could be allowed to serve another term in office.

According to section 91(2) of the Constitution:

“A person is disqualified for election as President or appointment as Vice-President if he or she has already held office as President 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.”

By the time of the next general election in 2028, President Mnangagwa will have served two full terms in office, so he will not be eligible to stand for election as President or Vice-President.  Hence, as we have said, the Constitution would have to be amended if he is to be allowed to do so.

One lawyer has suggested that the Presidential term might be extended from five years to seven years to enable Mr Mnangagwa to serve until 2030, but once again the Constitution would have to be amended to achieve this because section 95(1) fixes length of the President’s term of office at five years.

So whichever device is used to allow the President to remain in office, a constitutional amendment would be necessary.  Which provisions of the Constitution would need to be amended?

Amendment of Section 91

The first and most obvious amendment would be to section 91, which as we have seen sets out the current presidential term-limit.  The amendment would entail repealing section 91(2) (if it is decided to scrap presidential term-limits altogether) or changing the words “two terms” to “three terms”, “four terms” or however many terms a President will be allowed to serve (if it is decided to extend the number of terms rather than scrap the limits completely).

Amendment of section 95

If it is decided to lengthen the presidential term from five to seven years, then section 95(1) of the Constitution would have to be amended, because it provides that the length of the President’s term of office is:

“five years and coterminous with the life of Parliament”.

The words “five years” would need to be changed to “seven years” and the words “coterminous with the life of Parliament would have to be deleted unless the life of Parliament is also to be extended to seven years.  An extension of the life of Parliament would involve further constitutional amendments, this time to sections 143(1) and 158(1), which fix the life of Parliament at five years.

The steps needed to amend these section – i.e. sections 91, 95, 143 and 158 – are set out in section 328 of the Constitution:

• The Speaker must publish “the precise terms” of the proposed amendment in the Gazette, and the amendment cannot be introduced in Parliament until 90 days after that publication [section 328(3)].
• The staff of Parliament must immediately invite the public to comment on the proposed amendment, through written submissions and public hearings convened by Parliament [section 328(4)].  In practice these hearings are convened by the Portfolio Committee on Justice, Legal and Parliamentary Affairs, and written submissions from the public are sent to that Committee.
• The Bill containing the amendment must be passed by a two-thirds majority at its final reading [i.e. the Third Reading] in both the National Assembly and the Senate, and when the Bill is sent to the President for assent the Speaker and presiding officer of the Senate must certify that it has received the requisite majorities [section 328(5) and (10) of the Constitution].
• If these steps are taken, the Constitution will be amended to allow a President to serve more than two terms in office.  There is a catch, however:  the amendments will not apply to President Mnangagwa.

Section 328(7) of the Constitution

The reason why the amendments would not apply to President Mnangagwa lies in section 328(7), which was designed to make it difficult for incumbent office-holders (particularly Presidents) to extend their terms of office.  It states:

“Notwithstanding any other provision of this section, an amendment to a term-limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The phrase “term-limit provision” is defined in section 328(1) as meaning:

“a provision of this Constitution which limits the length of time that a person may hold or occupy a public office.”

Sections 91(2) and 95(2) are both term-limit provisions according to this definition.

What all this means, put simply, is that an amendment to section 91 or 95 of the Constitution extending the number of terms that a President can serve or increasing the length of presidential terms will apply only to future Presidents.  It will not allow an incumbent or past President to extend the period he may hold presidential office.  So if section 91 or 95 were amended by following the steps we outlined above, President Mnangagwa could not benefit from the amendment and could not legally be elected for a third term or continue serving an extra two years of his current term.

To enable him to be elected for a third term or to serve an extra two years, section 328(7) itself would have to be amended or repealed.  To do this, a Bill amending or repealing section 328(7) would have to go through all the steps we outlined above – the Bill would have to be published in the Gazette for 90 days, it would have to be passed by two-thirds majorities in the National Assembly and the Senate, and so on – and then, within three months after being so passed, the Bill would have to be submitted to a national referendum and approved by a majority of the voters casting their votes at the referendum.  This is set out in section 328(9) of the Constitution.  We might add that the referendum would have to be held in accordance with the principles set out in section 155 of the Constitution, which means it would have to be peaceful, free and fair and based on universal adult suffrage and equality of votes.

Summary of Procedure for Extending the Current President’s Term

To sum up the procedure that would have to be followed if the Government decided that President Mnangagwa should be allowed to stand again for election or that his current term should be extended, the following steps would have to be taken:

• A Bill amending section 91 and/or 95, as well as section 328(7) of the Constitution would have to be published in the Gazette for at least 90 days.
• Parliament would have to invite public comments, written and verbal, on the proposed amendments.
• The Bill would have to be passed by two-thirds majorities at its final readings in both the National Assembly and the Senate.
• Within three months the Bill would have to be put to a referendum and passed by a majority of the voters who cast their votes.

Circumventing The Constitution

• We said earlier that one lawyer has proposed getting round the need for a referendum by inserting a new provision in the Constitution stating that presidential terms last seven years, not five years.  This, he suggests, would not amend section 95(2) – which is a term-limit provision – and so would not require a referendum for it to apply to President Mnangagwa.  There are problems with this proposal:
• The word “amend” is defined very broadly in the Constitution, to include:  “vary, alter, modify, add to, delete or adapt”.  A new section fixing seven-year presidential terms would certainly vary, alter, modify or adapt section 95(2) – in fact, it would practically nullify it because while section 95(2) says presidential terms last for five years the new provision would say:  “No, actually they are seven years.”  Hence the new provision would amend a term-limit provision and so could not apply to the incumbent President unless it was approved at a referendum.
• More broadly, the new provision would have to be interpreted in the same way as any other provision of the Constitution, that is to say it would have to be given a purposive and contextual interpretation which gives expression to the underlying values of the Constitution.  Giving it a purposive interpretation, one would have to concede that the only purpose of the new provision would be to get round or circumvent section 328(7) of the Constitution – hardly a legitimate purpose.  One would have to concede, also, that the new provision would violate at least one underlying constitutional value, namely that term-limits cannot be extended so as to benefit incumbent office-holders – a value so important that it is specially entrenched like the Declaration of Rights.
• We might add that this same hurdle would be faced any other ingenious scheme to extend President Mnangagwa’s term without holding a referendum – it would violate the important constitutional value or principle that incumbents cannot benefit from an extension of term-limits – a value that can be abolished or altered only with the approval of a majority of voters voting in a referendum.

In Defence of Term Limits

Term-limits on the exercise of executive power are an important democratic check on the abuse of that power, and this has been recognised since the days of ancient Rome, when consuls held office for one year only.  If politicians know that their time in office will come to an end within a relatively short period, they are likely to moderate their conduct in order to avoid retribution when they cease to hold office.  They are more likely to treat colleagues and even political opponents with respect if they know that in a few years’ time those colleagues or opponents may be occupying their office.  The term-limits laid down in our Constitution are there for a very good reason.  They must not be altered lightly.

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