ZIMBABWE’S Parliament has passed Constitution Amendment No 3 Bill (CAB 3) and the Bill now awaits presidential assent.
Public discussion has understandably focused on the political merits and demerits of the proposed amendments.
Yet the questions now arising are, at their core, constitutional rather than political.
The passage of a constitutional amendment through Parliament does not necessarily conclude the constitutional inquiry.
Constitutional reform of this magnitude must ordinarily satisfy three distinct but related tests: procedural legality, substantive constitutional compliance and democratic legitimacy.
Each raises different questions, and each deserves careful reflection especially by duty bearers including the President before the constitutional amendment process is completed.
Procedural legality: Has every constitutional requirement been satisfied?
The first question is one of constitutional procedure.
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The Constitution itself prescribes how it may be amended.
It also distinguishes between ordinary constitutional amendments and those that require the direct approval of the people through a referendum.
This distinction reflects an important constitutional principle: while Parliament possesses amendment powers, certain constitutional changes are reserved to the sovereign people themselves.
In relation to CAB 3, important constitutional questions remain open to legitimate legal debate.
Among them are whether some of the proposed amendments required approval through a referendum before they could lawfully be enacted and whether Parliament can amend constitutional provisions that the Constitution itself has expressly insulated through additional procedural safeguards.
These are not political questions.
They are legal questions that ultimately fall within the constitutional jurisdiction of the courts.
This article does not seek to prejudge those issues.
Rather, it recognises that the constitutionality of the amendment process itself remains capable of judicial determination.
Substantive constitutional compliance: Can every constitutional provision be amended in the same way?
Even where constitutional procedures have been followed, a second question arises.
Can Parliament, acting alone, fundamentally alter constitutional rights or democratic guarantees that lie at the heart of Zimbabwe’s constitutional order?
Among the concerns expressed regarding CAB 3 is its potential impact on citizens’ right to directly elect the President.
Zimbabwe’s Constitution guarantees citizens the right to participate in public affairs and to elect public officials in free, fair and regular elections.
It also places particular protection around the Declaration of Rights and around certain provisions relating to tenure and constitutional governance.
Whether amendments affecting these rights and protections are constitutionally permissible without direct approval through a referendum is a question that deserves careful judicial examination.
Equally important is whether the amendment power itself has constitutional limits where the proposed changes substantially affect the democratic character of the Constitution.
Comparative constitutional jurisprudence increasingly distinguishes between ordinary constitutional amendment and constitutional transformation.
While constitutions must evolve, amendment procedures are generally understood to exist to preserve constitutional government rather than to undermine its foundational principles.
Democratic legitimacy: Beyond legal validity
Even if constitutional questions concerning legality are ultimately resolved, a broader constitutional consideration remains.
Constitutions derive their authority not only from legal procedure but from the consent and confidence of the people.
This distinction between legality and legitimacy has become increasingly important within African constitutionalism.
Across the continent, constitutional amendments affecting tenure, succession, political participation and the distribution of public power have often generated prolonged political contestation where significant sections of society perceived that constitutional reforms lacked sufficient public ownership.
Legality alone may determine whether an amendment is constitutionally valid. Legitimacy determines whether it is likely to command enduring public acceptance.
The two should reinforce one another.
Zimbabwe’s regional and international commitments
Zimbabwe’s constitutional debate should also be viewed within the broader framework of African constitutionalism.
The African Union Constitutive Act and the African Charter on Democracy, Elections and Governance reflect a continental commitment to constitutional democracy, regular elections, constitutional government and the peaceful transfer of political authority.
Over the past two decades, African constitutional discourse has evolved beyond the traditional understanding of unconstitutional changes of government as military coups alone.
Increasing attention has been given to what constitutional scholars have described as “constitutional coups” or “unconstitutional constitutional change”, where constitutional mechanisms are used in ways that significantly weaken democratic accountability or constitutional safeguards.
Whether CAB 3 falls within that evolving body of constitutional thought is itself a matter for careful legal analysis rather than political assertion.
