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Electoral Commission Of Zambia RESPONDENT th BEFORE THE HON. JUSTICE NIGEL K. MUTUNA, ON 19 DAY OF SEPTEMBER, 2011. For the Petitioner : Mr. B.C. Mutale SC, Mr. L. Kalaluka & Ms. F. Kalunga of Messrs Ellis & Company For the Respondent : Mrs. T. Lungu, In ? house Counsel for the Respondent JUDGMENT Legislation referred to: 1. The Constitution of Zambia, chapter 1. 2. Electoral Act, No. 12 of 2006. 3. The Electoral (Code of Conduct) Regulations, 2011, Statutory Instrument No. 52 of 2011. 4. The Persons with Disabilities Act, No. 33 of 1996. 5. The Protection of Fundamental Rights Regulations, 1969. The Petitioner, Sela Brotherton, brings this petition in her capacity as secretary of the Zambia Federation of Disability Organizations, hereinafter, referred to as the organization. The said organization comprises eleven member orgainsations comprising a total number of 20,267 individual members, the majority of whom are persons with disabilities and are eligible and registered voters for the forth coming elections. The Respondent, Electoral Commission Of Zambia is an autonomous body constituted under the provisions of Article 76 of the Constitution. Its functions are, inter alia, to supervise the registration of voters and to conduct Presidential and Parliamentary elections. It is also mandated to ensure that all stoke holders in the electoral process adhere to the prescribed code conduct before, during and after elections. This is by virtue of regulation 7 of the Electoral (Code of Conduct) Regulations, 2011. The dispute arises from the Respondent's alleged failure to initiate legislative reform to ensure equitable participation by persons with disabilities in the electoral process of Zambia. It is also alleged that the services offered by the Respondent at the registration and polling stations (the stations) in selected constituencies in Zambia are not accessible to persons with disabilities. Neither do the services cater adequately for their needs. Arising from this, the Petitioner alleges as follows; "(1) The Respondent has unlawfully discriminated against the Petitioner and persons with disabilities, in general, in the electoral process contrary to Article 23 of the Constitution as read with Section 19 of The Persons With Disabilities Act. (2) The Respondent has reneged its statutory duty to ensure equitable

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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

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Brotherton N.O. v. Electoral Commission of Zambia.pdf
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Brotherton N.O. v. Electoral Commission of Zambia

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