CLAIM: Parliament cannot in terms of the constitution and the law legally postpone elections
SOURCE: News Hawks
VERDICT: Misleading
News Hawks, an online local media house, posted a message on X (formerly Twitter) on 14 January 2025 claiming that the Parliament of Zimbabwe cannot legally postpone elections in the country, according to the constitution and the law.
The context of the post was President Emmerson Mnangagwa’s recent invitation of ZANU-PF and CCC legislators to his farm viewed by some as a strategy to mobilise support for his plan to stay in power beyond his 2028 second-term constitutional limit to 2030.
‘While President Emmerson Mnangagwa rallied Zanu PF and main opposition CCC legislators to his farm at the weekend to mobilise support and create a critical political mass for his unpopular plan to stay in power beyond his 2028 second term constitutional limit to 2030, parliament cannot in terms of the constitution and the law legally postpone elections,’ reads the News Hawks post in part.
Citing legal experts, the publication further says the august House cannot extend the terms of office for the President and legislators without violating the constitution and breaking the law.
The Constitution of Zimbabwe and Elections
According to Section 119 of the Constitution of Zimbabwe, the Parliament’s role includes protecting the Constitution and promoting democratic governance of the country, ensuring the provisions of the Constitution are upheld, and that the State and all institutions and agencies of government act constitutionally and in the national interest.
Section 117 of the Constitution, which deals with the nature and extent of legislative authority, reads as follows:
‘(1) The legislative authority of Zimbabwe is derived from the people and is vested in and exercised in accordance with this Constitution by the Legislature.
(2) The legislative authority confers on the Legislature the power—
(a) to amend this Constitution in accordance with section 328;
(b) to make laws for the peace, order, and good governance of Zimbabwe; and
(c) to confer subordinate legislative powers upon another body or authority in accordance with section 134.’
Parliament in Zimbabwe is elected for a five-year term(Section 143 of the Constitution) which runs from the date the President-elect is sworn in and assumes office and stands dissolved at midnight on the day before the first polling day in the next general election. Once elected in an election the President and Members of Parliament serve for a five-year term before the next elections (Section 95(b) ). The same applies to Councillors (Section 277(1) (a)) of the Constitution in the local authorities.
The timing of elections in Zimbabwe according to Section 158 (1) (a), is such that they must be held so that polling takes place not more than thirty days before the expiry of the five years specified in section 143. On the other hand, Section 328 stipulates that an amendment to the Constitution to extend the presidential term limit must not benefit the incumbent. The question remains if that stipulation itself can be amended.
The Law and Elections in Zimbabwe
According to Section 38 of the Electoral Act, proclaiming the election date is the prerogative of the President after consultation with the Zimbabwe Electoral Commission. The Electoral Act is the law governing elections in the country.
Ghost of constitutional amendments past
This would not be the first time that Parliament and the President make major amendments to the Constitution affecting the conduct of elections. The major difference now is that for the first time this current constitution calls for the citizens’ involvement.
In 1987, following the Unity Accord, Parliament approved a constitutional amendment that brought in an executive president without the holding of an election. The amendment also stipulated a new 6 year presidential term instead of 5 years that Parliament had.
In 2005, Parliament again approved an amendment bringing in the Senate again. In this amendment, all those who had been voted into Parliament in the March 2005 elections moved into the House of Assembly while a new election was held November of that year to for senators.
In 2007, there was talk on harmonising elections. A presidential election was due in 2008 while Parliament had 3 years to go. How to harmonise? Extend the presidential term by another two years or cut the life of parliament and dissolve it? The latter was chosen and Parliament approved the required amendments.
In 2008 there was a major Constitutional amendment. Following a SADC led power sharing agreement, Robert Mugabe, Morgan Tsvangirai and Arthur Mutambara on September 15, 2008 signed the Global Political Agreement.
It, however, could not take effect until the Constitution was amended to create the post of Prime Minister and others. Parliament on February 5, 2009 passed Constitutional Amendment 19, overriding the existing constitutional provisions. Schedule 8 stated that:
For the avoidance of doubt, the following provisions of the Interparty Political Agreement, being Article XX thereof, shall, during the subsistence of the Interparty Political Agreement, prevail notwithstanding anything to the contrary in this Constitution.
This was the old Constitution, one might argue. In 2013, Zimbabwe adopted a new Constitution. This new Constitution stated in Section 92 that Vice Presidents were to be elected NOT appointed. Section 92(3) stated:
The President and the Vice-Presidents are directly elected jointly by registered voters throughout Zimbabwe, and the procedure for their election is as prescribed in the Electoral Law.
Section 101(1) further stated that it was this elected NOT appointed Vice President who would then take over the presidency and finish the term of the President, for whatever reason, could not:
101 Succession in event of death, resignation or incapacity of President or Vice-President
(1) If the President dies, resigns or is removed from office –
(a) the first Vice-President assumes office as President until the expiry of the former President’s term of office
However, this did not happen in the 2013 elections. The presidential candidates did not have running mates to be elected along with them. This was because the Constitution had transitional provisions contained in the Sixth Schedule. During the first ten years of the new Constitution, a presidential candidate was not required to have running mates but was to appoint his vice presidents after winning the election. In the case of the president’s incapacitation, the political party he belonged to had the right and duty to elect a new president on behalf of the whole country:
(b) the vacancy in the office of President must be filled by a nominee of the political party which the President represented when he or she stood for election.
This is what happened when President Mugabe resigned in 2017. His party ZANU-PF picked a nominee to replace him, in line with the Sixth Schedule although Section 101 stated that the first Vice President was to take over. This was constitutional because for the 10 year period between 2013 and 2023, the transitional provisions in the Sixth Schedule were in effect.
This meant that for the 2023 elections, the sixth schedule fell away and Section 92 on the Constitution came into effect requiring the election of vice presidents and NOT their appointment by the winning presidential candidate.
So what changed?
Constitutional Amendment 2 of 2021 is what happened. Among other things, this amendment took what had been meant to be transitional provisions, expiring after 10 years, and made them permanent. Sections 92 and 101 were repealed without ever having come into effect. The end result was that once again in 2023 there were no running mates and vice presidents were appointed NOT elected. It made the provision on parties nominating a president in the event of a vacancy, permanent instead of a transitional provision. Parliament did all that.
The only difference now is that in amending presidential terms or amending the provision of an incumbent benefitting from this change, the citizens have to be involved through a referendum. Parliament can, indeed, start the process from the Bill right up to passing it. Then it has to go to the people.
Former cabinet minister, Prof Jonathan Moyo, wrote on his X account that, ‘A proposal to amend the constitution is just that; a proposal, nothing less and nothing more. It is not a crime or a civic wrong for anyone to want or to seek to amend the Constitution of Zimbabwe. A constitutional proposal cannot be unconstitutional…. In this connection, all that matters is that proposals to amend the Constitution of Zimbabwe must be done and must proceed in terms of section 328 of the Constitution, as read with section 131.’
Conclusion
The claim: ‘Parliament cannot in terms of the constitution and the law legally postpone elections,’ has been rated as misleading in that the Constitution of Zimbabwe does give the legislature powers to amend the Constitution, which could in turn allow Parliament to legally postpone elections. Section 117 of the Constitution, which deals with the nature and extent of legislative authority, among other things, gives Parliament the power ‘to amend this Constitution in accordance with section 328’. Therefore, Parliament can amend the Constitution as long as any such amendments done by Parliament are done according to the Constitution to render them constitutional.
