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CAN THE CONSTITUTION PROTECT ITSELF? THE POLITICS OF AMENDMENT IN ZIMBABWE

By Princess Eugene Majuru

A constitution is meant to be the supreme and stable foundation of a nation’s legal order. Yet no constitution is completely fixed—it must be capable of change. Zimbabwe’s 2013 Constitution recognises this reality and provides a formal process for amendment. However, within that process lies a critical tension: if a constitution can be changed too easily, can it truly protect its own principles?

This question becomes central when examining Section 328, which governs constitutional amendments.

1. The Legal Basis for Amendment

Section 328(1) provides:

“An Act of Parliament may amend this Constitution…”

This is a powerful statement.

What it means:

The Constitution is not permanent

Parliament has the authority to change it

Constitutional evolution is legally permitted

This ensures flexibility, allowing the Constitution to adapt over time.

2. The Role of Parliamentary Majorities

Section 328(5) sets out the requirement for amendment:

“A Constitutional Bill must be passed by a two-thirds majority of the total membership of each House of Parliament.”

On paper:

A high threshold is required

Amendments are not meant to be easy

Broad political support is expected

In practice:

A strong parliamentary majority can meet this threshold

Amendments can be driven by political dominance rather than national consensus

3. When Referendums Are Required

The Constitution does include additional safeguards for certain provisions.

Section 328(7) provides:

“A Constitutional Bill that seeks to amend… Chapter 4 (Declaration of Rights) … must be approved by the people in a referendum.”

This is important:

Some parts of the Constitution are more protected than others

Public participation is required for fundamental rights changes

However:

Not all sections require a referendum

Many structural provisions can still be amended through Parliament alone

4. The Structural Weakness: Uneven Protection

The Constitution protects some areas more strongly than others.

Strongly protected:

Bill of Rights (Chapter 4)

Presidential term limits (with conditions)

Less protected:

institutional structures

governance arrangements

distribution of power

The result:

core rights may be protected, but the systems that enforce them can be altered more easily

5. The Risk of Political Constitutionalism

Where amendment power is concentrated in Parliament, a key risk emerges:

constitutional changes may reflect political interests

long-term principles may shift with political cycles

stability may be affected by frequent amendments

This creates what can be described as:

a Constitution that is legally supreme, but politically negotiable

6. The Deeper Constitutional Question

The amendment process raises a fundamental issue:

Who ultimately owns the Constitution—the people or the political majority in Parliament?

While the Constitution begins by asserting popular sovereignty, the amendment process places significant power in representative institutions.

7. Flexibility vs Stability

A constitution must strike a balance between:

flexibility (ability to adapt)

stability (protection of core principles)

Zimbabwe’s Constitution leans toward flexibility in many areas.

The challenge:

Too much flexibility risks:

weakening constitutional certainty

undermining long-term protections

shifting foundational rules too easily

8. Can the Constitution Limit Its Own Change?

Section 328 attempts to create safeguards through:

supermajority requirements

referendum provisions for key sections

However, these safeguards depend on:

political diversity in Parliament

active civic participation

institutional integrity

Without these, even strong legal safeguards can become procedural rather than substantive.

A Constitution That Can Change—But at What Cost?

Zimbabwe’s Constitution is not rigid—it allows amendment, adaptation, and evolution. This is necessary for any living legal system.

However, Section 328 also reveals a vulnerability:

the Constitution relies on political restraint as much as legal rules

its protection depends on how amendment powers are used

The result is a constitutional order that is:

flexible in design

adaptable in structure

but potentially exposed to political influence

The core question remains:

Can a constitution truly safeguard its principles if the mechanisms to change it are themselves shaped by political power?

In Zimbabwe’s case, the Constitution can change—but whether it can always protect itself in the process is a question that continues to unfold.

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