THIS legal opinion has been prepared unsolicited on behalf of all members of the National Assembly, including both the proponents and the opponents of Constitution Amendment No. 3 Bill (CAB 3).
This is because, I am of the strong legal opinion, that the Senate’s proposed amendments to CAB 3 create a serious constitutional loophole which I believe may be unintentional and the proponents of the Bill may be unaware of since it has never been presented by the Bill’s proponents as the intention of the Bill.
Therefore, in this opinion, I have put aside the merits and demerits of the Bill as whole to ensure that both proponents and opponents of the Bill understand the gravity of this loophole and can cooperate to ensure its closure.
The loophole: As presently drafted, there is a credible legal argument that a President elected by Parliament to fill a vacancy following the death, resignation or removal of a President would begin a fresh seven-year presidential term, and that this could, in turn, trigger a fresh seven-year parliamentary term, thereby postponing the next general election. This constitutional loophole could be repeatedly exploited indefinitely, with the result that Zimbabwe may never have a general election ever again.
This is because a President could resign or be removed shortly before the expiry of his or her term, Parliament could elect a successor, and the successor’s assumption of office could arguably restart the constitutional cycle for both the Presidency and Parliament.
This process could theoretically be repeated indefinitely, allowing the life of Parliament to be continually renewed without the electorate ever being called upon to vote in another general election.
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Whether a court would ultimately adopt that interpretation cannot be predicted with certainty.
However, legislation — particularly constitutional legislation — should not leave open an ambiguity capable of producing consequences so fundamentally inconsistent with democratic governance.
As this scenario was never presented to Parliament by the proponents of the Bill as being the intention behind the Bill, we must give the benefit of the doubt that the loophole has been created inadvertently.
Therefore, it should be uncontroversial for members of the National Assembly from across the political divide to unanimously close that loophole to make it expressly clear that:
a President elected to fill a vacancy serves only the remainder of the previous President’s term; and
the election of such a President does not commence a new parliamentary or electoral cycle.
The Senate’s recommendations provide an opportunity to make those principles explicit and close the loophole.
Existing constitutional scheme
The current Constitution establishes a clear distinction between two different methods by which a person assumes the office of President.
First, under section 94(1), a President elected following a general election assumes office after taking the prescribed oath.
Secondly, under section 94(3), where a successor assumes the office of the President following the death, resignation or removal of the President, that successor assumes office under a separate constitutional mechanism.
This distinction is significant.
Section 143 links the duration of Parliament specifically to the assumption of office of a President under section 94(1).
Consequently, where a President assumes office under section 94(3), Parliament’s existing term continues uninterrupted and the constitutional election timetable remains intact.
Section 101 deals with “Succession in the event of death, resignation, or incapacity of the President”.
In its current form in the Constitution (as amended by Constitution Amendment No. 2) it does not explicitly state that the person who succeeds the President assumes office until the expiry of their term (this was explicitly stated in the original section 101 of the 2013 Constitution).
However, it is clearly still the current legal position that a successor in terms of section 101 does not create a new election cycle for at least three reasons:
The current section 101 provides for the successor to be nominated by the political party which the former President was elected.
Therefore, such a person could not assume office in terms of section 94(1)(a) which explicitly requires that it must be on the 9th day after they are declared elected (i.e. following an election, not a nomination by political party of the former President).
The existence of section 94(3) in the current Constitution provides a separate mechanism for a President to assume office following the death, resignation or removal ensures that section 143(1) is not triggered in such circumstances.
While section 94(3) in the current Constitution is inelegantly drafted following Constitution Amendment No. 2 Bill, the presumption against surplusage ensures that it nevertheless serves that purpose.
The current section 92(1) of the Constitution explicitly states that the election of a President “must take place within the period specified in section 158” (i.e. the “Timing of elections” provision. Thus, the President’s term is tied to the election cycle rather than vice versa.
Therefore, the present Constitution avoids any possibility that a mid-term succession could restart the electoral cycle.
Effect of the Senate amendments
The Senate introduced a new Clause 4 of the Bill which proposes repealing section 94(3) altogether.
Once repealed, the Constitution would contain only one mechanism by which a President assumes office: in terms of section 94(1).
At the same time, the Senate also proposes in Clause 7 of the Bill replacing section 101 so that, following the death, resignation or removal of a President, the Vice-President merely acts as President until Parliament elects a new President under the proposed section 92.
Accordingly, every President — including one elected following a vacancy — would appear to assume office under the only remaining assumption-of-office provision.
