Coltart says latest constitutional amendment is ‘illegitimate’ and ‘illegal’

Human rights lawyer Doug Coltart has vehemently challenged the Constitution of Zimbabwe Amendment (No. 3) Act, 2026, labelling it both “illegitimate” and “illegal”. The amendment, which notably extends presidential and parliamentary terms from five to seven years and alters the method of presidential election from popular vote to parliamentary selection, has ignited a fierce debate over constitutionalism in Zimbabwe. Coltart's arguments centre on alleged procedural flaws during its enactment, including inadequate public consultation, a questionable parliamentary supermajority, and the critical absence of a national referendum, particularly given its impact on term-limit provisions and the incumbent President. This article delves into the legal intricacies of these claims, examining the amendment's compliance with Section 328 of the Constitution of Zimbabwe, 2013, and its broader implications for democratic governance and the rule of law.

Zimbabwe's legal and political landscape has been significantly stirred by the recent enactment of the Constitution of Zimbabwe Amendment (No. 3) Act, 2026 (CAB3), which has drawn sharp criticism from prominent human rights lawyer Doug Coltart. Coltart has publicly declared the amendment to be both “illegitimate” and “illegal”, asserting that the process leading to its adoption was fundamentally flawed and failed to adhere to the constitutional requirements for amending the nation's supreme law.

The core of the controversy lies in the extensive changes introduced by CAB3, particularly the extension of presidential and parliamentary terms from five to seven years, and a radical shift in the presidential election mechanism from direct popular vote to selection by a joint sitting of Parliament. These amendments, signed into law by President Emmerson Mnangagwa, have sparked a national debate on the integrity of Zimbabwe's constitutional framework and the principles of democratic governance. This article will critically examine the legal and constitutional arguments underpinning Coltart's challenge, focusing on the procedural and substantive compliance of CAB3 with the Constitution of Zimbabwe, 2013, and its far-reaching implications for the country's rule of law.

The Constitution of Zimbabwe, 2013, adopted after a national referendum, serves as the supreme law of the land, establishing the framework for governance and enshrining fundamental rights. Chapter 14, specifically Section 328, sets out the stringent procedures for amending this foundational document. Key requirements include the Speaker giving at least ninety days' notice in the Gazette of the precise terms of a Constitutional Bill, followed by Parliament inviting public views through public meetings and written submissions. Crucially, a Constitutional Bill must be passed by the affirmative votes of at least two-thirds of the membership of both the National Assembly and the Senate at its final reading.

Furthermore, Section 328 contains specific safeguards for certain provisions. An amendment to a term-limit provision, the effect of which is to extend the length of time a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office before the amendment. Moreover, Section 328(6) mandates a national referendum if a Constitutional Bill amends Chapter 4 (the Bill of Rights), and Section 328(9) stipulates that Section 328 itself can only be amended by following the procedures set out in subsections (3), (4), (5), and (6), implying a referendum if such an amendment affects term limits or the Bill of Rights. Prior to CAB3, the Constitution of Zimbabwe Amendment (No. 2) Act, 2021, also introduced significant changes, particularly to judicial appointments and tenure, drawing similar criticisms regarding presidential overreach and procedural integrity.

The Constitution of Zimbabwe Amendment (No. 3) Act, 2026, introduces sweeping changes, including extending the terms of office for the President, Members of Parliament, and local authorities from five to seven years. It also fundamentally alters the presidential election process, replacing direct popular election with an election by a joint sitting of Parliament. Other notable provisions include enlarging the Senate, allowing the President to appoint additional senators based on professional skills, establishing a new Zimbabwe Electoral Delimitation Commission, and transferring responsibility for the voters' roll to the Registrar-General.

Doug Coltart's assertion that CAB3 is both “illegitimate” and “illegal” is grounded in several key arguments challenging both the procedural and substantive aspects of its enactment. A primary concern revolves around the alleged inadequacy of public consultation. Section 328(4) of the Constitution explicitly requires Parliament to invite public views through public meetings and written submissions. Coltart contends that the number of hearings held across the country was “absurdly low” for a population of Zimbabwe's size, and many public hearings were marred by violence, effectively preventing opponents of the Bill from presenting their views. This raises serious questions about whether the spirit and letter of public participation, a cornerstone of constitutional amendment, were genuinely observed.

Central to Coltart's legal challenge is the argument that CAB3's extension of presidential and parliamentary terms, particularly for the incumbent, necessitates a national referendum under Section 328 of the Constitution. Section 328(7) unequivocally states that an amendment to a term-limit provision extending the length of time a person may hold office does not apply to an incumbent. Furthermore, Section 328(9) mandates a referendum to amend Section 328 itself if it affects term limits. While proponents of the amendment argue that extending the *length* of a term is distinct from changing the *number* of terms, and thus does not trigger a referendum, Coltart counters that Section 328 defines a term-limit provision as one that limits the *length of time* a person may hold office, making the extension directly applicable to this protective clause. The inclusion of a clause stating the amendment applies “notwithstanding Section 328(7)” within CAB3 itself is seen by critics as an explicit attempt to circumvent this constitutional safeguard.

The substantive changes introduced by CAB3 also raise significant concerns regarding democratic principles and the separation of powers. The shift from direct popular election of the President to election by a joint sitting of Parliament fundamentally alters the democratic mandate of the head of state, potentially diminishing accountability to the electorate. This, coupled with the President's expanded power to appoint additional senators and changes to electoral bodies, is viewed by critics as a move towards consolidating executive power and undermining institutional checks and balances, echoing similar criticisms levelled against the Constitution of Zimbabwe Amendment (No. 2) Act, 2021, which modified judicial appointments.

The legality of CAB3 is currently being tested in the courts. MDC leader Douglas Mwonzora has filed an application with the Constitutional Court, arguing that President Mnangagwa acted unlawfully by assenting to the legislation without first submitting it to a national referendum, particularly as it affects provisions within the Bill of Rights (Chapter 4) and directly benefits the incumbent. Similarly, former legislator Prince Dubeko Sibanda has challenged clauses extending presidential and parliamentary terms, asserting they violate constitutional amendment procedures and are “constitutionally incompetent.” These ongoing legal battles highlight the deep divisions over the interpretation of constitutional amendment procedures and the extent of parliamentary power in altering the foundational document without direct popular mandate. While an earlier Constitutional Court ruling dismissed a pre-signing challenge by war veterans, the current applications delve into the post-enactment legality and the direct application of Section 328's safeguards.

The Constitution of Zimbabwe Amendment (No. 3) Act, 2026, represents a profound shift in Zimbabwe's constitutional architecture, with significant implications for the nation's democratic trajectory and the rule of law. Doug Coltart's characterisation of the amendment as “illegitimate” and “illegal” underscores a widespread concern among legal professionals and civil society regarding the integrity of the amendment process and the substantive impact of the changes. The arguments surrounding inadequate public consultation, the alleged manipulation of parliamentary processes, and critically, the circumvention of the referendum requirement for term-limit extensions, strike at the heart of constitutionalism and popular sovereignty.

For legal practitioners, the ongoing challenges to CAB3, particularly those brought by Douglas Mwonzora and Prince Dubeko Sibanda, will be crucial in shaping the interpretation and enforcement of Section 328 of the Constitution. The outcomes of these cases will determine the extent to which constitutional safeguards against executive overreach and the erosion of democratic principles can be upheld. Practitioners must closely monitor judicial pronouncements, as they will provide vital guidance on the validity of the amendment and its practical application. The debate surrounding CAB3 serves as a stark reminder of the perpetual tension between parliamentary power and constitutional limits, urging vigilance in defending the foundational principles of a democratic state.