The government is facing mounting accusations of manipulating constitutional provisions to justify extending President Emmerson Mnangagwa’s rule, as a fierce legal and political dispute erupts over whether the proposed Constitutional Amendment Bill No. 3 of 2026 can lawfully proceed without a national referendum.
Senior government officials and critics have offered conflicting interpretations of Section 328.
Bulawayo Mayor David Coltart has criticised Attorney-General Virginia Mabhiza, accusing her of advancing a misleading interpretation of the Constitution by focusing narrowly on Section 328(6) while disregarding subsections (7), (8) and (9), which he argues impose stricter safeguards on amendments affecting term limits and incumbency.
The dispute centres on Section 328 of the Constitution of Zimbabwe, which outlines the procedure for amending the Constitution.
Mabhiza recently argued that a referendum is not required, insisting that Section 328(6) limits such a process to amendments affecting Chapter 4 (Declaration of Rights), Chapter 16 (Agricultural Land), or Section 328 itself.
She maintained that since the current Bill does not touch on these provisions, it can proceed with a two-thirds parliamentary majority.
However, Coltart contends that this interpretation ignores critical subsections that follow.
According to Section 328(7) of the Constitution, even where an amendment relates to term limits, it cannot apply retroactively to benefit an incumbent office holder.
The provision explicitly states that any extension of the length of time a person may hold public office does not apply to those already in office at the time of the amendment.
“Notwithstanding any other provision of this section, an amendment to 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,” the Section states.
Section 328(8) further restricts how such provisions can be amended, while Section 328(9) stipulates that amendments affecting these incumbency protections must follow the same stringent procedures as those applied to Chapter 4, effectively elevating their status.
Coltart argues that when read together, these provisions imply that any amendment whose effect is to extend the tenure of sitting officials triggers stricter constitutional safeguards, potentially including a referendum.
“The Constitution is clear that such amendments must be treated as if they affect Chapter 4,” he said. He added that focusing solely on Section 328(6) while ignoring subsections (7), (8) and (9) presents an incomplete legal position.
Legal analysts note that Section 328, as a whole, establishes both procedural and substantive limits on constitutional amendments.
Subsection (6) defines when a referendum is mandatory, but subsections (7) to (9) introduce additional protections specifically targeting term limits and incumbency.
In particular, subsection (9) states that provisions dealing with incumbency must be amended “as if” they were contained in Chapter 4, which ordinarily requires a referendum under subsection (6).
This has become a central point of contention in interpreting whether the current Bill meets the threshold.
“This section may be amended only by following the procedures set out in subsections (3),(4), (5) and (6), as if this section were contained in Chapter 4,” the Constitution states.
Justice Minister Ziyambi Ziyambi, who is behind the drafting of the controversial bill, has supported Mabhiza’s position, arguing that the Constitution deliberately restricts referendums to clearly defined categories and that the current amendment does not fall within them.
“On the issue of a referendum, let me explain it by saying, in 2013, when we came up with a completely new Constitution, we put in safeguards on how the Constitution is supposed to be amended and within that Constitution, which we took to the people for a referendum, we were given three scenarios where we require a referendum.
“The people clearly indicated that don’t come to us if you are amending this Constitution, if you are not touching these three. What you simply need is a two-thirds majority. So this amendment does not touch chapter four, does not touch chapter 16, does not touch section 328,” Ziyambi said.
Critics, however, say this reading isolates one subsection while overlooking the broader constitutional framework designed to prevent the extension of incumbents’ terms without direct public approval.