ZANU-PF cannot lawfully or politically disregard the circumstances under which its own resolution was adopted. Central to any rigorous constitutional analysis is the recorded address of Patrick Chinamasa, widely regarded as ZANU-PF’s principal legal authority. In that address to the Party Congress (watch video below), Chinamasa explicitly advised that the proposed constitutional amendment would require two referendums.
By Brighton Musonza
This statement was not a rhetorical flourish; it constituted a definitive legal interpretation of the procedural requirements governing constitutional amendment. Delegates relied upon this representation in forming their political and legal consent. Any deviation from this understanding is, therefore, not a mere tactical adjustment but a matter of profound constitutional significance.
Normative Conditions of Resolutions
A resolution adopted on the basis of a specific legal understanding inherently incorporates that understanding as part of the normative conditions underpinning its adoption. The legal characterisation provided by Chinamasa formed an integral part of the framework validating the resolution. In constitutional law, resolutions do not exist independently of the circumstances and conditions under which they are formed. A departure from the conditions explicitly acknowledged at the time of adoption undermines procedural integrity, good faith, and compliance with constitutional norms. This principle is reflected in jurisdictions with strong adherence to procedural regularity, where courts have held that political or legislative decisions are inseparable from the legal assumptions relied upon at the time of adoption.
Legality, Legitimate Expectation, and Procedural Rationality
The bypassing of a referendum engages core constitutional doctrines. The principle of legality, foundational to constitutional democracies, requires that all exercises of public power comply with law, rational process, and reasoned justification. Legitimate expectation ensures that citizens, delegates, and political actors can rely upon representations made by authority figures, including procedural requirements articulated during decision-making processes. Deviating from such representations constitutes a breach of trust and raises questions of fairness and predictability. Procedural rationality further demands adherence to the structured processes intended to guarantee transparency, deliberation, and accountability. Selective compliance transforms constitutional amendment into an instrument of expedience, undermining its legitimacy.
Comparatively, in South Africa, the Constitutional Court in Certification of the Constitution of the Republic of South Africa, 1996 emphasised that procedural compliance in the enactment of constitutional provisions is essential to ensure the legitimacy of constitutional change. Similarly, courts in India have repeatedly affirmed that substantive constitutional amendments are subject to procedural safeguards and cannot be excused by political convenience. These examples illustrate that deviation from established procedural requirements can render an amendment constitutionally vulnerable, irrespective of political support.
Doctrine of Legality and Constitutional Safeguards
The doctrine of legality imposes an obligation on political actors to respect law as correctly interpreted. Any exercise of authority that contradicts prior authoritative legal positions risks being characterised as arbitrary or unconstitutional. In Zimbabwe, constitutional amendments engage the most fundamental principles of governance, directly affecting the relationship between the state and the citizen. Referendums, where required, are not symbolic; they constitute the direct exercise of popular sovereignty, the constituent power of the people. Circumventing them converts a legitimate constitutional exercise into an act of political overreach, undermining the rule of law and threatening public confidence in governance.
Popular Sovereignty and Political Legitimacy
Constitutional amendments affect the foundational compact between the state and the citizen. Any attempt to disregard procedures previously acknowledged undermines the legitimacy of the amendment and, by extension, the credibility of the entire constitutional order.
If ZANU-PF proceeds inconsistently with the position articulated to its Congress, the amendment may be open to challenge on the grounds of procedural irregularity, constitutional inconsistency, and violation of political consent. Comparative jurisprudence reinforces this position: in the German Federal Constitutional Court’s jurisprudence, for example, procedural irregularities in constitutional amendments have led to annulments or legal declarations restricting the amendment’s implementation, reflecting the judiciary’s role in upholding procedural integrity as essential to democratic legitimacy.
Judicial Remedies and Enforcement Mechanisms
Should the amendment be advanced contrary to previously acknowledged legal requirements, judicial review may provide effective remedies. Potential challenges include petitions for declaratory relief, seeking recognition that the amendment process violated procedural and constitutional standards, and applications for injunctive relief to prevent enforcement until compliance with constitutional requirements is ensured. Courts may also invoke doctrines of ultra vires action or constitutional nullity, declaring acts taken outside prescribed procedures invalid. Such remedies are not merely theoretical: across constitutional democracies, courts have consistently invalidated amendments or legislation enacted in breach of procedural safeguards, including in Kenya, India, and South Africa, reinforcing the principle that procedural fidelity is inseparable from constitutional legitimacy.
Procedural Integrity and Rule of Law
At its core, the argument rests on the link between procedure and legitimacy. Constitutional governance is underpinned by predictable, lawful, and rational processes. To deviate from conditions previously recognised at the time of the resolution risks undermining not only the immediate amendment but the broader institutional integrity of the state. Such conduct raises profound questions about the reliability of political actors, the protection of citizen rights, and the enforceability of constitutional norms. Respect for the law is not optional; it constitutes the foundation of both political legitimacy and public trust.
Conclusion: Constitutional Imperative
The issue is not merely technical; it is constitutional, legal, and political. Political approval cannot be validly secured through the invocation of constitutional necessity only to later disregard that necessity when implementing the decision. Any attempt to bypass the referendums previously deemed legally requisite exposes the amendment process to challenge on grounds of procedural irregularity, constitutional inconsistency, and violation of political consent. The consequences are profound: the rule of law, the credibility of the constitutional order, and the legitimacy of popular sovereignty are all implicated. Adherence to procedures and legal interpretations previously acknowledged is not a matter of convenience or strategy; it is a constitutional and political imperative.
