CONSTITUTIONAL COURT SETS SEPTEMBER 22 HEARING FOR CHALLENGE TO CAA3 PRESIDENTIAL VOTING SYSTEM:
By Reason Wafawarova
HARARE — The Constitutional Court of Zimbabwe has set 22 September 2026 as the hearing date for an application seeking permission to challenge directly the removal of Zimbabweans’ right to vote for the President.
The case, filed under CCZ 273/26, has been brought by Reuben Zulu, Godfrey Gurira, Shoorai Nyamagodo, Joseph Chinyangare, Digmore Knowledge Ndiya and Joseph Chinguwa.
Professor Lovemore Madhuku is representing the applicants.
The application challenges a central provision of Constitution of Zimbabwe Amendment (No. 3) Act, 2026, commonly known as CAA3. The legislation is also published as Act No. 6 of 2026.
Under the previous constitutional arrangement, registered voters elected the President directly during a national election. Under the new section 92 introduced by CAA3, the President is elected after the general election by members of the Senate and National Assembly sitting jointly.
The applicants argue that this change removed a separate political choice previously exercised by every registered voter and transferred it to a comparatively small group of MPs and senators.
However, the hearing scheduled for 22 September will not necessarily determine whether CAA3 is constitutional or invalid.
The immediate application concerns “direct access”—legal permission for the applicants to bring their substantive constitutional challenge directly before the Constitutional Court instead of beginning in the High Court.
WHAT THE APPLICANTS ARE ASKING FOR NOW:
The applicants are presently asking the Constitutional Court to:
1. grant them direct access to the Court;
2. permit them to institute their main constitutional application under section 85(1) of the Constitution;
3. direct that the main application be filed and served within five days of an order granting direct access, or within another period directed by the Court; and
4. allow the substantive constitutional challenge to proceed before the Constitutional Court.
If direct access is granted, the Court will then be asked to determine whether CAA3 unlawfully diminished the applicants’ political rights by removing their direct presidential vote without first obtaining approval through a national referendum.
WHAT THE MAIN CASE WOULD ARGUE:
The applicants rely principally on section 67 of the Constitution, which protects political rights, including the rights of citizens to make political choices and to vote in elections.
They also rely on section 88, which says executive authority derives from the people of Zimbabwe, and section 3, which recognises universal adult suffrage, equality of votes and democratic government as founding constitutional values.
Their central argument is that voting for an MP is not the same political act as voting directly for President.
Before CAA3, a citizen could vote for a parliamentary candidate from one party and a presidential candidate from another. Under the new system, that separate presidential choice has disappeared. Citizens elect Parliament, and Parliament subsequently elects the President.
The applicants contend that this substantially diminishes the practical enjoyment of the political rights protected by section 67.
They argue that section 328(6) consequently required the change to be submitted to a national referendum.
Section 328(6) provides special protection for provisions contained in Chapter 4, the Declaration of Rights, and Chapter 16. Where a Constitutional Bill seeks to amend a provision in either chapter, it must be approved by voters in a national referendum.
CAA3 did not change the actual wording of section 67. It amended section 92, which is situated outside Chapter 4.
The applicants nevertheless argue that Parliament cannot avoid the referendum safeguard simply by placing an amendment outside Chapter 4 when its practical effect is to diminish a right protected inside Chapter 4.
In simple terms, their case is that the Constitution protects the substance of political rights, not merely the location of the words in which those rights are written.
WHAT THE APPLICANTS WILL SEEK IF DIRECT ACCESS IS GRANTED:
In the proposed substantive application attached to the court papers, the applicants intend to ask for declarations that:
• section 67 protects meaningful participation in the election of the President;
• replacing direct presidential elections with election by Parliament diminishes the substance and practical enjoyment of those political rights;
• the amendment therefore required approval through a national referendum;
• the absence of a referendum renders the impugned provisions invalid; and
• section 3 of CAA3, which repealed and substituted section 92, must be struck down together with provisions legally dependent upon the parliamentary presidential-election system.
The application does not presently seek to invalidate every provision of CAA3.
Its principal target is the provision transferring the presidential vote from the national electorate to Parliament and any other provisions necessarily dependent on that arrangement.
WHY THE APPLICANTS WANT TO GO DIRECTLY TO THE CONSTITUTIONAL COURT:
Direct access is an exceptional procedure. The Constitutional Court does not grant it merely because a matter is politically important or concerns the Constitution.
The applicants must establish that direct access is in the interests of justice and that their proposed case has realistic prospects of success.
They argue that the dispute is suitable for immediate determination because it raises a pure question of constitutional interpretation.
The essential facts are not seriously disputed:
• Zimbabweans previously voted directly for President;
• CAA3 replaced that arrangement with election by Parliament;
• the amendment was passed, signed and promulgated; and
• no national referendum was held.