Nevertheless, these continental developments demonstrate that constitutional reform is no longer viewed solely as a domestic political matter, but increasingly as part of Africa’s shared commitment to constitutional governance.
The Malabo Protocol, although not yet fully operational and not binding on Zimbabwe, is relevant in this regard.
Its importance lies not in creating present criminal liability for unconstitutional change of government, but in illustrating the seriousness with which the African Union increasingly regards serious attacks on constitutional order.
It reflects an emerging continental norm that constitutional democracy deserves legal protection of the highest order.
The constitutional role of the Defence Forces
CAB 3 also introduces amendments concerning the constitutional role of the defence forces.
Whatever the policy objectives behind these amendments, constitutional provisions governing civil-military relations are among the most sensitive components of any constitutional order.
Across Africa, disputes involving the constitutional role of the military have often had consequences extending far beyond legal interpretation, affecting political stability, democratic governance and public confidence in constitutional institutions.
For that reason, amendments affecting the constitutional role of the defence forces deserve especially careful examination against the principles of civilian supremacy, constitutional accountability and democratic governance.
The President's constitutional oath
The Bill now awaits Presidential assent.
The President’s role at this stage is not merely ceremonial. It is constitutional.
In taking the oath of office, the President undertakes to uphold, defend, obey and respect the Constitution and to ensure that the Constitution and all laws are faithfully observed.
That constitutional oath requires reflection not only on whether Parliament has passed a Bill, but also on whether the Bill faithfully complies with the Constitution and the constitutional values that it seeks to protect.
Where serious constitutional questions remain regarding referendum requirements, entrenched political rights, tenure arrangements or the constitutional architecture itself, the President’s oath assumes particular significance. It invites careful constitutional reflection before assent is automatically given.
The weight of responsibility on the President’s shoulders to be convinced that CAB 3 is constitutional is very high given the long-term impact it will have on society for many years to come.
A referendum as a source of constitutional strength
The suggestion that certain aspects of CAB 3 be submitted to a referendum should not be understood as opposition to constitutional reform.
On the contrary, where constitutional amendments affect fundamental questions of political participation, tenure or constitutional design, direct endorsement by the people may provide the strongest possible constitutional foundation.
If the proposed reforms enjoy broad public support, a referendum would not weaken them.
It would strengthen their democratic legitimacy, reduce future constitutional contestation and reaffirm the constitutional principle that sovereignty ultimately resides in the people.
Conclusion: Constitutional moments require constitutional prudence
Zimbabwe is at an important constitutional moment.
The debate surrounding CAB 3 is not simply whether constitutions may be amended. They can and should be.
The more important questions are whether every constitutional requirement has been satisfied, whether the proposed amendments remain consistent with the Constitution’s own protections and values, and whether reforms of such significance should derive their ultimate legitimacy from Parliament alone or from the people themselves.
These are questions worthy of careful judicial consideration, thoughtful executive reflection and informed public dialogue.
Constitutional history teaches that enduring constitutions are not built upon procedural compliance alone.
They are strengthened when legality, constitutional fidelity and democratic legitimacy converge.
Recommendations
In that spirit, the following steps merit careful consideration before the constitutional amendment process is concluded:
First, any outstanding constitutional questions concerning referendum requirements, entrenched political rights and the scope of Parliament’s amendment power should remain open to judicial determination should the courts be called upon to exercise their constitutional mandate.
Second, in exercising the constitutional power of assent, the President should be guided by the constitutional oath to uphold, defend and respect the Constitution, satisfying himself not only that the Bill has passed Parliament but also that it fully complies with both the letter and the spirit of the Constitution.
Third, consideration should be given to whether amendments affecting political participation, presidential tenure, the constitutional role of the defence forces and other foundational features of Zimbabwe’s constitutional order would derive greater constitutional authority and democratic legitimacy if submitted to the sovereign people through a referendum.
Such an approach would not impede constitutional reform.
Rather, it would strengthen public confidence, reinforce Zimbabwe’s commitment to constitutional democracy and ensure that any constitutional changes are remembered not only as legally enacted but as genuinely owned by the people in whose name the Constitution exists.
