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(3) Before determining the location of a polling station, the Commission may consult on the proposed location of that voting station with the local authority for the area within which that polling station shall fall." (The underlining is the Court's for emphasis only). And Section 41 states; "(1) Notwithstanding section forty; the Commission may relocate a polling station if it is of the view that it is necessary to do so for the conduct of a free and fair election. (2) The election officer shall take all reasonable steps to publicise the relocation of a polling station among voters in the voting district concerned." It is clear from the foregoing quotations that Section 28 makes provision for postponement of the polling day for an election by the Respondent. It is therefore in the Respondent's discretion to decide whether or not the polling day for elections should be postponed. The criteria to be used in exercising this discretion is that it shall be exercised where it, and quoting from the Section, "" is necessary for ensuring a free and fair election"".On the other hand, Section 40 provides for the Respondent establishing polling stations and the criteria to be used in determining the suitability of such stations. Such criteria to include and quoting from the Section, "? (the) access routes to those venues (and) general facilities at those venues"" (see subsection 2(d) and (i) of the Section). Whilst Section 40 makes provision for the relocation of a polling station by the Respondent where it is of the opinion that it is necessary to do for the conduct of free and fair elections. This denotes that the Respondent has the discretion to take such action in pursuit of free and fair elections. The use of the word free in this section, in my considered view denotes that all eligible citizens must be free to cast their vote. They must thus, not be hindered in any way. The evidence of PW reveals that there is lack of facilities at the stations audited to enable some members of the organization to cast their vote. PW himself did state that he is discourage to exercise his franchise because his vote will not be secret. He also highlighted the uneven terrain leading to some of the stations and the long distances between the entrance to the stations and the offices. These he stated will prove a challenge to persons on wheel chairs and crutches. The Respondent witness, RW, did also concede that on account of some of the stations being inaccessible to the members of the organization and lack of certain facilities, the organization's members had been discriminated against. The inaccessibility of the stations and lack of certain provisions implies that the elections will not be free in accordance with the provisions of Section 41. Further, since RW did not deny this, the Respondent is taken to have formed the said opinion in accordance with Section 41, requiring it to relocate the affected stations. By failing to do so, it reneged on its duty under Section 41 and accordingly the fifth allegation succeeds. In view of what I have stated in the preceding paragraphs, I find that the Petitioner has proved her claim in the petition to the required standard and satisfaction of the Court and is entitled to remedies in paragraph 28(i) and (ii) as endorsed in the Petition. I accordingly declare as follows; (1) That the Respondent has unlawfully discriminated against the Petitioner and other persons with disabilities represented by the organisation on whose behalf this action is brought contrary to Article 23 of the Constitution as read with Section 19 of 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
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Brotherton N.O. v. Electoral Commission of Zambia

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