Critique 3: A disguised amendment of section 67 (3)
The most doctrinal critique argues that because the right in section 67(3) is exercised through registration, transferring registration and roll custody substantively affects section 67(3) and therefore engages section 328(6). This is an effects-based reading of entrenchment: a constitutional change that bears on the operation of a Chapter 4 right is, on this argument, an amendment of that right.
Critique 3 Rejoinder: Section 328(6) has not been triggered
Section 328(5) in Chapter 18 provides for the general amendment route by a two-thirds majority in each House. Section 328(6) requires a referendum only where a Bill seeks to amend Chapter 4 or Chapter 16; section 328(9) separately protects section 328 itself. Clause 2 amends none of these. New section 43A is inserted in Chapter 3. The repeal of section 239(c)—(e) by Clause 17 amends Chapter 12. None of the entrenched chapters is touched.
This is the third key distinction: the custodian and the lock are not the same constitutional thing. A change to the custodian under new section 43A and Clause 17 is not, by that fact alone, a change to section 67(3) or to section 328 itself.
Mupungu forecloses the effects-based reading
The controlling authority is Mupungu v Minister of Justice, Legal and Parliamentary Affairs & Anor CCZ 7/21 — arising under the Constitution of Zimbabwe Amendment (No. 2) Act. The Court’s reasoning is text-first: the entrenchment mechanisms in section 328 are triggered by amendment of protected text, not by every consequential, political or administrative effect that may be said to follow from a constitutional redesign.
That logic defeats the claim that any change affecting the operation of section 67(3) automatically becomes an amendment of section 67(3). If that argument were accepted, section 328(6) would become unworkable: almost any constitutional amendment could be restated as an indirect effect upon some Chapter 4 right. The Court did not accept that reading, and the textual trigger remains the law.
Ordinary meaning, expressio unius, and constitutional coherence
Three interpretive principles reinforce the textual reading. First, ordinary meaning: in Hewlett v Minister of Finance 1981 ZLR 571 (S), Endevour Foundation 1995 (1) ZLR 339 (S), ZIMRA v Murowa Diamonds 2009 (2) ZLR 213 (S) and Tsvangirai v Mugabe CCZ 24/17 — the latter directly cited in Mupungu — the courts have consistently held that legal text must be given its ordinary grammatical meaning unless that produces absurdity. On that method, section 328(6) is a textual filter, not an effects filter.
Second, expressio unius est exclusio alterius: the express enumeration in section 328(6) of Chapter 4 and Chapter 16, together with the self-protection in section 328(9), excludes by implication unenumerated provisions such as section 239 and new section 43A. Third, constitutional coherence: section 67(3), section 239(a), section 239(c)—(e), section 155, section 157 and section 328 perform different constitutional work and cannot be collapsed into one undifferentiated argument.
Section 235 and Mavedzenge must be distinguished, not denied
Critics invoke section 235 and Mavedzenge. The correct response is distinction, not dismissal. Section 235 protects the independence of commissions in the exercise of functions constitutionally assigned to them. Mavedzenge stands for protection against executive direction and control over a commission’s assigned function — a protection the Constitutional Court rightly enforced.
Mavedzenge does not constitutionalise the identity of the function-holder for all time. Once the Constitution itself — by valid section 328(5) amendment — reallocates a function away from section 239(c)—(e), section 235 cannot be used to smuggle those subsections into the referendum-protected zones when section 328(6) does not say so. The independence guarantee is parasitic on the function, not its prison. Critics who treat the assignment of registration to ZEC as constitutionally permanent have read section 235 backwards.
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