Magistrate Archie Wochiunga said he was referring the case to the Supreme Court that hears constitutional matters after state did not oppose submission by Mukoko that she was abducted and held in captivity without access to lawyers or medical treatment which she required.
It was not controverted by the state that the constitutional question raised by the applicant (Mukoko) is neither frivolous and vexatious. The constitutional question is therefore referred to the constitutional court, ruled Wochiunga.
Mukoko will be back in court on 30 January or after the Supreme Court hearing on the matter. Her lawyer Beatrice Mtetwa said she hoped the Supreme Court will treat the matter as urgent.
Mukoko and about 40 opposition MDC activists are accused of attempting to recruit people for military training in neighbouring Botswana to overthrow President Robert Mugabe and his ruling ZANU PF party.
The accused were abducted in November and December from various locations and held incommunicado for weeks. Their lawyers say they were severely tortured by state agents in a bid to force them to admit to the charges of banditry.
If convicted the group faces the death penalty, in a case that has potential to scuttle a power-sharing agreement between Mugabe and main opposition MDC party leader Morgan Tsvangirai.
Tsvangirai told journalists in South Africa on Thursday that the charges against Mukoko and MDC activists are trumped up and part of a fresh crackdown against its members and structures.
The opposition leader demanded the release of the detained activists before the stalled power-sharing pact can be implemented.
Mugabe, Tsvangirai and the leader of a faction of the MDC, Arthur Mutambara, signed an agreement last September to share power in a government of national unity to tackle Zimbabwe's decade-long political and economic crisis.
However, the pact appears to be unravelling over a dispute between Mugabe and Tsvangirai over control of key ministerial and other top government posts and over the composition and powers of a new national security council.
South African President Kgalema Motlanthe will meet Zimbabwe's rival political leaders on Monday to try to salvage the power-sharing deal.
Motlanthe, current chairman of the Southern African Development Community (SADC), will be assisted by Mozambican President Armando Geubuza and former South African President Thabo Mbeki, who brokered the power-sharing pact four months ago.  Â
Meanwhile High Court Justice Tedius Karwi dismissed an application for bail by a journalist and six opposition activists accused of plotting to topple Mugabe.
The judge ruled that the seven could not be released on bail because they were facing serious charges and were likely to interfere with witnesses and investigations, their lawyer Alec Muchadehama told journalists.
The accused will be back in court on February seven. – ZimOnline