Introduction
Constitutions allocate and limit public power, protect fundamental rights and establish the framework within which governments govern and people hold them accountable. Their legitimacy depends not only on what they say, but also on how they are amended. When constitutional amendments are hurried, clumsily drafted or driven by narrow political interests, it is not only the constitutional text that suffers. The public’s confidence in constitutional governance is also diminished.
The Constitution of Zimbabwe Amendment (No. 3) Bill (Bill) illustrates that danger. The Bill proposes several changes to the Zimbabwean Constitution including extending the presidential term from five to seven years and allowing that extension to benefit the incumbent.
The Bill has secured the required two-thirds majority in both Houses of Parliament. Following the National Assembly’s approval of the Senate’s amendments on 30 June 2026, the Bill is expected to be presented to the President for assent. In terms of section 131(5) of the Constitution, the Speaker must present the Bill to the President without delay and give public notice of the date on which it was transmitted.
The Bill raises a fundamental constitutional question that extends beyond the wisdom of the proposed amendments themselves. The central issue is whether Parliament may achieve through legislative drafting what the Constitution requires to be done through the constitutional amendment procedure it expressly prescribes.
The constitutional difficulty at the heart of the Bill
The principal constitutional difficulty presented by the Bill is not merely that it extends the incumbent President’s tenure. It is that the Bill attempts to circumvent the constitutional amendment procedure prescribed by the Constitution itself.
Section 328(7) provides, in mandatory language, that an amendment extending the length of time that a person may hold public office ‘does not apply’ to anyone who held that office before the amendment. The provision was included in the 2013 Constitution to prevent incumbents from altering constitutional rules in order to prolong their own tenure.
If Parliament genuinely wished to permit an incumbent President to benefit from an extension of presidential tenure, the Constitution already prescribed the lawful route. It would first have to amend section 328(7), thereby removing or modifying the constitutional prohibition. However, section 328(9) provides that section 328 itself may be amended only by following the procedures set out in subsections (3), (4), (5) and (6). Those procedures include approval through a national referendum. The effect is that any amendment to section 328, including subsection (7), must be subjected to a referendum before it can become law.
The constitutional architecture is therefore deliberate. The framers recognised that incumbents might one day seek to alter the constitutional rules governing their own tenure. They responded by entrenching section 328 itself, ensuring that Parliament alone could not dismantle those safeguards.
The current Bill does not follow that constitutional path. Rather than amend section 328(7), which would inevitably trigger the referendum requirement under section 328(9), it leaves the subsection textually intact while inserting a new provision declaring that, ‘notwithstanding section 328(7),’ the extended presidential term shall apply to the continuation in office of the incumbent President.
That is not innovative drafting. It is an attempt to circumvent the constitutional amendment procedure itself. Constitutional supremacy does not permit Parliament to obtain indirectly what the Constitution requires to be done directly.
The drafting technique cannot disguise the Bill’s constitutional effect. In substance, it achieves precisely what a formal amendment to section 328(7) would have achieved. The only difference is that it seeks to produce that result without complying with the constitutional procedures that the Constitution expressly prescribes. It is, in effect, an attempt to amend section 328(7) without amending it.
The Minister of Justice has consistently argued that the Bill preserves the existing two-term limit. With respect, the constitutional issue is not whether the President remains limited to two terms. It is whether an incumbent may lawfully benefit from an extension of the length of those terms despite the express prohibition contained in section 328(7), while simultaneously avoiding the constitutional procedures required to alter that safeguard.
That is the constitutional defect at the heart of the Bill. Constitutional safeguards cannot be neutralised through legislative drafting. Parliament cannot avoid the amendment procedure prescribed by section 328(9) simply by leaving section 328(7) formally intact while depriving it of legal effect.
Parliament’s failure to protect the Constitution
The ease with which the Bill passed through Parliament despite this apparent constitutional defect is very concerning.
In constitutional democracies founded on constitutional supremacy, such as Zimbabwe, legislatures are more than political institutions responsible for assembling majorities. They are constitutional institutions entrusted with safeguarding the supreme law. Their responsibility is not merely to enact legislation, but to ensure that the laws they pass are consistent with the Constitution.
Measured against that standard, Parliament appears to have fallen short of its constitutional responsibility. A Bill containing provisions that appear to conflict directly with express constitutional safeguards passed both Houses.
The outcome shows that constitutional fidelity was subordinated to political expediency. Yet constitutional democracies depend upon legislatures serving as the first line of defence against unconstitutional law-making. The primary allegiance of Members of Parliament must be to the Constitution rather than to incumbent office holders or transient political interests.
