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Persons With Disabilities Act. (2) That the Respondent has unlawfully limited the rights of the Petitioner and other persons with disabilities represented by the organization on whose behalf this action is brought, to exercise their franchise by not providing premises and services that are accessible to persons with disabilities contrary to Article 75 of the Constitution. The foregoing declarations are in line with the endorsement in the Petition and should be remedied by the Respondent in accordance with the direction I shall give in the paragraphs that will follows. As regards remedies in paragraphs 28(iii) and (iv) of the petition, although the Petitioner has proved the allegations entitling her to the grant of the remedies, I decline to grant the remedies as claimed because it would th lead to the postponement of the elections scheduled for the 20 September, 2011. The rights of the Petitioner and members of the organization have clearly been violated requiring immediate remedial action, but the said action as I have stated, if taken will lead to postponement of the election because the remedial action cannot be taken in the short period of time remaining before the polls open. I am therefore reluctant to take an action which would put the nation on that course for the following reasons. Firstly and most importantly, the Petitioner and members of the organization are not the only participants and intending participants in the elections. Their individual and group rights and interests must be weighed against the rights and interests of the larger majority of the other participants and intending participants. From a purely common sense positions, the interest of this larger majority must prevail. There are also other interests which in my considered view are paramount as against those of the Petitioner and the organization's members. These are the interests of other stakeholders in the electoral process such as the tax payers who have partially funded the elections, the general electorate, the co-operating partners, various election observers and indeed political parties who are geared, at great costs to participate in the elections. Secondly, by the very fact that the remedies are couched in such a manner that they require me to grant them immediately, which would require the postponement of the elections, there are an indirect attempt by the Petitioner to invoke the provisions of Section28 of the Electoral Act. This as I have stated in the earlier part of the judgment is in the exclusive discretion of the Respondent, and although there is sufficient evidence that the Respondent should have invoked this power, this Petition is not a method by which it can be compelled to do so. Thirdly, although the Petitioner and members of the organization will not be able to cast their vote freely, they have not been totally disenfranchised which would require immediate remedial action. As has been indicated in paragraph 3 of the Petition, the majority of the organizations members have registered as voters despite the challenges alluded to in the earlier part of this judgment. There will therefore be able to cast their vote, albeit, under unfavourable circumstances. Lastly and by way of a comment only, the timing of this Petition can not pass without comment. These th proceedings were instituted on 24 August, 2011, which is less than a month before the polling day. This is notwithstanding the fact that, most if not all, of the Petitioner's grievances arose in the year 2006, when the organization started engaging the Respondent. Although they is no law that requires an aggrieved person to institute proceeding immediately upon the cause of action arising, in matters such as this one, it is prudent that the aggrieved party institutes proceedings promptly to avoid the pit falls that I have alluded to in the last two paragraphs. Arising from my decisions in the preceding paragraphs I order that the Respondent should by the next elections that is, not the forth coming elections, but the ones to follow, put in place measures to ensure that the Petitioner and the organizations members, are not disadvantaged in their pursuit of the exercise of their franchise. These measures should be in line with the remedy endorsed in paragraph 28 (iii) of the Petition, that is to say; (a) Erect temporary ramps for use by persons with disabilities in

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Brotherton N.O. v. Electoral Commission of Zambia

Judgment

Question Presented: Did the Electoral Commission of Zambia violate the fundamental voting rights of disabled voters by failing to provide adequate facilites?

Alleged Acts: Sela Brotherton, suing in her capacity as Secretary of the Zambia Federation of Disability Organisations, filed a petition against the Electoral Commission of Zambia ("the Commission" or "ECZ") alleging systemic discrimination against persons with disabilities in Zambia's electoral process. The dispute arose from the Commission's alleged failure to ensure equitable participation by persons with disabilities in elections. Specifically, the petition alleged The services offered by the Commission at registration and polling stations in selected constituencies across Zambia were not accessible to persons with disabilities. This included a failure to provide ramps for wheelchair users, ground-floor polling booths, and physically accessible buildings. She also alleged inadequate secret ballot facilities for blind voters and a failure to provide special voting procedures.

Procedural history: The case was filed as a petition before the High Court of Zambia at the Principal Registry under case number HP 818 of 2011.

Summary: This case is considered a landmark judgment in African disability rights jurisprudence. It was the first Zambian case to directly adjudicate the electoral rights of persons with disabilities, and the High Court's far-reaching pronouncements acknowledged that persons with disabilities had been discriminated against "on the basis of their disability, from participating in the political and public life because the electoral process did not meet the benchmarks of inclusivity and accessibility." The judgment affirmed that "inclusive elections" require specific structural accommodations — temporary ramps, ground-floor polling booths, and tactile ballot guides — and that the failure to provide them is not merely an administrative oversight but a form of unlawful discrimination under the Zambian Constitution.

Conclusion: The Commission unlawfully discriminated against the Petitioner and persons with disabilities by failing to provide accessible polling stations and services, in violation of Article 23 of the Constitution and Section 19(1) of the Persons with Disabilities Act. The Court held that disadvantaging circumstances — including the lack of ramps, accessible buildings, and tactile ballot guides — constituted a form of discrimination, since any action treating "a person with a disability less favourably from a person without a disability" is discrimination under Zambian law.

Legal Issue(s)

Accessibility
Elections as a Fundamental Right
Voters' Rights

Applicable Law(s): Zambian Constitution, Electoral Act, and Persons with Disabilities Act

Region: Africa

Country: Zambia

Language of Decision

English

Court: High Court

Election Type: General

Date of decision: Sep 18, 2011

Geolocation

Latitude: -15.4192129

Longitude: 28.3063421

: Geolocation

Link: https://sheriahub.com/cases/zm/caselaw/brotherton-no-v-electoral-commission-of-zambia-hp-818-of-2011-2011-zmhc-32-18-september-2011.pdf

Primary Documents

Brotherton N.O. v. Electoral Commission of Zambia.pdf
English
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Election Judgments - IFES

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Brotherton N.O. v. Electoral Commission of Zambia

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