THE MUPUNGU PRECEDENT AND THE PUSH FOR LONGER TERMS: WHAT THE CONSTITUTION REALLY SAYS

The debate over extending Zimbabwe’s electoral cycle has intensified in recent months, with supporters of the proposal pointing to the Constitutional Court’s judgment in the Mupungu case as the strongest legal foundation for the changes. According to this argument, the Court has already provided clear guidance on how constitutional amendments should be interpreted when they affect people already holding office.

The key issue revolves around section 186(4) of the Constitution. The Court held that the provisions dealing with the continuation in office of judges apply not only to future office holders but also to those who were already serving when the amendment was made. In simple terms, the judges who were already in office were not excluded from the benefits of the amended constitutional provisions.

The judgment emphasized that the wording of section 186(4) is clear and broad. There is nothing in its language suggesting that it only applies to judges appointed after the amendment took effect. The Court found no inconsistency or contradiction in applying the provision to serving judges.

One of the main questions before the Court concerned the phrase “notwithstanding section 328(7).” Some legal arguments suggested that this wording either changed or overrode the protections found in section 328(7), which limits the extension of terms for certain public office holders. The Court rejected those interpretations.

Instead, the judges concluded that the clause was inserted to clarify that the amendments in question did not alter any constitutional term-limit provisions. Since term limits themselves remained untouched, section 328(7) was not violated. The Court therefore interpreted the Constitution in a way that allowed all relevant provisions to operate together without conflict.

Supporters of the proposed seven-year electoral cycle argue that this reasoning applies directly to the current constitutional amendment debate. They say the “notwithstanding section 328(7)” clauses found in the proposed changes serve exactly the same purpose identified by the Court. Rather than removing term-limit protections, they simply make it clear that the changes do not amend those protections.

Under this interpretation, section 328(7) is only triggered when the actual wording of a protected term-limit provision is amended. The Constitutional Court’s approach was strongly based on the text of the Constitution itself. The judges focused on what was actually changed, not on political consequences or indirect effects that might result from those changes.

Supporters further argue that accepting an effects-based interpretation would create serious problems. Almost any constitutional amendment could then be challenged on the basis that it indirectly affects a protected provision. The Court rejected that approach in Mupungu and instead relied on the plain wording of the Constitution.

Another important principle relied upon is the “always speaking” doctrine. This legal principle holds that constitutional provisions apply to present and ongoing circumstances. Those backing the seven-year term proposal argue that this doctrine allows the amended electoral cycle to apply immediately to the current term of office.

Under this view, the term that began after the September 2023 elections would continue until September 2030. Supporters insist this would not amount to unlawful retroactive legislation but would simply reflect the normal operation of a constitutional amendment on an ongoing term.

They also point out that section 91(2), which limits a president to two terms, remains unchanged. President Emmerson Mnangagwa’s eligibility would therefore remain exactly as it is under the current Constitution. According to this interpretation, the proposal affects the length of the electoral cycle rather than the number of terms a president may serve.

For those advancing this position, the Constitutional Court’s judgment in Mupungu leaves little room for doubt. They argue that the proposed reforms rest on established constitutional principles and that any alternative reading would contradict both the text of the Constitution and the Court’s own reasoning.