The safety of Zimbabwe’s minors hangs in a precarious balance as a shocking revelation surfaced from the High Court, exposing a distressing void in legal protection against predators. Recent court proceedings highlighted that Zimbabwe currently has no law safeguarding and protecting children, rendering them vulnerable to exploitation and ab_se from predators.
The case of Nkosilathi Gumbo has exposed a significant failure on the part of the Parliament of Zimbabwe to enact legislation protecting children from sexual exploitation.
The accused, Nkosilathi Gumbo, faced charges of having int3rcourse with a young person under the age of sixteen, as defined in Section 70(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Shockingly, this crime was committed within a legal void, revealing the absence of a protective legal framework for children.
The root cause of this legal vacuum traces back to the Constitutional Court’s judgment on May 24, 2022, in the case of Kawenda v Minister of Justice, Legal and Parliamentary Affairs & Others CCZ 3/2022.
Sections 70, 76, 83, and 86 of the Criminal Law Code were declared unconstitutional, with a clear directive for Parliament to enact a new law within 12 months to protect children from sexual exploitation.
Despite the court’s explicit instruction, the Parliament of Zimbabwe failed to enact a new law within the stipulated timeframe.
The consequences of this failure are dire, as the declaration of invalidity came into effect on May 25, 2023. Consequently, legal provisions aimed at safeguarding children were nullified, placing them at risk.
In the case of State v Moto HB 210/23, Justice Kabasa underscored the critical nature of the 12-month period.
Failure to address the constitutional defect within this timeframe rendered the affected sections, including section 70, unconstitutional and set aside.
The accused in the recent case was charged under a law that no longer existed, highlighting a fundamental legal irregularity.
In the review judgment, the High Court acknowledged the miscarriage of justice and quashed the conviction and sentence of Nkosilathi Gumbo.
The court emphasised that proceedings based on a non-existent law cannot be tolerated, underlining the urgency for parliamentary action.
Justice Dube Banda ruled,
“Therefore, the accused was charged, prosecuted, convicted and sentenced with contravention of a non-existent law. Charging, prosecuting, convicting and sentencing an accused person with a non-existent law is an irregularity so fundamental that the law cannot countenance. Such proceedings are susceptible to be reviewed and set aside. I therefore, find that the proceedings in the trial court were not in accordance with real and substantial justice, as a result, a substantial miscarriage of justice has actually occurren cannot stand.d. The conviction
“In the result, I make the following order:
“The conviction and sentence be and is hereby quashed and set aside.”
This situation is quite concerning. Essentially, anyone convicted of having intercourse with a young person (statutory rape) since May 25, 2023, might be released because they were convicted under a law that doesn’t actually exist.
Until a new law is created that specifically criminalizes such behavior, no one can be charged for having sex with a young person.
Our lawmakers had the chance to fix this and create a law that safeguards and protects children from sexual exploitation. Unfortunately, they prioritized other matters, rather than addressing crucial issues like this one.
This revelation demands immediate attention from the Parliament of Zimbabwe. The absence of a legal framework to protect children exposes them to potential harm.
Parliament must urgently fulfil its duty by enacting a law aligned with the constitutional mandate, ensuring the safety and well-being of the nation’s children.
Source iHarare
