ZIMBABWE’S current constitutional amendment debate is being trivialised into a classroom metaphor: “You cannot change the rules mid-exam.” I am not adopting a Socrates and his disciple approach even though I was a student of Professor Lovemore Madhuku.
Madhuku’s view is an academic approach to a largely policy and legal problem.
The amendment issue is not about exam etiquette. It is about constitutional design.
And the uncomfortable truth is this: When Zimbabwe drafted the 2013 Constitution, it used or rather copied and pasted the South African Constitution as its travaux préparatoires. The SA constitution remained a working legal source, not just an inspiration to be used by politicians as is now the case.
We did not copy words. We copied architecture.
The 2013 Constitution did not emerge in isolation. It mirrors the structure of the Constitution of South Africa in critical respects and created inter alia:
A powerful Constitutional Court. A layered Bill of Rights. Graded amendment thresholds. Differentiation between entrenched and amendable provisions.
This is not accidental similarity. It is structural borrowing which even the drafters, all still alive, were convivially aware of whether they were from original MDC under Welshman, MDC-T or Zanu PF.
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In constitutional interpretation, the travaux préparatoires, that is, the drafting history and source materials, matter greatly. When courts interpret ambiguous provisions, they look at the intellectual ancestry of the preparatory text.
Zimbabwe’s constitutional DNA runs through Pretoria.
The drafters of the Zimbabwean Constitution are still alive. Those who gave drafts, including Madhuku’s NCA, are alive. They understood this borrowing which was slightly transformed under section 328 of the Zimbabwean Constitution. Even the 90% plus people who endorsed the 2013 Constitution anticipated precisely the kind of structural manoeuvre that is now being debated using the SA style of executive appointment.
Section 328: The internal amendment engine
Section 328 creates three tiers. Some amendments require a parliamentary super majority. Some require a referendum. Some are barred from benefiting an incumbent (section 328 (7)).
Critics fixate on section 328(7), which prevents extension of presidential term limits for the sitting President.
But here is the deeper design question they ignore:
Did the Constitution entrench the method of executive election behind referendum protection? No. That omission was not accidental.
If the drafters intended the electoral system to be referendum-locked, they would have placed it among referendum-protected clauses under section 328. They did not, and they are lawyers who are still alive.
And when a constitutional text is silent in an entrenched list, silence is structural permission. A mere law like an electoral amendment can use the preparatory documents to cure any ambiguities.
The SA Travaux were known and ignored by political actors across formations.
Movement for Democratic Change — Tsvangirai; Zanu PF and original Movement for Democratic Change — Ncube, all participated in crafting or endorsing a Constitution whose source was transparently South African.
To now behave as though Parliament’s amendment competence is a surprise is political amnesia.
Ratifiers, even if at that time the concern was that they were unsophisticated because the 2013 Constitution was badly drafted, endorsed a document by way of referendum, whose structural implications many did not fully grasp. That is not an insult; it is a socio-legal reality. Constitutional design is sophisticated. Referendum politics is simply emotional. I am not going to embark on the nexus between theory of emotions and law.
The tragedy is not that villagers voted to endorse a Constitution with section 328 amendment clause. The tragedy is that the elite who understood the borrowed structure and didn't vote in the referendum now pretend it does not exist.
That is constitutional infidelity.
Parliament makes law? Lies. Parliament simply debates laws that are kick-started by Cabinet or policy-makers. A village correction matters here.
In village philosophy, the pot that cooks is not celebrated at the table.
People praise the one who serves, not the one who prepared.
We say “Parliament makes the law.”
But in practice, Cabinet drafts. Parliament debates. Majorities endorse.
This is not conspiracy. It is Westminster logic, another inheritance into our law.
To pretend Parliament is an independent law-making fountain is to ignore how executive dominance works in parliamentary systems.
Zimbabwe borrowed that too.
Enter the penumbra!
Legal debate cannot stop at black-letter hierarchy charts as those in the amendment clause. This is where the penumbra appears for advanced jurisprudential thinkers.
The penumbra concept, famously debated by H L A Hart and Ronald Dworkin, recognises that law operates in grey zones beyond clear rules. When a matter is not expressly entrenched, we move from rule to principle. From text to structure.
From hierarchy to design. Even Madhuku once taught that the governance problem in Zimbabwe is simply because the electoral system needs to be changed.
Opponents of constitutional reform argue as if every structural change is morally referendum-bound. That is rule-puritan formalism. Legal puritans ignore legal reality.
