Lawyer Douglas Coltart has warned that Constitutional Amendment Bill No. 3 contains a “serious constitutional loophole” that could allow Zimbabwe to go without general elections indefinitely.
Coltart said the amendments proposed by the Senate would unintentionally create a way for both presidential and parliamentary terms to be reset whenever a sitting president dies, resigns or is removed.
In a legal opinion addressed to all members of the National Assembly, Coltart said that as drafted, the Bill would repeal section 94(3) of the Constitution — the clause that currently governs how a successor assumes office mid-term.
Under the Senate’s changes, every president, including one elected by Parliament to fill a vacancy, would take office under section 94(1).
Coltart argues that this could be read to mean a replacement president starts a fresh seven-year term. Because Parliament’s term is linked to the president’s assumption of office under section 94(1)(a), that could also trigger a fresh seven-year parliamentary term.
“The result is that Zimbabwe may never have a general election ever again,” he said. “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.”
Coltart said the process could “theoretically be repeated indefinitely, allowing the life of Parliament to be continually renewed without the electorate ever being called upon to vote.”
He opined that the scenario was “never presented to Parliament by the proponents of the Bill as being the intention behind the Bill.”
Coltart said he was giving the drafters “the benefit of the doubt that the loophole has been created inadvertently.”
He argued that legislation, particularly constitutional legislation, should not leave open ambiguities capable of producing consequences “so fundamentally inconsistent with democratic governance.”
Under the existing Constitution, there are two ways a president assumes office. First, after a general election, under section 94(1). Second, a successor who fills a vacancy under section 94(3) after the death, resignation or removal of a president.
Section 143 links the duration of Parliament to a president who assumes office under section 94(1). This means a mid-term successor does not restart the electoral cycle.
The Senate’s amendments would repeal section 94(3). Clause 7 of the Bill replaces section 101 so that, after a vacancy, the Vice-President acts as president until Parliament elects a new one under the proposed section 92.
The Bill also repeals the current section 92(1), which requires the election of the president to take place within the period set by section 158, the Constitution’s “Timing of elections” clause.
Coltart said it should be “uncontroversial” for MPs across the political divide to close the loophole.
He recommends making it explicit that a president elected to fill a vacancy serves only the remainder of the previous president’s term, and that the election of such a president does not start a new parliamentary or electoral cycle.
“The Senate’s recommendations provide an opportunity to make those principles explicit and close the loophole,” he wrote.
Meanwhile, Constitutional Amendment Bill No. 3 passed through Parliament on Tuesday, 30 June, and now awaits presidential assent.
Leave a Reply Cancel reply