The Discipline of Constitutional Argument: Why Alarm Is Not Evidence

JOHANNESBURG – There is a particular authority that accompanies a statement issued by the Zimbabwe Council of Churches (ZCC) because invoking its role as a “watchman” summons moral urgency. It asks the nation to listen with its conscience.

But even moral authority must submit to constitutional discipline. The Council’s opposition to the Constitution of Zimbabwe (Amendment No. 3) Bill of 2026 rests on a familiar claim that the amendment is an elite power grab disguised as reform, one that risks harming both the nation and the constitutional legacy of President Emmerson Mnangagwa.

It goes further, calling for withdrawal of the Bill, the establishment of an independent commission, and failing that, a national referendum.
These are weighty interventions, but weight in constitutional law is not measured by argument, not tone.

Let us begin with the central charge that the amendment is “constitutionally, morally, and democratically compromised.” This is a conclusion, not a demonstration. A constitutional critique must do more than assert harm, indeed it must locate it. Which provisions of the Bill violate constitutional principles? In what way do they undermine separation of powers, erode judicial independence, or distort representative democracy?

READ MORE: Choosing Evolution Over Repetition

Without this level of specificity, the argument remains suspended in abstraction and gestures toward danger without identifying its source. This is a fatal flaw.

To say that an amendment is a “power grab” is to make a claim about the transfer or concentration of authority. But power, in constitutional systems, is always allocated, always structured, always exercised. The question is not whether power moves since it always does. The question is whether it moves outside the bounds of constitutionalism.

If the amendment reorganises administrative arrangements, adjusts representational mechanisms, or clarifies institutional roles within the constitutional framework, then it cannot be dismissed as illegitimate simply because it involves political actors. To do so is to confuse participation with capture.

The Council’s second proposal of an independent Constitution Amendment Commission appears, at first glance, to be a call for deeper consultation. But here again, one must ask what constitutional deficiency does this proposal cure?

The Constitution already provides mechanisms for legislative amendment. Parliament is not an accidental feature of constitutional design; it is its central deliberative body. To suggest that it is inherently conflicted whenever it considers amendments is to undermine the very logic of representative democracy.

Indeed, the argument implies that elected representatives are incapable of acting in the public interest when constitutional questions arise. This is not a constitutional principle so much as it is a political suspicion.

And suspicion, however sincerely held, cannot replace institutional design.
If there are concerns about the adequacy of consultation, they must be substantiated with evidence of exclusion or procedural defect. But to propose an entirely new body as a precondition for amendment is to elevate preference into principle. It risks paralysing constitutional evolution by subjecting it to ever-shifting procedural demands.

The third recommendation of a mandatory national referendum raises a more technical question. Not every constitutional amendment requires a direct plebiscite. The Constitution itself distinguishes between categories of amendments, prescribing referendums only where foundational provisions are altered.

To insist that this Bill “fundamentally alters” the Constitution and therefore demands a referendum is, again, a claim that must be demonstrated, not declared. Which entrenched provisions are affected? In what manner do the amendments trigger the constitutional threshold for direct citizen approval?
If the Bill does not meet that threshold, then the call for a referendum, however politically appealing, lacks constitutional grounding.

There is also a broader issue at stake. When institutions such as the Zimbabwe Council of Churches enter constitutional debates, they bring with them moral vocabulary like harm, legacy, and conscience. These are important registers of public discourse, but constitutional law operates in a different register. It requires precision, evidence, and fidelity to text.

READ MORE: The Myth of the Electoral Cure

The danger arises when moral concern substitutes for legal reasoning. This is how we arrive at sweeping conclusions like “withdraw the Bill,” “the process is compromised,” or “the nation is at risk” without the analytical scaffolding required to sustain them. It is how constitutional debate is transformed into a contest of anxieties rather than an exercise in interpretation. And yet, the Constitution demands more of us.

It demands that we read carefully and distinguish between what we fear and what is actually provided for. That we resist the temptation to treat every amendment as an existential threat.

For the truth is simpler, and more demanding: not every amendment is a conspiracy. Some are necessary responses to evolving governance realities, while others may indeed be flawed. But the only way to tell the difference is through disciplined engagement.

The real danger to constitutionalism is not amendment but the abandonment of reason in its evaluation. If we are to honour the Constitution, we must do so not by shielding it from change, but by subjecting every proposed change to rigorous, evidence-based scrutiny. That is the work of a constitutional democracy.

Anything less, even when spoken from the pulpit, is not vigilance. It is conjecture.

Bheki Dlamini is a journalist for The African Chronicle. The views expressed are his.