The current debate over whether Zimbabwe can extend its parliamentary and presidential term cycle from five to seven years without a referendum has revived old constitutional tensions. Yet, when examined through the Constitutional Court’s rulling in Mupungu v Minister of Justice (2021), and, interestingly, through Professor Jonathan Moyo’s own analysis, the answer becomes doctrinally clear. Extending the length of a term is not the same as altering a term limit, and therefore does not trigger the referendum requirement in Section 328(7).
The Mupungu controversy began with the litigation over Chief Justice Malaba’s extended tenure. The High Court had ruled the extension illegal as they had adopted an expansive view of what constitutes a “term limit provision.” It treated Section 186(1), which sets the retirement age for judges, and Section 186(2), which imposes a 15year cap on judicial service, as functional equivalents of constitutional term limits. Under this approach, any amendment that allowed an incumbent to serve longer, whether by raising the retirement age or adjusting tenure conditions, was treated as altering a term limit provision. On that basis, the High Court held that such amendments required a referendum under Section 328(7). This interpretation was dismissed during constitutional review. Maduku and other commentators argue that Sections 91 and 95(2)(b) concerning Bill No. 3 should be read together, treated as term limits, and require a referendum. However, given the precedent set by Mupungu, these arguments are unlikely to prevail in court.
In Mupungu, the Constitutional Court decisively rejected the High Court’s broad approach and drew a sharp doctrinal distinction between term limits and tenure conditions. Term limits refer to the number of terms an office holder may serve, while tenure conditions relate to retirement age, renewal mechanisms, or the duration of each term. The Court determined that increasing the retirement age from 70 to 75 does not constitute a term limit and therefore does not necessitate a referendum. Term limit refers only to the number of terms and not the length of each term, and that Section 328(7) is triggered only when an amendment increases or removes the number of terms an incumbent may serve, as contemplated in Section 86(2). Because the amendment in Mupungu did not alter the number of judicial terms, the Court ruled that no referendum was required. The extension of Chief Justice Malaba’s tenure was therefore constitutionally valid.
Professor Jonathan Moyo has argued that extending the presidential and parliamentary term cycle from five to seven years does not amount to amending a term limit provision. His reasoning is straightforward, the twoterm limit in Section 91 remains untouched; only the duration of each term changes and therefore Section 328(7) is not triggered. For once, I agree with Prof Moyo. His logic mirrors the Constitutional Court’s own doctrinal distinction in Mupungu. Both perspectives converge on the same constitutional principle, changing how long a term lasts is not the same as changing how many terms one may serve.
Bill No. 3 proposes to extend each parliamentary and presidential term from five to seven years while leaving the twoterm limit intact. Under the Mupungu framework,it talks to, modification of tenure conditions, length or cycle of a term, not term limits. Section 95(2)(b), which governs the operation or length of a presidential term, is not a term limit clause, and the number of permissible terms remains unchanged. The constitutional outcome is therefore clear, no referendum is required.
Section 328(7) is activated only when the number of terms is increased or when a term limit is removed. Because Bill No. 3 does neither, Parliament may enact the amendment with a twothirds majority in both Houses, without a referendum, even if the change benefits the incumbent. This mirrors the logic that ultimately validated Chief Justice Malaba’s extended tenure, the Constitution distinguishes between conditions of service and term limits.
