The real issue in the amendment debate: Legality, legitimacy, and the conflict of interest in constitutional change

By Dr Godfrey Gandawa

 

Public discussion around the proposed amendment has drifted into deliberate misdirection. The narrative has been reduced to a technical argument about sections 117, 131, and 328 of the Constitution, as if the only question is whether Parliament possesses amendment powers. No one is disputing those powers. No one is contesting section 110. No one is arguing that Parliament cannot amend the Constitution.

The real issue lies elsewhere.

The core concern is not the existence of amendment powers, but the context in which those powers are being exercised, the interests of those exercising them, and the constitutional safeguards being bypassed. The debate must return to the principles of constitutionalism, institutional integrity, and public trust.

2. The Constitutional Safeguard: Why the Referendum Matters

The Constitution of Zimbabwe requires a referendum for certain categories of amendments, particularly those affecting foundational democratic structures. This safeguard exists for a simple reason: office-holders should not unilaterally change the rules that govern their own tenure or authority.

The referendum is not a political preference.

It is a constitutional design feature.

It ensures that when amendments affect the duration, structure, or limits of political power, the final decision rests with the public — the only actor that does not stand to benefit personally.

The current attempt to distinguish “elongation” from “term limits” is a semantic strategy that avoids this safeguard. In constitutional interpretation, effect matters more than wording. Extending the duration of office has the same practical consequence as altering term limits: it prolongs the time incumbents remain in power.

Avoiding the referendum does not resolve the legitimacy problem, it amplifies it.

3. The Core Constitutional Principle: Power Must Not Be Used for Personal Benefit

Constitutional democracies rest on the principle that public power must be exercised in the public interest, not for personal or institutional gain. This principle applies with particular force when the amendment affects:

• the tenure of sitting MPs,
• the tenure of Cabinet members,
• and the tenure of the President.

A constitutional amendment that benefits its authors raises unavoidable questions about impartiality, propriety, and democratic accountability.

4. The Conflict of Interest Problem

This is the heart of the matter.

4.1 Parliament voting to extend its own term

Members of Parliament are being asked to vote on a measure that directly benefits them. This creates a direct conflict of interest, because MPs stand to gain additional years in office.

4.2 Cabinet recommending a Bill that benefits Cabinet

Cabinet members, who are also MPs, recommended the Bill. They stand to benefit from its passage. This raises concerns about institutional self-interest.

4.3 The President assenting to a Bill that extends his own tenure

The President is expected to assent to a law that prolongs his own time in office. Comparative constitutional practice treats such scenarios as requiring heightened scrutiny.

4.4. Why the referendum is essential here

The referendum exists precisely to remove this conflict of interest by giving the final decision to the public.

Avoiding the referendum means the conflict remains unresolved.

5. Legality vs Legitimacy in Constitutional Amendment

In constitutional theory, legality and legitimacy are not the same.

Legality

• Parliament may follow the procedural steps for passing an amendment.
• The amendment may satisfy the textual requirements of sections 117, 131, and 328.
• On a narrow reading, the process may appear procedurally compliant.

Legitimacy

• The referendum safeguard exists to prevent self-interested amendments.
• Extending the tenure of sitting office-holders without public consent raises concerns about constitutional ethics.
• The semantic distinction between “term limits” and “elongation” does not resolve the underlying legitimacy issue.
• A constitutional amendment that benefits its authors may be legal in form but illegitimate in substance.

Legality answers the question, “Was the procedure followed?”

Legitimacy answers the question, “Was the power exercised in a manner consistent with constitutionalism?”

A constitutional democracy requires both. Those who present themselves as architects, interpreters, or strategists understand this distinction perfectly well. Yet they continue to package procedural compliance as constitutional virtue, hoping the public will mistake technical legality for democratic legitimacy. In doing so, they underestimate the very people in whose name the Constitution exists. But constitutional systems have long memories, and democratic societies have even longer ones. When leaders are encouraged to treat citizens as spectators rather than sovereigns, the consequences do not arrive suddenly — they accumulate, they harden, and eventually they confront the nation with a question no amendment can avoid: What remains of constitutionalism when legitimacy is treated as optional?

