Law has no inherent value, buts its value is in compliance and honouring its sanctity, the idea that what is contracted is upheld and the contract’s rules are not shifted to suit sectarian interests. This too, goes for constitutions.
As the project to extend President Emmerson Mnangagwa’s term in office beyond two five-year terms to at least 2030 (Agenda 2030) gathers momentum — recently code-named “Resolution No 1” as the first of the resolutions adopted at the 2024 Zanu PF national people’s conference, those drawn to see things in legal terms will be quick to recourse to legal analysis.
Yet, with a captured Parliament subserviently serving executive interests; a co-opted and mightily corruptible pseudo-opposition; capacity, willingness and propensity to disregard the law and national interest, Zanu PF can indeed pass amendments to the constitution.
Evidently, recourse to this destructive agenda will not come from the law, but politics.
Let’s quickly dispense with the legalities.
Amending the constitution to remove, extend or suspend term limits can be done by a two-thirds majority vote in both the National Assembly and the Senate. No referendum is needed.
Zanu PF has the majority in the National Assembly but has no majority in Senate. But counting pseudo-opposition leader Sengezo Tshabangu’s CCC as Zanu PF votes, Zanu PF need not worry. Add to that, the corruptibility of the pseudo-opposition parliamentarians.
Parliamentarians would also be keen to have the life of Parliament extended, necessitating a revision of section 143(1) which mandates a 5-year term of Parliament, which five years commence running on the date a pPresident-elect is sworn in. Section 158 (timing of elections) must also then be amended as it mandates elections every 5 years and the holding of local authority elections to take place concurrently with presidential and parliamentary general elections.
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Amendments may thus be to either de-couple parliamentary and local elections and terms from the presidential elections and terms, or to, in the same vein, extend parliamentary and local government terms too.
Yet still, all these provisions (sections 91, 143(1) and 158) may simply have their provisions suspended for a determined period through an addendum to the constitution.
What requires a referendum is having that change in term limits or postponement of elections benefit the incumbent, per section 328(7) of the constitution.
This additional amendment is likely to be brought as a separate bill from the one amending the above sections, as a way to hedge risk. But with the Zimbabwe Electoral Commission firmly under its control, ZanuPF has little to be scared of.
There is another route, even more dubious: Zanu PF may not even go to a referendum but to the Constitutional Court and get a judgment in the same terms as they did in the 2021 Mupungu v Minister of Justice, Legal and Parliamentary Affairs and others judgment, wherein the incumbent Chief Justice Luke Malaba’s extended time in office was sustained, thanks to legal gymnastics in statutory interpretation.
The court decided that amendments to section 186 of the constitution on tenure of judges “taken in their totality, do not operate to amend any term-limit provision as contemplated by 328”.
Yet the chief justice is today on the bench, beyond what section 186 prior to the amendments allowed.
The people wanting to amend the constitution are not democrats and are willing to bend all manner of rules and procedure.
Substantively, changing terms limits goes against principles of limited government and democracy.
Thus, progressive nations of the world recognise what is known as ‘unconstitutional constitutional amendments’ or the ‘basic structure doctrine’, which states that certain parts of a constitution are so central to its fabric that they cannot be amended without mutilating its basic scheme.
Countries like India, Lesotho and Germany recognise this in their jurisprudence.
The Agenda 2030 amendments, even if procedurally passed, would thus still find constraints to pass the substantive legal test. But I cannot remotely think of any of our Constitutional Court judges upholding the basic structure doctrine.
The piercing reality is that law has lost its currency to guardrail Zimbabwe against destructive political manoeuvres.
This has a long genesis. Then Prime Minister Robert Mugabe in a Parliamentary address on 29 July 1982 infamously stated that “the government cannot allow the technicalities of the law to fetter its hands in what is a very clear task before it, to preserve law and order in the country […] We shall, therefore, proceed as government in a manner we feel is fitting […] and some of the measures we shall take are measures which will be extra-legal.” He and his government went on to take ‘extra-legal’ measures at every opportunity for decades, and Mnangagwa’s government now stands on firm foundations of precedence, aided by a pliable justice system.
A few weeks back, a colleague Tatenda Mashanda illuminatingly wrote an essay titled Courtroom politics: How lawyer-politicians are helping stall Zimbabwe’s progress in which he rightly criticises our judicialisation of politics.
I wrote to him with a re-joinder, albeit privately, stating that perhaps the prevalence of lawyers in our politics and them waging political battles in courts is a function of excessive use of lawfare and the use of instruments of law to wage politics by the rulers of the day. The point is made: there will be no salvation in the law from Agenda 2030.
This is not to say the law is vacuous of all utility, for the courts and other legal processes remain platforms to put issues on public record, and occasionally slow down political decay. But when it comes to power retention, only politics can match the hard politics played by the ruling party.
Now that we are done with the law, let’s talk the politics.
From indications based on developments at Mnangagwa’s Precabe Farm where Tshabangu essentially endorsed Mnangagwa’s Agenda 2030, and a state newspaper editorial, it is possible that the pseudo-opposition CCC will be used to move a motion in Parliament.
Mnangagwa’s Justice minister has already stated that “the will of the people will be given effect through the necessary amendments”, the ‘people’ being the Zanu PF people behind Resolution. No. 1.
