ZANU PF may find it difficult to amend the Constitution as it plans, particularly clauses which are tied to Chapter 4 which deals with the Declaration of Rights, because of the safeguards put in place.
Section 328 of the Constitution outlines the procedures which should be taken in the event that an amendment should be effected on the 2013 Constitution.
Constitutional law expert, Alex Magaisa said it “needed something special” to amend the Constitution.
“The Constitution is an important national document upon which all laws are founded,” he said.
“With an approval rating of more than 90%, the reasoning is that it should take something very important and unavoidable, to require an amendment to the Constitution.”
Magaisa, who acted as a technical advisor in the Constitution-making process, said this was the reason why section 328 of the Constitution sought to make it difficult for the government of the day to amend the supreme law.
In line with section 328, a constitutional Bill can only be passed by a special majority and not a simple majority.
This means it can only be passed by a two-thirds majority of both houses of Parliament.
“It is important to emphasise that this is in respect of all members, not just members who are present when the vote is taken,” Magaisa explained.
“This means the requirement of a special majority is a particularly onerous one.”
An attempt to amend any section, which deals with term limits or sections to do with the Declaration of Rights, will have to be amended through a referendum according to section 328.
Another safeguard put in place by the section is that if term limits are to be extended they should not benefit the person who was in office prior to the amendment.
“Since all these safeguards could be removed if the provision which provides for them is easily amended, the provision contains an important mechanism of self-defence,” Magaisa continued.
“Section 328(9) provides that the provisions which require amendments of the Declaration of Rights and circumscribe the power to extend term limits must not be amended unless they are put to a national referendum.
“This means amendments to the provision which deals with amendments can only be effected via a national referendum, which makes it very onerous.”
The law expert said these safeguards depended on the balance of power in Parliament and the strength of the opposition because if the ruling party has a special majority in Parliament, then these can easily be removed.
“The effectiveness and efficiency of the safeguards depends on the balance of power in Parliament and in particular, the strength of the ruling party vis-à-vis the opposition,” he said.
“Where the ruling party has a special majority, these safeguards are easier to surmount as it is likely that a ruling party will be able to whip its members to vote in favour of the Constitutional Bill.”