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stations by the Respondent were flawed to the extent that the organisation's members could not easily access them, on the other hand they were easily accessible to persons without disabilities. To this extent the orgainsation's members were treated less favourably then those without disabilities as per the provisions of Section 19 of The Persons With Disabilities Act. My finding is fortified by the admission to this effect by RW under cross examination that the Respondent failed to make adequate provision for persons with disabilities at the stations as I have highlighted above. Her words were that the Respondent discriminated against persons with disabilities, albeit, unintentionally. The first allegation is therefore established. The second allegation relates to the Respondent reneging on its statutory duty to ensure equitable participation by all stakeholders in the electoral process. This, it is alleged, is contrary to Regulation 7 of the Electoral (Code of Conduct) Regulations. This Regulation states as follows; "(1) The Commission shall where reasonable and practicable to do so ? (a) meet political party representatives on a regular basis to discuss all matters of concern related to the election campaign and election itself; (b) ensure that political parties do no use State resources to campaign for the benefit of any political party or candidate; (c) avail political parties with the election timeable and election notices in accordance with the Act; (d) censure all acts done by leaders of political parties, candidates, supporters, Government and its organs, which are aimed at jeopardizing elections or done in contravention of this Code; (e) declare election results expeditiously from the close of the election day; (f) ensure that a campaign rally or meeting which is legally organised by any political party is not disrupted or arbitrarily prohibited; (g) ensure that no election officer, police officer, monitor, observer or media person is victimised in the course of their election duties; (h) ensure that police officers act professionally and

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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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