No Referendum Needed To Extend Presidential Term, Says Nyambirai

Tawanda Nyambirai, a prominent lawyer and banker, has argued that Sections 91, 95, and 328 of the Zimbabwean Constitution neither require a referendum to introduce a seven-year presidential term nor prohibit a sitting president from benefiting from such an extension.

His remarks come amid ZANU-PF’s proposal to extend President Emmerson Mnangagwa’s second and final term by two years, from the current five years to seven.

Currently, the Constitution limits presidential terms to five years each, with a maximum of two terms, totalling ten years.

While some constitutional law experts maintain that a referendum would be necessary to amend the Constitution, Nyambirai insists that the cited sections permit the introduction of a seven-year term without a referendum and allow the incumbent president to benefit from the change. Nyambirai wrote on X:

“Much has been written about Section 91. It deals with the number of terms and not the duration of a single term. My concern is the duration of a single term. Therefore, I will not say more about Section 91.

“Section 95 appears to acknowledge that there is or could be another provision elsewhere that sets out Presidential terms.

“The 5-year term limit seems to only apply in the absence of another provision to the contrary elsewhere in the Constitution.”

According to Section 95(2), a President or Vice-President remains in office until they resign, are removed from office, or, after an election, are either re-elected or replaced by a newly elected President. It adds:

“And, except as otherwise provided in this Constitution, their terms of office are five years and coterminous with the life of Parliament.”

Nyambirai argued that, consequently, ZANU-PF can legally extend the presidential term through Parliament without the need for a referendum. He said:

“If this is correct, there is nothing to stop Zanu PF, through Parliament, and without a referendum, from introducing a new constitutional provision providing for Presidential term limits other than the 5-year Limit.

“Put differently, there is nothing to stop Parliament, with the necessary majority, from introducing a clause that says, ‘A Presidential term shall be 7, 8, or 10 years.

“Such a provision would not amend Section 95 (assuming it is the only section that provides for a Presidential term limit of 5 years).

“Such an insertion would apply to the sitting President without falling foul of Section 328(7) because the insertion will not be ‘an amendment to a term limit provision’.

“It will simply be an insertion to fill a gap or lacuna in the constitution. It appears the drafters of the Constitution did not themselves know the duration of the term of office they wanted.

“If they wanted a five-year term, it must have been very easy to just say that, ‘The duration of a Presidential term shall be 5 years’ rather than frame Section 95 the way they did.”

Nyambirai said he was not advocating for an amendment to the Constitution, but simply pointing out that there appears to be nothing preventing ZANU-PF from introducing a seven-year presidential term through Parliament without amending or contradicting Section 95.

He added that there is also nothing stopping President Mnangagwa from benefiting from such a change.

Nyambirai further noted that, in essence, such a presidential term could extend to 10 or even 15 years.