By Dr Masimba Mavaza
Zimbabwe’s Constitutional Court, sitting as a seven-judge bench in Harare on Wednesday, reserved judgment in a constitutional challenge against Constitutional Amendment Bill No. 3. The Court indicated that it would hand down its decision on a date yet to be announced.[CAB3]
The application was instituted by a coalition of war veterans and constitutional activists, represented by Prof. Lovemore Madhuku. The applicants seek a declaratory order and an interdict restraining the progression of CAB3, contending that the proposed amendments infringe upon Chapter 4 rights, the principle of separation of powers, and the constitutional imperatives governing public office, integrity, and avoidance of conflict of interest.
Central to the applicants’ case is the allegation that His Excellency President Emmerson Mnangagwa chaired Cabinet deliberations and participated in the approval of a constitutional amendment process from which he stands to derive direct political benefit. Counsel submitted that this conduct prima facie offends ss. 98 and 108 of the Constitution, which impose duties of impartiality, transparency, and accountability on holders of public office.
CAB3, gazetted earlier this year, proposes to extend the presidential and parliamentary terms from five to seven years; substitute direct presidential elections with an indirect parliamentary electoral college; augment presidential powers over the Senate; and restructure certain electoral institutions. Proponents frame the reforms as necessary for political stability, policy continuity, and institutional efficiency.
During oral argument, applicants’ counsel contended that several provisions of CAB3 engage entrenched clauses within the Constitution. They argued that such amendments are constitutionally permissible only upon compliance with s. 328, which mandates approval by a two-thirds majority in both Houses and, where applicable, ratification by a national referendum. Counsel further asserted that the pre-parliamentary process failed to satisfy the constitutional standard for meaningful public participation as required by ss. 141 and 328(3).
The State, in opposition, maintained that the application is premature. Counsel for the State submitted that Parliament remains seized with the Bill and that judicial review at this stage would constitute an impermissible interference with the legislative process. Reliance was placed on the doctrine of ripeness and the principle that courts do not adjudicate hypothetical or inchoate disputes absent a completed legislative act.
The Court, after hearing both sides, reserved judgment without making a determination on the merits.
Opinion
The Court’s approach is consistent with established constitutional doctrine. Until CAB3 is enacted into law, it remains a legislative proposal and not a justiciable act. A challenge at this stage risks compelling the Court to issue an advisory opinion, a function outside its jurisdiction under s. 167. Should the Bill become law, the applicants will have a live cause of action to test its validity against the Constitution. For now, the appropriate forum for contestation is Parliament and the public participation process it must facilitate. The Court’s restraint preserves the separation of powers while leaving the door open for substantive review if and when the amendments are enacted.
The outcome will bear materially on Zimbabwe’s constitutional trajectory, determining whether the proposed reforms proceed in their current form and clarifying the boundaries of judicial intervention in the legislative process.
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