Structurally, Zimbabwe’s Constitution allocates broad amendment authority to Parliament except where expressly restricted. That is not abuse. That is constitutional identity and architecture.
Even if one takes the Grundnorm concept and allocation of power under Hans Kelsen, we understand that a constitutional order rests on a Grundnorm, a foundational acceptance that the system’s allocation of power is valid.
The Grundnorm of Zimbabwe’s 2013 order is that amendment occurs through graded procedures. If those procedures are followed, the amendment is valid, whether politically convenient or not.
From John Rawls, one might ask whether the system currently preferred by Zimbabwe's Cabinet under Constitutional Amendment no 3 Bill, is just.
But Rawlsian justice does not override textual allocation. Justice operates within structure and must be linked to constitutional fidelity.
And Hart’s rule of recognition confirms: If the amendment pathway is constitutionally allowable, it is law.
You cannot invoke moral discomfort to rewrite the rule of recognition.
Rope-a-Dope: Ali's 1974 Lesson
As someone who has warned in my 2025 book on constitutional identity about the possibility of changing executive appointment in Zimbabwe to avoid the referendum, let me take my fellow lawyers to 1974. In 1974, Muhammad Ali faced George Foreman in the Rumble in the Jungle fight.
Foreman was the heavyweight champion. Stronger. Younger. Favoured. Ali did not change the rules of boxing. He used the ropes to tire Foreman.
He absorbed pressure and did not even land the killer punch when Foreman was losing the match through a fall.
He understood the ring better than his opponent. It wasn’t about the knuckle punch or velvet glove.
The rope-a-dope was not cheating. It was structural intelligence.
To come back home, if the President avoids a referendum by using an internally permissible amendment pathway borrowed from South Africa’s presidential appointment system, he is not stepping outside the ring. He is simply deciding to change the electoral system by making Parliament alive to the South African system of appointing a president. This system was there when Zimbabwe copied and pasted the South African constitution in 2013, albeit with some minor contextual modifications.
The Cabinet is using the ropes built into the ring. That is design constitutional literacy.
Ali and Foreman later became friends. History did not remember Ali's rope-a-dope strategy as illegitimate. It remembered it as brilliant way used by those unflavoured in the ring to fight those who are crowd favourites. This is grand strategy in politics.
Even more telling: Ali later allowed Foreman back into boxing’s legitimacy and Foreman won another accolade after the 1974 loss. Politics, like boxing, evolves beyond one fight.
The missed point about section 328(7)
Perhaps, those fixated on section 328(7) are guarding against term extension. But if the electoral system itself is restructured, say from direct election to parliamentary election, the debate shifts.
The prohibition in the amendment clause is on extending term limits for the incumbent. It is not on redesigning executive selection through borrowing from SA, unless explicitly entrenched. The Constitution doesn't say changing the electoral system is prohibited in section 328.
The battlefield is being misidentified by those who argue after the fact. Ali did not fight Foreman where Foreman was strongest. He shifted the geometry to the ropes.
The village analogy
Let me end by what happens in a village. If you design a granary with two doors and later complain that someone used the second door, whose fault is it?
You built the door through Zanu PF, MDC-N and MDC-T. The South African constitutional design gave Parliament amendment authority except where referendum is expressly required.
Zimbabwe kept that engine.
To now insist that all major changes require referendum is to pretend the second door does not exist.
The pot cooked long ago.
The double-edged sword
This article is not a celebration. It is a warning. A Constitution that empowers internal amendment can be used by any majority. Today’s reformer may be tomorrow’s victim. That is the double-edged sword.
If political actors ignored the travaux préparatoires in 2013, that is, the South African source of appointing the President, during drafting and ratification, they cannot now cry betrayal when the borrowed machinery operates.
The real debate
The real question is not what Madhuku says:
“Are the rules being changed mid-exam?”
It is rather a penumbral one: “Did we understand the constitutional machine we adopted when we hurriedly inserted section 328 amendment clause into our Constitution?”
Zimbabwe consciously avoided incumbent term extension by direct clause. But it did not entrench executive election method behind referendum walls. That structural silence speaks loudly to what Cabinet is doing today.
In penumbral cases, structure governs. And structure, in this instance, traces back to South Africa.
The ropes were always there. The ring was designed that way. The President or Cabinet may simply be fighting inside it. He might win like Ali without shredding the rules of the constitutional amendment.