It must be repeated that constitutional majorities do not necessarily produce constitutional outcomes. Constitutionalism exists precisely because even overwhelming political majorities remain subject to constitutional limits. The parliamentary support for Zimbabwe’s Constitution Amendment Bill should therefore not be confused with constitutional legitimacy.
Where to now?
As indicated above, the Bill is expected to be presented to the President for assent.
After receiving the Bill, section 131 of the Constitution then affords the President twenty-one days within which to decide how to proceed.
The President may assent to the Bill, sign it and cause it to be published in the Gazette, whereupon it becomes law. Equally, if he considers the Bill unconstitutional, or has any other reservations about it, section 131(6)(b) authorises him to return it to Parliament together with detailed written reasons requesting that it be reconsidered.
The Constitution does not permit Parliament simply to disregard those objections. The National Assembly must either amend the Bill to accommodate the President’s reservations or pass it again by a two-thirds majority of its total membership. The Bill is then returned to the President.
This is where one of Zimbabwe’s least discussed, yet potentially most significant, constitutional safeguards comes into operation.
If the President continues to harbour constitutional reservations after Parliament has reconsidered the Bill, section 131(8), read together with section 110(2)(b) of the Constitution, gives him two options. He may nevertheless assent to the Bill despite those reservations. Alternatively, he may refer it to the Constitutional Court for advice on its constitutionality.
If the Court advises that the Bill is constitutional, section 131(9) requires the President to assent to it immediately. If it concludes otherwise, Zimbabwe will be spared the consequences of enacting legislation inconsistent with its supreme law and the constitutional uncertainty that would inevitably follow.
This safeguard assumes particular importance because the Bill raises legal questions that extend well beyond ordinary political disagreement.
A referendum cannot cure constitutional circumvention
From the outset, there have been calls for the Bill to be subjected to a referendum. Those calls are understandable. Amendments of this constitutional significance naturally raise questions of direct democratic legitimacy.
The issue in the present case, however, is not simply whether a referendum should be held. It is whether the Bill is constitutionally capable of proceeding in its present form.
As pointed out above, the Constitution itself already prescribes the constitutional route for permitting an incumbent to benefit from an extension of tenure. Parliament would first have to amend section 328(7). Because section 328(9) requires any amendment to section 328 to comply with the procedures in section 328(6), that amendment would necessarily require approval through a referendum.
The Bill deliberately avoids that constitutional pathway. The issue, therefore, is not whether the Constitution permits a referendum. It is whether Parliament may avoid the constitutional route that would have required one.
A referendum cannot cure that constitutional defect.
Indeed, if the Bill were approved in a referendum in its present form, section 328(6)(b) would require the President to assent to it forthwith. That is precisely why the constitutional question should be resolved through the mechanism provided by section 131.
Conclusion
Zimbabwe is facing a constitutional crisis. The question is no longer whether the Bill has political support. The real question is whether Parliament may lawfully avoid the constitutional amendment procedure prescribed by the Constitution itself.
The answer is that the Constitution does not permit Parliament to avoid the constitutional amendment procedure prescribed by the Constitution itself.
The Constitution anticipated attempts by incumbents to benefit from extensions of tenure and entrenched section 328 against such manipulation. It requires that any alteration of those safeguards be undertaken openly, in accordance with the constitutional amendment procedures, and ultimately with the approval of the people through a referendum. The Bill seeks to obtain the legal consequences of amending section 328(7) while avoiding the constitutional process that such an amendment would inevitably trigger. That is not constitutional amendment but constitutional circumvention.
Mr Mnangagwa, the incumbent President, has described himself as a constitutionalist. The Constitution now presents him with an opportunity to demonstrate that constitutionalism requires fidelity not only to constitutional outcomes but also to constitutional procedures. By invoking section 131 and referring the Bill to the Constitutional Court, he would ensure that the Constitution is amended only in the manner that the Constitution itself permits.
Ultimately, constitutional democracies are measured not by the size of parliamentary majorities but by the willingness of constitutional actors to remain within constitutional limits. The Constitution of Zimbabwe prescribes how it may be amended. What it requires to be done directly cannot lawfully be achieved indirectly.
Suggested citation: Nqobani Nyathi, Constitutional Circumvention and the Limits of Amendment Power: Reflections on Zimbabwe’s Constitution Amendment No. 3 Bill, Int’l J. Const. L. Blog, Jul. 25, 2026, at: http://www.iconnectblog.com/constitutional-circumvention-and-the-limits-of-amendment-power-reflections-on-zimbabwes-constitution-amendment-no-3-bill/
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