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participation of all stakeholders, in the electoral process contrary to Regulation 7 of the Electoral (Code of Conduct) Regulations. (3) The Respondent has unlawfully limited the rights of the Petitioner and persons with disabilities in general, to exercise their franchise freely, fairly, in secret and with dignity contrary to Article 75 of the Constitution as read with Sections 18 and 60 of the Electoral Act. (4) The Respondent has reneged on its statutory obligation to make provision for a special vote for persons who are unable to vote at the designated polling stations by reason of disability contrary to the provisions of Section 24 of the Electoral Act. (5) The Respondent has reneged its statutory duty to relocate inaccessible polling stations to ensure that all citizens, including persons with disabilities, so as to ensure all persons and would be voters are able to access the stations contrary to Section 28, 40 and 41 of the Electoral Act." Arising from the foregoing, the Petitioner claims the following remedies; "(i) An order declaring that the Respondent has unlawfully discriminated against the Petitioner and other persons with Disabilities contrary to Article 23 of the Constitution of Zambia as read together with Section 19 of the Persons with Disabilities Act, Cap 65 of the Laws of Zambia. (ii) An order declaring that the Respondent has unlawfully limited the right of the Petitioner and other persons with disabilities in exercising a free franchise by not providing premises and services that are accessible to persons with disabilities contrary to Article 75 of the Constitution. (iii) An order directed at the Respondent to invoke its statutory powers to provide the following facilities and services: (a) Temporal ramps for use by persons with disabilities in all polling stations or polling stations where there are wheel chair users. (b) Ensure that all polling booths are located at the ground floors and in places accessible to persons with disabilities. (c) Provide a tactile ballot guide for voters who are blind or are partially sighted but do not wish to be assisted in casting their secret vote. (iv) An order directed at the Respondent to invoke its statutory powers

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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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