That has potentially drastic unintended consequences.
The constitutional loophole
The Bill introduces parliamentary elections for the office of President whenever a vacancy occurs.
In doing so, the Bill would repeal the current section 92(1) which provides that the election of the President “must take place within the period specified in section 158” (that is, the constitutional provision on “Timing of elections”).
Instead, the amended Constitution would simply provide that:
Parliament elects a President whenever a vacancy occurs (section 92 and section 101);
that President assumes office under the ordinary constitutional oath (section 94(1);
the President’s term is seven years (section 95);
Parliament’s term is linked to the assumption of office of the President in terms of section 94(1)(a) (section 143(1)); and
future elections are calculated by reference to Parliament’s term (section 158(1)).
Read literally, these provisions are capable of supporting the argument that each parliamentary election of a replacement President commences a fresh constitutional cycle.
Nowhere does the Bill expressly state that a President elected following a vacancy serves only the remainder of the former President’s term in order to close that loophole.
Although a court might reject that interpretation by adopting a purposive construction, legislation should not depend upon judicial implication to preserve one of the most fundamental principles of constitutional democracy — regular elections.
Potential consequences
If this ambiguity is not corrected, the following sequence could occur:
Parliament elects a President following a general election.
Shortly before expiry of the seven-year term, that President resigns or is removed by Parliament.
Parliament elects a replacement President.
The replacement President assumes office.
It is argued that the assumption of office commences a new seven-year Presidential and Parliamentary term.
The date of the next general election is correspondingly postponed.
The same process could then be repeated before each subsequent election.
Whether or not such an argument would ultimately succeed before the courts is beside the point.
The Constitution should not admit an interpretation capable of permitting Parliament’s democratic mandate to be extended indefinitely without returning to the electorate.
Proposed amendments
The National Assembly can remove this ambiguity through two simple amendments:
Reject the Senate’s repeal of section 94(3)
Rather than deleting section 94(3), the National Assembly should retain it, while adapting it to reflect the new parliamentary method of electing the President.
The section could read: “94(3) A person elected President in terms of section 92(7) assumes office by taking before the Chief Justice, or the next most senior judge available, the oath of President in the Third Schedule on the ninth day after they are declared to be elected or, in the event of a challenge to the validity of their election, within forty-eight hours after the Constitutional Court has declared them to be the winner.”
This amendment preserves the constitutional distinction between:
assumption of office following a general election; and
assumption of office following the death, resignation or removal of a President.
It also preserves the existing relationship between sections 94 and 143, ensuring that the assumption of office following a vacancy does not inadvertently commence a fresh parliamentary term.
Amend the Senate’s proposed section 101
The Senate’s proposed section 101 should also be amended to make the duration of the replacement President's tenure explicit.
The section should read:
101 Succession in event of death, resignation or incapacity of President
If the person elected President in any election dies, resigns or is removed from office, the Vice-President or, where there are two Vice-Presidents, the Vice-President who was last nominated to act in terms of section 100, acts as President until a new President assumes office in terms of section 92 until the expiry of the former President's term.
This makes it clear that the person elected under section 92 serves until the expiry of the former President’s term.
The Constitution should leave no doubt that a parliamentary election held to fill a vacancy does not begin a fresh presidential or parliamentary term.
Conclusion
The Senate amendments have identified a genuine constitutional issue, but do not resolve it.
On the contrary, they have introduced an extremely dangerous loophole.
By repealing section 94(3) while introducing parliamentary presidential elections for vacancies, the Bill removes the constitutional distinction that currently prevents a mid-term succession from affecting the parliamentary and electoral cycle.
Constitutional drafting should eliminate — not create — uncertainty concerning the timing of elections and the possibility that elections could be completely avoided in future should be eliminated entirely.
The National Assembly should therefore amend the Bill to make it unequivocally clear that:
a President elected to fill a vacancy serves only the unexpired balance of the former President's term;
the assumption of office of such a President occurs under a separate succession provision (by retaining and adapting section 94(3)); and
the election of a replacement President does not commence a new parliamentary term or alter the date of the next general election.
These minor changes to the Senate’s version of the Bill would avoid the introduction of a constitutional loophole of such a grave magnitude that it surely should be uncontroversial among both proponents and opponents of the Bill that those changes must, without fail, be made by the National Assembly and agreed to by the Senate.
Failure to do so could plunge our nation into a constitutional crisis of unprecedented magnitude.
Doug Coltart is a human rights and constitutional lawyer