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user on its operations otherwise it will be rendered redundant as the persons for whom it is intended may not avail themselves to it. Arising from the foregoing, I find that the Respondent has limited the Petitioner's rights and those of other disabled persons to exercise their franchise by way of secret ballot. The third allegation is therefore established. The fourth allegation is that 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 stations by reason of disability. This is contrary to Section 24 of the Electoral Act which states as follows; "(1) The Commission shall allow a person to apply for a special vote if that person cannot vote at a polling station in the polling district in which the person is registered as a voter, due to that person's ? (a) physical infirmity or disability or pregnancy; or (b) absence from that polling district while serving as an officer or monitor in the election concerned, or while on duty as a member of the security services in connection with the election. (2) The Commission may declare and prescribe circumstances in, and conditions under, which a person who is unavoidably and unforeseeably unable to vote in the polling district in which that person is registered as a voter may apply to vote elsewhere. (3) The Commission shall prescribe ? (a) the procedure for applying for special voters; and (b) the procedure, consistent in principle with Part VI, for the casting and counting of special votes." The relevant provision of this section as it relates to this allegation is subsection 3. By the said subsection the Respondent is required to prescribe the procedure for applying for a special vote and for casting and counting such special vote. The evidence presented indicates that no such arrangements have been made by the Respondent. However, I am not satisfied that the Petitioner or indeed the organization did request the Respondent to provide such special vote. It is a requirement under subsection 1 of section 24 for a person requiring such a vote, to apply to the Respondent to make such provision. The evidence of PW and indeed the contents of both the petition and affidavit in support do not reveal that such a request was made either by the Petitioner or the organization. The argument by counsel for the Petitioner is that the Respondent has power to make provision for such a vote. This may be so, but as I have stated earlier, there must be a request made by the person affected before the Respondent can invoke its power. I therefore find that the Petitioner has failed to establish the fourth allegation and accordingly dismiss it. The fifth allegation relates to the Respondent reneging its statutory duty to relocate the inaccessible stations. Reliance is made on Sections 28, 40 and 41 of the Electoral Act which state as follows; Section 28;

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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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