HARARE – Paedophiles who targeted children under the age of 16 since May 25, 2023, are immune from prosecution after the government failed to amend the law as ordered by the Constitutional Court, ZimLive can reveal.

The legal loophole was revealed by Justice Christopher Dube Banda of the Bulawayo High Court as he ordered the acquittal of Nkosilathi Gumbo, who had been convicted by a magistrate and jailed three years for having sexual intercourse with a minor.

The case was brought before the judge on automatic review.

The judge ruled that Gumbo was convicted based on a non-existent law and as such his conviction and sentence should be set aside.

On May 24, 2022, the Constitutional Court declared sections 70, 76 and 83 of the Criminal Law Code governing the age at which children can consent to sexual intercourse unconstitutional.

The Constitutional Court then suspended the declaration of invalidity for a period of 12 months to allow the competent authorities to correct the defect and amend the law.

The 12-month period expired on May 25, 2023, with no law enacted to protect all children from sexual exploitation as ordered by the Constitutional Court.

Justice Dube Banda said: “By operation of law, the effect of the failure to enact a law as ordered by the Constitutional Court is that the declaration of invalidity came into effect on the expiry of the period of 12 months, i.e on May 25, 2023.”

Gumbo had pleaded guilty to having sexual intercourse with the 15-year-old girl on May 29, 2023.

“Therefore, the accused was charged, prosecuted, convicted and sentenced with contravention of a non-existent law,” the judge said.

“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 occurred.

“The conviction cannot stand… the conviction and sentence be and is hereby quashed and set aside.”

Justice minister Ziyambi Ziyambi told ZimLive: “We’re amending the law, but we have a shortage of drafters.

“We have asked the president to invoke the presidential powers act so that by this weekend it will be gazetted.”