Extending the Presidential Term-limit a Divisive Message

By Dr Masimba Mavaza

The constitution of Zimbabwe limits the number of times a person can be elected to the office of Zimbabwe President to two terms, and sets additional eligibility conditions for presidents who succeed to the unexpired terms of their predecessors.
The constitution prohibits anyone who has been elected president twice from being elected again. Under the constitution someone who fills an unexpired presidential term lasting more than two years is also prohibited from being elected president more than once. Scholars debate whether the amendment prohibits affected individuals from succeeding to the presidency under any circumstances or whether it applies only to presidential elections. Until the amendment’s ratification, the president had not been subject to term limits. If President Emerson Mnangagwa (the third president of Zimbabwe decides to run for a third term, this will establish a third term tradition. This is where the problem is. In the 1980s presidential elections, to 2017 Robert Gabriel Mugabe became the only president to be elected for a third and fourth to the seventh term, giving rise to concerns about a president serving unlimited terms.

Less than seven years have passed since the president was ushered in by the new dispensation but there are serious talks to break the constitution and to undo all which was built by President Mnangagwa.
Imagine 2028 when the nation has weathered another tumultuous five years under harsh economic conditions. Opposition and some ZANU PF members are desperate for the President Mnangagwa era, at long last, to be over. While others are praying for the era to be extended true supporters have relished it.
We have learnt that Around the globe, when rulers consolidate power through a cult of personality, they do not tend to surrender it willingly, even in the face of constitutional limits. The world is being introduced to a man who is trying to remain in office beyond his lawful tenure. This view on -i the President is wrong and must not be allowed to exist.
President Mnangagwa of course, already has set records straight and said he is not trying to remain in office beyond his lawful tenure.
“Anyone who says that obviously the constitution will deter them from trying for a third term has been living on a different planet than the one I’ve been living on, people can persuade the president but as a principled man and a constitutionalist this will not happen.
It’s the stuff of total nightmares and horrifying dreams by a third term campaigners. After all, the Constitution imposes an explicit two-term limit on the presidency. “No person shall be elected to the office of the President more than twice,” the constitution mandates.
Even those notorious for bending norms and breaking laws, couldn’t possibly circumvent that clear constitutional stricture, right.

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.  Even though the President has said publicly what he thinks of the idea, but it has aroused enough interest to make it worth examining the constitutional changes that would have to take place for the President to be allowed to serve a third term. The first point is that it is a. Recipe for disaster.
The first point to make is that the Constitution would need to be amended before the President could legally 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, 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.  There is no other option the Constitution would have to be amended to allow him to do so.

We must look clearly at the provisions of the Constitution which would need to be amended.
The starting point it to deal with section 91 which sets out the current presidential term-limit.  The amendment would clearly mean that we repeal 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).
The steps needed to amend section 91 are tabulated in section 328 of the Constitution: the precise terms” must be published by the speaker in the Gazette, and the amendment cannot be introduced in Parliament until 90 days after that publication. This is provided for by section 328(3). The 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 which is called 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, section 91 will be amended to allow a President to serve more than two terms in office.  

There is a catch, however:  the amendment will not apply to President Mnangagwa.
Section 328(7) of the Constitution
The reason why the amendment would not apply to President Mnangagwa lies in section 382(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 [Note: section 91(2) is 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.”
Put simply this means that an amendment to section 91 of the Constitution extending presidential term-limits 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 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.

To enable him to be elected for a third term, 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.
BUT after that, within three months after being passed, the Bill would have to be submitted to a national referendum and approved by a majority of the voters casting their votes.  This is set out in section 328(9) of the Constitution.

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 able to stand again for election, the following steps would have to be taken.    A Bill amending both section 91 and 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.
In Defence of Term Limits

The Constitution, then, makes it relatively easy to alter presidential term-limits so long as the government can muster two-thirds majorities in both Houses of Parliament, but makes it rather more difficult to extend those term-limits in order to benefit an incumbent President.  This is not an accident – it was deliberate.
Term-limits on the exercise of executive power are an important democratic check on the abuse of that power.  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. Already Energy Mutodi introduced a resolution to amend the Constitution in order to allow President Mnangagwa to seek a third term an effort that’s all but certain to fail, though the 2030 squad could try to test term limits through legal loopholes.
Mutodi introduced a motion that would amend the Constitution to allow a person to be voted as many times as possible. This is meant to replace the section which says no one can be “elected to the office of the President more than two times, nor be elected to any additional term after being elected to two consecutive terms,” those pushing for a third term are claiming that the move would “[ensure] that we can sustain the bold leadership our nation so desperately needs” by keeping president Mnangagwa in power.

The motion follows repeated comments Trump of USA suggesting he could want to stay in power for a third term, telling GOP lawmakers after his election, “I suspect I won’t be running again unless you say, ‘He’s so good we’ve got to figure something else out’” and telling members of the National Rifle Association, “Are we three-term or two-term if we win?” But the 2030 campaigners forget that we are not Americans.
The motion to amend the Constitution is virtually certain to fail: Even if it were to have support from a majority of lawmakers in the House and Senate, Constitutional amendments can only pass with a two-thirds majority in both chambers, which is highly unlikely given the serious murmuring by the people on the ground.
What we are achieving by all this is a serious divisions in the party. They can dream on but 2030 remains elusive and will never succeed.