6. Why Conflict of Interest Matters in Constitutional Amendment

Constitutional amendment is not an ordinary legislative act. It is an exercise of foundational power. When the actors who benefit from an amendment are the same actors proposing, voting for, and assenting to it, the amendment process becomes structurally compromised.

Conflict of interest matters because:

• It undermines public trust.
• It distorts the purpose of amendment powers.
• It erodes the legitimacy of constitutional change.
• It bypasses the safeguard designed to ensure impartiality — the referendum.

Comparative constitutional practice recognises that amendments affecting the tenure of incumbents require independent checks, public consent, or delayed implementation to avoid self-benefit. These safeguards exist to prevent exactly the scenario being debated.

7. Academic Standards and the Conflict-of-Interest Question

A striking feature of the current debate is the reluctance to confront the conflict-of-interest issue using the same analytical standards that academics ordinarily apply in constitutional interpretation. In any neutral context — whether examining another country, another government, or another constitutional system — scholars would immediately identify the structural problem that arises when office-holders amend provisions that directly affect their own tenure. This is not a controversial position; it is a foundational principle of constitutional ethics.

The principle is simple: those who stand to benefit personally from a constitutional amendment cannot be the sole arbiters of that amendment’s validity or desirability. This is why many constitutions, including Zimbabwe’s, incorporate safeguards such as referenda, independent commissions, or delayed implementation. These mechanisms exist to remove self-interest from the amendment process and ensure that constitutional change reflects the public interest rather than institutional advantage.

It is therefore difficult to reconcile the current narrative with the analytical standards that academics routinely apply. The conflict of interest is not subtle. Parliament is voting on its own extension. Cabinet, whose members are also MPs, recommended the Bill. The President is expected to assent to a law that prolongs his own tenure. These are precisely the circumstances in which constitutional scholars typically insist on heightened scrutiny and independent public consent.

If the same scenario were unfolding in another jurisdiction, the academic commentary would be unequivocal. The conflict of interest would be identified immediately, and the referendum safeguard would be recognised as the appropriate constitutional remedy. The principles do not change simply because the actors are familiar or because the amendment is politically sensitive.

The current avoidance of this point is not due to any ambiguity in constitutional doctrine. It reflects a selective application of principles — a willingness to emphasise procedural legality while overlooking the deeper requirements of constitutional legitimacy. Highlighting this inconsistency is not an attack on individuals; it is a reminder that constitutional interpretation must remain principled, consistent, and anchored in the standards that define academic integrity. No one operating with their faculties intact can plausibly claim not to see this reality. To ignore it requires either wilful blindness or the comfort of incentives that reward looking away.

8. Why the “We Are Not Touching Term Limits” Narrative Is Misleading

The argument that “term limits remain intact” is a linguistic manoeuvre that avoids the substantive issue. Constitutionalism evaluates amendments by their consequences, not their labels.

If elongation is permissible once, it becomes permissible again.

A safeguard that can be stretched once can be stretched indefinitely.

A constitutional protection that can be bypassed through wording is no protection at all.

The referendum requirement is not triggered by the phrase “term limits.” It is triggered by any amendment that affects the duration of office.

Name it as you please; the truth lies bare for all to see, save for the paid passer-by who prefers the comfort of blindness.

9. Conclusion: The Issue Is Institutional Integrity, Not Political Preference

The debate is not about personalities. It is not about parties. It is not about political loyalties. It is about constitutional ethics, institutional legitimacy, public trust, and the integrity of amendment processes.

A constitutional amendment that extends the tenure of its authors, avoids the referendum safeguard, and leans on semantic manoeuvres to justify self-benefit may satisfy procedural legality, but it struggles to meet the demands of constitutional legitimacy.

The Constitution is not merely a text to be navigated.

It is a framework of principles to be honoured — and when those principles are bent for convenience, the question that remains is not political but foundational:

What becomes of a Republic when its safeguards are treated as obstacles rather than obligations? It drifts into perilous territory, where the cost is not paid at once — but it is always paid.