The Justice minister has also stated that Zanu PF is readying itself for a referendum, all this while Mnangagwa makes likely insincere statements about being a constitutionalist and intending to abide by the term limits, yet mum at these pronouncements.
The remaining fragmented opposition made up of actors such as Douglas Mwonzora’s MDC, Lovemore Madhuku’s NCA, Jacob Ngarivhume’s Transform Zimbabwe and other fringe actors, have no political chance of mounting any notable resistance, more so in the face of a pseudo-opposition which is — for the time being until spit out soon — well-financed and powered by the state arsenal at its disposal, including the courts.
Civil society has great promise to organise, especially where opposition has been decimated and a pseudo-opposition has been propped up.
Yet today’s civil society exists in perhaps the most hostile of environments in the last two decades, with legal, political and administrative barriers thrown its way.
Then there is Sadc. A problem is brewing on the horizon, as Sadc gazes. Aside from Sadc’s general disengagement with the Zimbabwean question since the end of the government of national unity in 2013, and Sadc’s general disinterest or incapacity to resolve domestic political crises in member states especially on account of the former liberation party brotherhood, the aggressor in casu happens for now to be the chairperson of the subregional block. For years, Zimbabwe has also bullied Sadc countries into backing off on Zimbabwe questions.
Within Zanu PF, those who can see the looming danger in the trajectory have an opportunity now to stop this, and in all likelihood, absent an organic people-driven front of resistance, the factions within the party-military state provide the only real chance of successful resistance to Agenda 2030.
The Zimbabwe Heads of Christian Denominations in a statement called Agenda 2030 “overthrowing the constitution of the country”.
I have argued in the context of ongoing discussions within the African Union (AU) on unconstitutional changes of government (UCGs) that there are now new forms of UCGs.
While the AU’s Lomé Declaration on the framework for an OAU response to unconstitutional changes of government did not include manipulating elections and revising constitutions to prolong incumbency as forms of UCGs, these are truly forms of UCG.
No longer do UCGs happen only through coups. Article 23 of the African Charter for Democracy, Elections and Governance (ACDEG) extended the definition of UCG to include “Any amendment or revision of the constitution or legal instruments, which is an infringement of the principles of democratic change of government”. This was also reflected in the AU’s 2022 Accra Declaration on Unconstitutional Changes of Government in Africa which states the AU’s commitment to “Comprehensively address factors which lead to unconstitutional changes of government, including manipulation of democratic processes to tamper with constitutions and effecting amendments to electoral laws within a short span before the elections and without the consent of the majority of political actors and in violation of the stipulated national democratic principles, rules and procedures for constitutional amendment”. According to the African Peer Review Mechanism’s Africa Governance Report 2023 - Unconstitutional Change of Government in Africa, “This is key considering the high incidence of abusive constitutionalism used to facilitate UCG with incumbents seeking sanctuary in legal disguise, particularly through manipulative presidential term-limit amendments and various other forms of unconstitutional review of constitutions”.
Ordinary citizens, the people in whose name all these illegalities are conducted, retain the ultimate authority to determine which trajectory their constitutional project will go. With undemocratic changes to the constitution to extend power, Mnangagwa’s resultant reign will bear the hallmarks of an illegitimate, undemocratic, and unconstitutional regime.
There is sheer force of will and deep-seated personal interest around security and wealth, on the part of those pushing Agenda 2030, occasioned primarily by fear and the desire for self-preservation. Scared, butchered and battered as they are, the people must find it in their strength to resist this kind of degeneration.
As I have argued elsewhere, there would be situations where and when a wrong must be corrected by invoking the supremacy of the people as a collective to reclaim and withdraw their consent from the government. The people in their supreme collective remain the ultimate source of the authority to govern and the primary stockholders of the social contract.
Even the Universal Declaration of Human Rights captures the people’s right to ‘alter or abolish’ a government that acts against their common interests or threatens their safety without cause: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”. Long fatigued, demobilised and struggling to assert their agency, Agenda 2030 may yet be the unifying rallying call the people of Zimbabwe needed, an avoidable unintended consequence to the Agenda 2030 proponents.
Repugnant in its own right, Resolution No. 1 is part of a bigger project. Resolution No. 2 at the Zanu PF national peoples’ conference states that “The party and government should establish a comprehensive framework that ensures the operationalisation of the principle of party supremacy over government”. Zanu PF has always believed in a one-party state, even if its chief proponent Robert Mugabe is no more. This resolution is now a practical reintroduction of the one-party state thinking, already in place de facto with the decimation of the legitimate opposition. David Coltart correctly identified Resolution No. 2 as the most dangerous of all the resolutions adopted by Zanu PF, more dangerous than Resolution No. 1.
Term limits are the lifeblood of democracy and constitutionalism, for that is where limited government and departure from monarchy find expression. In the end, without political interventions and impediments, Resolution No. 1 will see the light of the day, but the consequences require no prophet to perceive or visionary to imagine. Here is a disaster in the making, and here and now is an opportunity to stop it in its tracks.
*Kika is a Zimbabwean human rights and constitutional lawyer and a jurist. He can be contacted at musakika@gmail.com
