Mwonzora,
one
of
the
key
negotiators
and
drafters
of
Zimbabwe’s
2013
Constitution,
said
the
proposed
amendments
currently
before
Parliament
affect
constitutional
provisions
contained
in
the
Bill
of
Rights
and
therefore
require
approval
through
a
national
referendum.
His
remarks
come
as
debate
over
the
bill
continues
in
Parliament,
with
supporters
of
the
bill
maintaining
that
legislators
have
the
authority
to
pass
the
proposed
changes
without
seeking
direct
approval
from
voters.
In
an
interview
with
CITE,
Mwonzora
said
the
argument
advanced
by
Justice
Minister
Ziyambi
Ziyambi
and
Zanu
PF’s
legal
secretary
Paul
Mangwana,
that
CAB3
does
not
amend
the
Bill
of
Rights
and
therefore
does
not
require
a
referendum,
is
flawed.
“By
the
argument
of
Zanu
PF,
the
bill
has
to
be
taken
for
a
referendum,”
he
said.
“And
there
is
another
justification
for
the
referendum,
that
is
the
second
referendum.
It
is
that
where
there
is
a
need
to
extend
the
term
limit,
you
must
have
a
referendum.
But
where
there
is
the
need
to
benefit
the
incumbent,
then
you
must
have
another
referendum.”
Mwonzora
said
his
position
is
based
on
the
same
constitutional
interpretation
used
by
supporters
wanting
the
bill.
“A
referendum
is
unavoidable
and
I
am
using
Zanu
PF’s
own
argument,”
he
said.
“Zanu
PF
says
this
bill
cannot
be
taken
to
a
referendum
because
it
does
not
amend
the
Bill
of
Rights.
Looking
at
that
argument,
we
then
look
at
whether
this
bill
in
any
way
affects
the
Bill
of
Rights.”
The
Bill
of
Rights
is
contained
in
Sections
40
to
87
of
Zimbabwe’s
Constitution,
placing
Section
67,
which
deals
with
political
rights,
squarely
within
its
scope.
“Section
67
contains
what
are
called
political
rights
and
under
Section
67
there
are
two
important
political
rights,
the
right
to
vote
and
the
right
to
be
voted
for,”
Mwonzora
said.
“Section
67
says
under
the
right
to
vote,
every
Zimbabwean
adult
over
the
age
of
18
has
the
right
to
vote.
That
means
every
Zimbabwean,
irrespective
of
station
in
life,
position,
whether
they
are
an
MP
or
not,
has
the
right
to
vote.”
Therefore
provisions
contained
in
CAB3
would
effectively
alter
that
right
by
restricting
participation
in
the
election
of
a
President
under
certain
circumstances.
“The
amendment
then
goes
on
to
say
that
the
President
is
only
going
to
be
voted
for
by
Members
of
Parliament,
which
means
that
provision
has
now
been
effectively
amended,
and
it
has
been
amended
by
implication,”
Mwonzora
said.
He
noted
the
practical
effect
of
the
proposed
amendment
would
be
to
qualify
an
otherwise
universal
right
because
it
will
now
be
possibly
read
as
follows:
“‘every
Zimbabwean
has
the
right
to
vote,
provided
that
if
it
is
a
presidential
election
then
only
Members
of
Parliament
are
allowed
to
vote,’”
“So
Section
67
has
been
amended
by
implication
and
by
the
argument
of
Zanu
PF,
by
their
own
argument,
then
it
has
to
be
taken
for
a
referendum.”
Beyond
the
issue
of
political
rights,
Mwonzora
argued
that
CAB3
also
runs
into
constitutional
hurdles
relating
to
term
limits
and
provisions
governing
incumbents.
He
cited
Section
328(7)
of
the
Constitution,
which
was
specifically
designed
to
prevent
office
holders
from
benefiting
from
constitutional
amendments
extending
their
terms
of
office.
“In
fact,
in
terms
of
the
Constitution,
where
there
is
an
extension
of
term,
so
assuming
that
the
referendum
for
extension
of
term
succeeds,
the
Constitution
says
that
extension
cannot
benefit
the
incumbent,”
Mwonzora
said.
“Now,
if
you
want
the
extension
to
benefit
the
incumbent,
then
you
have
to
amend
Section
328
(7).”
The
Constitution
imposes
a
higher
threshold
for
any
attempt
to
amend
that
safeguard.
Mwonzora
added.
“Section
328
(7)
says
if
there
is
any
need
to
extend
the
period
of
time
that
a
person
holds
office
and
if
there
is
need
for
the
incumbent
benefits,
then
this
must
be
done
as
if
you
are
amending
the
Bill
of
Rights,”
he
said.
“We
all
know
the
Bill
of
Rights
is
amended
by
referendum.
So
Section
328
is
also
amended
only
by
referendum.”
Mwonzora
argued
this
makes
it
impossible
for
Parliament
to
lawfully
bypass
a
referendum.
“So
they
cannot
avoid
a
referendum
at
all,
looking
at
even
their
own
arguments,”
he
said.
Even
if
Zanu
PF
supporters
insist
Parliament
has
the
constitutional
authority
to
amend
the
Constitution
without
consulting
voters
in
this
instance,
Mwonzora
said
such
arguments
overlook
a
key
constitutional
provision
governing
Parliament’s
powers.
“They
are
not
looking
at
Section
117
of
the
Constitution.
Section
117
says
that
Parliament
has
the
power
to
amend
this
Constitution
only
in
terms
of
Section
328.”
He
argued
that
Parliament’s
authority
is
therefore
not
unlimited
and
must
be
exercised
strictly
within
the
procedures
prescribed
by
Section
328.
“The
powers
of
Parliament
are
given
somewhere
around
Section
117
and
Section
117
says
that
Parliament
has
the
power
to
amend
the
Constitution
only
in
terms
of
Section
328,”
he
said.
“And
Section
328
provides
that
if
it
is
the
Bill
of
Rights
then
it
has
to
be
a
referendum.”
Mwonzora
further
contended
that
CAB3
suffers
from
another
legal
defect
because
it
combines
several
distinct
constitutional
issues
into
a
single
amendment
bill.
He
explained
that
Zimbabwe’s
Constitution
does
not
permit
provisions
extending
terms
of
office
and
provisions
allowing
incumbents
to
benefit
from
those
extensions
to
be
dealt
with
in
the
same
amendment
process.
“They
cannot
afford
two
referendums
but
they
also
have
another
problem,”
Mwonzora
said.
“The
Constitution
clearly
says
the
amendment
to
change
the
term
limit
and
the
amendment
allowing
the
incumbent
to
benefit
cannot
be
in
the
same
amendment.
The
provisions
cannot
be
in
the
same
bill.”
He
noted
the
current
bill
contains
multiple
clauses
dealing
with
extensions
of
terms
for
the
President
and
Members
of
Parliament,
as
well
as
provisions
relating
to
who
benefits
from
those
extensions.
“We
have
four
clauses
that
deal
with
extension
of
time,
extension
of
time
for
President,
extension
of
time
for
Members
of
Parliament,
and
then
extension
of
term
for
benefit
by
the
President
and
benefit
by
Members
of
Parliament
and
that
makes
the
bill
inherently
illegal,”
Mwonzora
said.
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