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voter in voting in the presence of ? (a) a person appointed by or as an accredited observer or monitor, if available; or (b) two election agents of different candidates, if available; or (2) A person may assist a voter in voting if ? (a) the voter requires assistance due to a physical disability; (b) the voter has requested to be assisted by that person; and (c) the presiding officer is satisfied that, that person has attained the age of 18 years. (3) The secrecy of voting as stipulated in the Constitution shall be preserved in the application of this section." The relevant portion of Section 18 as it relates to this allegation is subsection 2 which in effect makes it mandatory for all votes cast to be by way of secret ballot. On the other hand Section 60 provides, inter alia, for persons with disabilities to be assisted in casting their vote where they so request. Notwithstanding the said assistance, the Section under subsection 3 emphasizes the need to preserve the secrecy of the vote. This allegation relates to the need to preserve the secret ballot and the need for persons with disabilities to vote in dignity with out assistance. The evidence presented on this issue clearly indicated that in the absence of Braille templetes in respect of all elections, blind persons' votes will not be secret in those elections where the template will not be used, because the voting will be done on their behalf. This is evident from the testimonies of both PW and RW. PW went further to state that, for this reason he is discouraged from voting. It was also evident from the evidence of RW that if the persons with disabilities are unable to cast their vote by reason of their disability, they will have to submit to being assisted. She stated, in this respect, that they would be lifted up the stairs and appeared unconcerned with the consequences of such act. Her evidence therefore, was that it is mandatory to submit to assistance. As counsel for the Petitioner has argued, the provisions of Section 60(2)(b) do not make it mandatory for assistance to be given but rather, it is the choice of the person seeking assistance. To this extent by insisting that persons with disabilities cast an assisted vote, the Respondent is limiting their rights to exercise their franchise in accordance with the provisions of the law I have highlighted above. Further, although the Braille template has been introduced in respect of the elections for the Presidency, the evidence on record shows that there has been no public awareness campaign carried out for purposes of sensitizing the users of such templetes and the electorate in general. As RW stated this innovation is new in Zambia as such there was need for sensitizing the

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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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