Tendai Ruben Mbofana
The filing of High Court case HCH1185/26 by Professor Talent Rusere marks a chilling and sophisticated escalation in the use of legal machinery to stifle democratic discourse in Zimbabwe.
If you value my social justice advocacy and writing, please consider a financial contribution to keep it going. Contact me on WhatsApp: +263 715 667 700 or Email: mbofana.tendairuben73@gmail.com
On the surface, the application presents itself as a quest for constitutional clarity, yet beneath the thin veneer of legalism lies a blunt instrument designed to decapitate public debate at the very moment it is most vital.
By seeking a prohibitory interdict against prominent political and civic figures to stop them from calling for a referendum on the Constitution Amendment Bill (No. 3) of 2026, Rusere is not merely arguing a point of law.
The application specifically targets heavyweights of the legal and political arena, including Tendai Biti, Jameson Timba, Lovemore Madhuku, Douglas Mwonzora, Job Sikhala, Jacob Ngarivhume, and Fadzayi Mahere, in a transparent attempt to decapitate the leadership of the pro-referendum movement.
Rusere is attempting to build a judicial wall around the legislative process, effectively insulating the state from the voices of the people it claims to serve.
The legal merit of the application rests on a narrow and arguably flawed reading of Section 328 of the Constitution.
Rusere contends that because Parliament has the power to amend Section 95, which dictates the five-year term of the President, and Section 143, which sets the five-year duration of Parliament, with a two-thirds majority, any public demand for a referendum is a “manipulation” of the law.
This argument conveniently ignores the foundational spirit of the 2013 Constitution, which was born from a people-driven process designed to prevent exactly what this Bill seeks to achieve.
While Section 328(5) outlines procedural requirements for standard amendments, the broader constitutional framework is concerned with the ultimate effect of any change.
Section 328(7) is clear and uncompromising: any amendment that has the effect of extending a term limit cannot benefit the person who held that office before the amendment was made.
The key term here is – “effect” or, in other words, the end result.
This is reinforced by Section 328(1), which provides a watertight definition of what constitutes a term limit.
According to this provision, a term limit is not merely defined by the number of terms a person may serve, but simply as the length of time that a person may hold or occupy any public office.
By this standard, shifting from five to seven years is not a mere administrative adjustment; it is an extension of the length of time in office, which triggers the non-benefit clause.
It does not matter which administrative sections of the Constitution the government chooses to tweak; if the end result – in this case, the “effect” – is that the President occupies office for a longer period and personally benefits from that extension, the law triggers an immediate safeguard.
To bypass this and allow an incumbent to benefit from an extended stay in power, the amendment process must involve a referendum as dictated by Section 328(9).
By focusing on the “how” while ignoring the “result,” Rusere’s application attempts to legally validate a circumvention of the people’s will.
By framing the demand for a referendum as “incitement to public disorder,” Rusere is asking the court to treat the exercise of a constitutional right as a criminal act.
The timing of this lawsuit is perhaps its most cynical feature.
It arrives precisely within the mandatory 90-day period during which Parliament is constitutionally required to consult the public.
This period is intended to be a season of robust, even heated, national conversation.
It is the time when Zimbabweans should be weighing the implications of moving from five-year to seven-year terms.
Instead, this lawsuit seeks to inject a paralyzing fear into that window of time.
If a professor can approach the High Court and label political advocacy as “bordering on acts of subversion and terrorism,” the message to the ordinary citizen in the village or the township is clear.
It tells them that expressing an opinion contrary to the state’s legislative agenda is a high-stakes gamble with their own liberty.
The real intent here is not to seek a legal ruling but to create a “chilling effect” that silences the street, the church, and the community hall before the public hearings even begin.
This is a direct assault on the basic freedoms of expression and assembly.
In a healthy democracy, the law is used to protect the space for disagreement.
In this instance, the law is being weaponized to shrink that space until it no longer exists.
By categorizing the call for a popular vote as an act of “prejudicing the State,” the Applicant is attempting to redefine the relationship between the citizen and the government.
He is suggesting that the State is a fragile entity that can be toppled by the mere suggestion of a ballot.
This rhetoric is dangerous because it provides a pseudo-legal justification for the state to use its coercive apparatus—the police and the military—to suppress what are essentially peaceful political disagreements.
If calling for a referendum is subversion, then the very concept of “government by the people” becomes a subversive idea.
The impact of this lawsuit on the legitimacy of the Constitution Amendment Bill (No. 3) cannot be overstated.
Legitimacy in constitutional law is not just about the numbers in a parliamentary chamber; it is about the “social contract” and the broad acceptance of the rules by the governed.
If this lawsuit succeeds in restraining the Respondents, and the Bill is subsequently passed into law in an environment of enforced silence, that law will forever be viewed as an illegitimate child of coercion.
It will not be a law of the people but a law of the decree.
For a constitutional amendment to hold weight, it must survive the fires of public scrutiny.
If it can only be passed by silencing its critics through the courts, it loses its moral authority.
A seven-year term won through the silencing of the opposition will be seen not as a mandate but as a legislative seizure of power.
Furthermore, the language used in the founding affidavit—employing terms like “terrorism” and “subversion” to describe legal advocacy—degrades the judicial process.
These are heavy, loaded words that belong in criminal indictments for violent acts, not in civil chamber applications regarding constitutional interpretation.
Using such language in the High Court is an attempt to bully the judiciary into seeing political opponents as enemies of the state rather than as litigants with a different viewpoint.
It places the presiding judge in an impossible position where a ruling for the Respondents could be framed as being “soft on subversion.”
This is a classic hallmark of “lawfare,” where the courts are used to achieve political ends that would be unpopular if pursued through the ballot box.
If the High Court grants the relief sought by Rusere, it will set a precedent that could effectively end the era of constitutionalism in Zimbabwe.
It would mean that any time the government proposes a controversial change, a private citizen or an organization can simply sue to prevent anyone from campaigning against it.
The 90-day consultation period would become a hollow ritual where people are allowed to speak, but only if they agree with the proposed changes.
This would turn the Constitution into a “dead letter”—a document that exists on paper but offers no real protection to the citizen against the whims of the powerful.
The ultimate tragedy of this lawsuit is that it undermines the very institution it claims to respect.
By dragging the High Court into a partisan attempt to stop a referendum push, the Applicant risks making the judiciary look like an extension of a political party’s legal department.
The legitimacy of the entire legal system is at stake when it is asked to banish political debate from the public square.
Zimbabweans have spent decades fighting for a document that protects their right to have a say in how they are governed.
Case HCH1185/26 is a direct attempt to claw back those gains and return the country to a state where the law is not a shield for the weak but a sword for the powerful.
My hope is that the court sees this application for what it is—not a quest for justice, but a pre-emptive strike against the democratic soul of the nation.
- Tendai Ruben Mbofana is a social justice advocate and writer. To directly receive his articles please join his WhatsApp Channel on: https://whatsapp.com/channel/0029VaqprWCIyPtRnKpkHe08