MDC challenges CAA3 at ConCourt over ‘unlawful’ removal of direct presidential vote

Source: MDC challenges CAA3 at ConCourt over ‘unlawful’ removal of direct presidential vote —** CITEZW**

The opposition MDC led by Douglas Mwonzora, has filed its heads of argument with the Constitutional Court challenging the constitutional validity of the Constitution of Zimbabwe Amendment Act No. 3 of 2026 (CAA3), arguing the amendment unlawfully removes Zimbabweans’ right to directly elect the President without it first subjected to a mandatory referendum.

In papers filed on Thursday, the MDC and its leadership, contend that Section 3 of the Amendment Act, which amends Section 92 of the Constitution, fundamentally alters the manner in which the President is elected by restricting the franchise to Members of Parliament only, thereby stripping ordinary citizens of a right protected under Chapter 4 of the Constitution.

The first respondent is President Emmerson Mnangagwa, followed by the Parliament of Zimbabwe as the second respondent, Justice, Legal and Parliamentary Affairs Minister Ziyambi Ziyambi as the third respondent and Attorney-General Virginia Mabiza as the fourth respondent.

At the centre of MDC’s argument is that the amendment process was constitutionally defective because it altered a right enshrined in the Bill of Rights without the requisite referendum.

The applicants argue Section 67(3)(a) of the Constitution guarantees every Zimbabwean citizen over the age of 18 the right to vote “in all elections and referendums.”

Before the amendment, this included the right to vote directly for the President and the amendment, MDC argues, has effectively removed that right.

“The net effect of Section 3 has been to amend the right to vote as envisaged in Section 67(3)(a) of the Constitution of Zimbabwe,” MDC said in its heads of argument.

The MDC further argues that because Section 67(3)(a) falls within the Bill of Rights, any amendment affecting it must comply with Section 328(6) of the Constitution, which requires a referendum.

The party contends that Parliament and the President deliberately avoided mentioning Section 67 in the amending Act to circumvent this requirement.

“While Section 328(2) provides that an Act that seeks to amend the constitution must do so in express terms, it does not prevent a mischievous legislature from avoiding the consequences of an amendment by not mentioning the exact section it really wishes to amend,” MDC argued.

“The current legislature being the (Mnangagwa) and (Parliament) amended Section 67(3)(a) of the constitution without mentioning it in a hope to avoid a referendum.”

MDC also challenges the respondents’ argument that citizens retain a right to elect the President indirectly through their Members of Parliament, terming that the “Theory of the Unbroken Chain.”

The party argues this is “faulty and anomalous,” pointing to the 2008 general election where voters chose parliamentary and presidential candidates from different parties.

MDC took aim at President Mnangagwa’s role in the process, arguing he failed in his constitutional duty under Section 110(2)(f) to call for a referendum once it became apparent that the Bill of Rights was affected.

The party further alleges that President Mnangagwa acted as a “rubber stamp” for Parliament.

“Faced with the effect of Section 3 of the Amendment on the right to vote for the President as enshrined in Section 67(3)(a), (President Mnangagwa) must have called for a referendum in terms of Section 110(2)(f) of the Constitution,” argued the MDC.

The MDC is therefore asking the Constitutional Court to declare CAA3 unconstitutional and invalid on the grounds that:

“The amendment unlawfully removes or materially alters a right protected under Chapter 4 of the Constitution;

“The amendment was not subjected to the mandatory referendum required under Section 328(6);

“The President failed in his constitutional duty to uphold and defend the Constitution;

“Parliament cannot achieve indirectly what it could not achieve directly under Section 328(2).”

The MDC also relies on a string of constitutional precedents, including Temba Mliswa versus Parliament of the Republic of Zimbabwe (CCZ 02/21), Jonathan Moyo and Others versus Austin Zvoma and Others (SC 28/10), and Mfundo Mlilo versus The President of the Republic of Zimbabwe (SC 179/20), among others.

The amendments, passed by Parliament earlier this year and signed into law by President Emmerson Mnangagwa on July 7, 2026, have been widely criticised by citizens, opposition parties and civil society organisations.

Under the proposed changes, the President would be elected by Members of Parliament in a joint sitting of the Senate and the National Assembly, rather than through a direct popular vote.

The amendment also extends the presidential term from five to seven years, effectively postponing the next presidential election to 2030.

The MDC has condemned these amendments as “a major setback for democracy.”

In its heads of argument, the party warns unless the court strikes down the amendment, “Parliament could circumvent every entrenched right in Chapter 4 simply by amending another provision which produces the same result.”

The Constitutional Court has yet to set a date for the hearing.

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