HARARE – Zanu PF secretary for administration Obert Mpofu last week raised the prospect that the party could change the country’s constitution to remove the presidential term limits clause.
The amendment, he said, would make President Emmerson Mnangagwa eligible to seek a third term, should he win in 2023 heading into the next election in 2028.
“Mr President, you can go beyond 2028 if you so wish because the issue of law can be taken care of in parliament,” Mpofu said on November 27, speaking at a Zanu PF youth convention in Kadoma.
Mnangagwa, speaking shortly after, appeared to back Mpofu when he told cheering supporters: “We can change the laws… there is nothing that we want that cannot be done because we command two-thirds majority in parliament.”
The legal watchdog Veritas says while Zanu PF can remove the term limit clause through a constitutional amendment, Mnangagwa cannot be a beneficiary.
Here is the legal position, according to Veritas:
The Constitution and Presidential Term Limits
Section 95 of the Constitution states that the President’s term of office begins when he or she is sworn in and extends ‒ normally for five years ‒ until the next election when he or she is re-elected or a new President is elected.
Section 91(2) of the Constitution imposes a two-term limit by providing that a person is disqualified for election as President:
“if he or she has already held office as President under this Constitution 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.”
So under the Constitution Presidents cannot serve more than two terms in office, so long as each of those terms lasts three or more years. Hence, to give an example, if a Vice-President were to take over from a President who dies or resigns after four years in office, the Vice-President could be re-elected for two further five-year terms because the one year during which he or she served out the remainder of the former President’s term would not count for the purpose of section 91(2).
Putting this into the present context, after succeeding Robert Mugabe in November 2017 President Mnangagwa served out the eight remaining months of Mugabe’s term and then was elected in July 2018 for a five-year term. The eight months do not count for the purposes of section 91(2) so he is eligible to be re-elected for a further five-year term in 2023. In 2028, however, after serving two full terms he will not be eligible for re-election for another term as President.
Can this constitutional position be changed?
Amendment of Constitutional Term Limits
Under section 328(5) of the Constitution, a Bill to amend the Constitution must be passed by a two-thirds majority of the National Assembly and the Senate before it becomes law. In addition, if the Bill seeks to amend the Declaration of Rights or Chapter 16 (which relates to agricultural land) it must be approved at a national referendum before it can become law.
Section 91(2) is not part of the Declaration of Rights nor does it fall within Chapter 16 of the Constitution, so it can be amended by a two-thirds majority of both Houses of Parliament to remove the presidential term-limits.
There is a catch, however. Section 328(7) of the Constitution provides that an amendment to a term-limit provision ‒ and section 91(2) is a term-limit provision ‒ which has the effect of extending the length of time that a person can hold a public office such as the presidency does not apply to anyone who held that office, or an equivalent office, before the amendment. This means that even if two-thirds of the members of Parliament were to pass a Bill extending or revoking the term limits imposed by section 91(2) of the Constitution, the Bill would not permit President Mnangagwa to stand for a third term in office.
The only way to permit him to stand for a third term would be to repeal section 328(7), but this would require a national referendum in addition to a two-thirds majority in Parliament: see section 328(9).
Conclusion
So the presidential term limit imposed by section 91(2) of the Constitution can be extended or abolished altogether by a Constitution amendment Bill passed by two-thirds of the members of Parliament. Such a Bill would not, however, permit President Mnangagwa to stand for a third term unless in addition it was approved at a national referendum.