The applicants say there are no witnesses to hear, no factual dispute requiring a trial and no oral evidence needed.
They also argue that starting in the High Court would cause unnecessary duplication because any declaration of constitutional invalidity made by another court would ultimately require confirmation by the Constitutional Court.
According to the applicants, Zimbabwe requires urgent constitutional certainty about the method by which future Presidents will be elected.
THE GOVERNMENT’S OPPOSITION:
The President, the Minister of Justice and the Attorney-General are opposing the application through an affidavit deposed to by Attorney-General Virginia Mabiza.
Parliament has filed separate opposition through an affidavit deposed to by Speaker of the National Assembly Jacob Mudenda.
The respondents argue that direct access should be refused on both procedural and substantive grounds.
They contend that:
• the applicants have an alternative remedy in the High Court;
• the Constitutional Court should not unnecessarily become a court of first and final instance;
• the applicants may have selected the wrong constitutional procedure;
• section 67 was never expressly amended;
• section 328(2) requires constitutional amendments to be made expressly;
• section 67 does not expressly guarantee that citizens must elect the President directly;
• citizens will continue exercising political rights by electing MPs;
• Parliament’s subsequent election of the President remains a form of representative democracy;
• executive authority can still derive indirectly from the people through their elected representatives; and
• no referendum was constitutionally required because no provision in Chapter 4 was textually amended.
The respondents also initially complained that the applicants had not identified the precise provision of CAA3 they were challenging or properly established their standing before the Court.
HOW THE APPLICANTS HAVE ANSWERED:
In their answering affidavit, the applicants clarified that their principal target is section 3 of Act No. 6 of 2026, which repealed and replaced section 92 of the Constitution.
They have also clarified that they are approaching the Court solely in their personal capacities under section 85(1)(a), as citizens and registered voters whose direct presidential vote has allegedly been removed.
They have abandoned their initial alternative reliance on public-interest standing under section 85(1)(d).
The applicants deny that they are arguing that section 67 was secretly or impliedly rewritten. They accept that its wording remains unchanged.
Their contention is instead that the express amendment of section 92 produced a direct and substantial effect on the practical enjoyment of rights protected by section 67.
They also deny relying on the controversial “basic structure” theory, under which certain fundamental features of a constitution may be treated as beyond the ordinary amendment power.
The applicants say direct presidential election is not necessarily incapable of amendment. Their case is that it could not be removed without first obtaining the people’s approval through the referendum procedure prescribed by the Constitution.
WHAT THE COURT MUST DECIDE FIRST:
At the hearing on 22 September, the Court is expected to consider whether:
• the proposed case raises a genuine constitutional matter;
• the applicants have established personal standing;
• their papers identify the challenged provisions with sufficient precision;
• the proposed challenge has realistic prospects of success;
• the High Court or another constitutional procedure offers an adequate alternative remedy;
• any factual disputes require determination elsewhere; and
• the interests of justice justify direct access.
If the Court grants direct access, the substantive constitutional case will proceed.
That would not, by itself, mean that CAA3 had been invalidated.
If direct access is refused, the reasons will be equally important. The Court could refuse permission on procedural grounds without deciding that the parliamentary election of the President is constitutionally valid.
THE CENTRAL CONSTITUTIONAL QUESTION:
The dispute can ultimately be reduced to one question:
Does section 328(6) protect only the actual words printed in Chapter 4, or does it also protect the substance and practical enjoyment of Chapter 4 rights against constitutional amendments made elsewhere?
The Government’s position is essentially textual: because section 67 was not expressly amended, no Chapter 4 provision was amended and no referendum was required.
The applicants’ position is effects-based: Parliament cannot leave section 67 untouched on paper while using an amendment to section 92 to remove a political choice protected by section 67 in practice.
The Court’s answer could have consequences extending beyond presidential elections. It could determine whether Parliament may affect entrenched constitutional rights indirectly without first seeking the approval of the people.
WHAT REMAINS PENDING:
The following issues remain unresolved:
• whether direct access will be granted;
• whether the substantive case will proceed immediately in the Constitutional Court;
• whether the applicants may instead be directed to begin in the High Court;
• whether section 67 protects a direct presidential vote;
• whether the amendment to section 92 triggered the referendum requirement;
• whether the substituted section 92 is constitutionally valid;
• which related provisions could fall if section 92 is invalidated; and
• what remedy the Court would provide if the challenge ultimately succeeds.
CAA3 remains in force unless and until a competent court declares otherwise.
The pending case should therefore not be described as having suspended, reversed or already defeated the amendment.
The September hearing represents the opening procedural contest in what may become one of Zimbabwe’s most consequential constitutional cases.
I will shortly publish a detailed analysis of the submissions made by the applicants, the Government and Parliament, including the strengths and weaknesses of their respective constitutional arguments.
I will also provide updates as CCZ 273/26 proceeds through the Constitutional Court.