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impartially during the discharge of electoral duties (i) ensure that traditional leaders, do not exert undue influence on their subjects to support a particular political party or candidate; (j) ensure that equal opportunity is given to all stakeholders, particularly political parties and independent candidates to participate in and conduct their political activities in accordance with the law; and (k) condemn acts of media organizations and personnel aimed at victimization, punishment or intimidation of media practitioners implementing any of the provisions of this Code." There was no evidence led by PW in relation to the foregoing regulation, and neither have counsel for the Petitioner alluded to it in their submissions. My assumption is that in advancing her claim under this allegation, the Petitioner relied upon subsection 1 (j) to the Section. This Section spells out the duties of the Respondent as they relate to regulation of the players and stakeholders in electoral process to ensure that they abide by the code of conduct. To that extent it does not, per se, grant rights or privileges to any of the players or stakeholders in the electoral process. Further the provisions of subsection 1(j) of the section are not in any way intended to create a privilege for a voter such as the Petitioner. I therefore, find that there is no right or privilege accorded to the Petitioner by the said subsection and as such, the Respondent has not reneged on its obligations under the said section. This allegation is therefore not established. The third allegation relates to the Respondent unlawfully limiting the rights of the Petitioner and persons with disabilities, generally, from exercising their franchise freely, fairly, by secret ballot and with dignity. This is contrary to Article 75 of the Constitution as read with Sections 18 and 60 of the Electoral Act. The provisions of Article 75 are the ones that grant citizens an opportunity to vote. Put simply, the Article makes provisions for the franchise, that is, the right to vote. On the other hand Section 18 of the Electoral Act states as follows; "(1) No person shall be entitled to vote more than once in the same election in accordance with this Act and as may be prescribed. (2) Every poll shall be taken by means of a secret ballot in accordance with this Act and as may be prescribed." While section 60 states inter alia as follows; "(1) The presiding officer or another election officer, at the request of a voter who is unable to read, shall assist that

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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
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Election Judgments - IFES

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Brotherton N.O. v. Electoral Commission of Zambia

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