A crucial test for Zimbabwe’s judiciary – and one which will provide a lesson for SA – comes before the country’s Supreme Court, sitting as a constitutional court, when it is asked this week to consider the case of human rights activist Jestina Mukoko.

It will be heard by the Supreme Court of Zimbabwe sitting as a constitutional court. Human rights activist Jestina Mukoko was taken from her home in the early hours of the morning last December by six armed men and a woman.

They did not produce a warrant and they refused to say on what authority they acted or indeed who they were.

Mukoko was wearing only a thin nightdress at the time, but they refused to allow her to change, take her spectacles with her or to bring medicine for her chronic conditions . She was held in solitary confinement, interrogated and tortured. She was kept in handcuffs and leg irons.

After nearly a month of being carted — blindfolded — from one interrogation centre to another, she was allowed access to a lawyer for the first time. While her detention continued, people had gone to court about her abduction, and a court order had been issued that the police had to investigate her disappearance. Police disregarded the court order.

The minister of state security, Didymus Mutasa, confirmed what anyone could have guessed — that Mukoko’s kidnapping, detention and torture had been carried out by “state security agents”.

Attorney-general Johannes Tomana said he was an independent official who need not obey the court’s instruction, and he has therefore refused to comply. The facts are so stark that members of the court cannot avoid seeing the dispute as one in which they must make a choice.

Either they decide to uphold Mukoko’s rights under the constitution of Zimbabwe or they permit the executive to act unconstitutionally (and by extension condone the view of the attorney- general who told the court in so many words, that he is not subject to court orders).

It will be argued before the court that the state has not only failed to investigate and prosecute those who so fundamentally violated Mukoko’s rights, but the state is in fact the very authority which authorised the violations in the first place.

Its top officials have in no way repudiated the actions of its agents in abducting without warrant, detaining and torturing Mukoko, thus indicating their complicity. And these officials are now trying to prevent the law from exercising its oversight role by claiming they are immune from court orders — and by charging the victim.

The argument to be put to the judges is that the court “cannot be seen to facilitate this executive defiance of the rule of law”. Fortunately, such grave tests of judicial independence and courage do not come before a court every day.