ANALYSIS Melanie Schwarzfischer 19 February 2021
In Zambia every citizen over the age of eighteen years has the right to vote, unless he or she is explicitly disqualified by Parliament (Article 75 (1) of the Constitution). However, not every citizen has equal opportunities to conduct their votes. Especially people with disabilities are disadvantaged because of inadequate services. In many locations, the polling stations, are inaccessible for people with disabilities. For example, the polling stations are located on the first floor with no access by an elevator, the doorways are too narrow, and the walks and queues are too long. Additionally, tactile ballot guides for blinds in every election (not just the presidential elections) are missing and sign language interpreters for deaf people are lacking. All these circumstances are discouraging for disabled people and prevent them to conduct their vote secretly and in dignity.
Exclusion of people with a mental disabilities
Despite the disadvantaging circumstances for people with a physical disability, people with mental disabilities remain to struggle for their right to vote. They can be excluded from the voting process if a mental health practitioner declares their absence of mental capacity. Mental capacity is defined in the Mental Health Act 2019 as the ability to make independent informed decisions, act on that decision, and understand the consequences. With the absence of mental capacity section 4(2) of that Act provides that “the mental patient shall not enjoy legal capacity and is legally disqualified from performing a function that requires legal capacity”. One of the mentioned functions is the right to vote. Section 9 (1)(c) of the Electoral Process Act denies people with mental disability the right to vote explicitly if their disability results in the inability to exercise their vote. Also, the Constitution denies people who are declared to be of “unsound mind” the right to vote and the right to be voted in Article 65 (1)(b). This disqualification is a direct discrimination against people with mental disability, which is prohibited by the constitution. Especially the term “unsound mind” for people with mental disabilities as it is used in the constitution is derogative. Sufficient safeguards to challenge such a disqualification of the voting process are missing. The following analysis of a decision by the Constitutional Court of Zambia is only focussing on the right to vote for people with physical disabilities.
Challenging the disadvantages before Court
The High Court judgement of Brotherton v Electoral Commission of Zambia, delivered on 19th of September 2011, is dealing with this disadvantaging situation. Sela Brotherton, the secretary of the Zambia Federation of Disability Organisation, represents in her petition the needs of persons with disabilities. In this case the Court held that such disadvantaging circumstances are a form of discrimination regarding article 23 (2) of the Constitution read with section 19 (1) of The Persons with Disabilities Act. The sections clearly state that any action which treats “a person with a disability less favourably from a person without a disability” is discrimination. Therefore, the Electoral Commission of Zambia discriminated against persons with disabilities because it failed to provide adequate services and take action to ensure free and fair elections. Although, this discrimination was unintentionally the Electoral Commission acted in a discriminatory manner.
The second issue of the case is the unlawful limitation of the rights of people with disabilities from exercising their franchise freely, fairly, by ballot and with dignity. Even though assistance in the voting procedure is allowed by section 60 of the Electoral Act 2006, the Court made clear that this assistance should be by choice and not mandatory. With insisting that persons with disabilities cast an assisted vote, the Electoral Commission is limiting their rights to vote secretly and with dignity. Regarding the issue of special vote which is provided in section 24 of the Electoral Act it became clear that the Electoral Commission has the duty to provide a special vote if someone applies for it. The special vote allows the applicant to vote at another station which may be accessible for people with disability. In this case the petitioner failed the application because of the lack of knowledge about this requirement. To avoid such failures educational programmes are needed. Even though the Court sees the discrimination against people with disabilities and the limitation of their rights it argues that no immediate action for the 2011 elections, following the judgement, are needed. Its main argument was that the majority of the affected people were able to cast their vote although under unfavourable circumstances. But the Court made orders for the election in 2016, which should improve the accessibility to the election for disabled people.
How has the judgement affected reality?
In the next general election in Zambia in 2016 some improvements could already be seen. At least 72 % of the polling stations were observed as accessible for persons with disabilities. The order to locate them on the ground floor was followed in most of the stations. Also, tactile ballot guides were available in most of the stations, but once again only for the Presidential election ballot. The biggest improvement is the voter education program. Through this more people with disabilities got encouraged to vote with the knowledge of their rights. Therefore, persons with disabilities played a more active role in this election. But still the election is not accessible for everyone. Especially deaf people are still disadvantaged. It will be interesting to see, in how far the situation has improved by the general election on 12th of August 2021.
Why is the legal inclusion of people with disability so important?
The legal framework represents the basis of society. It guarantees every citizen fundamental rights and the opportunity to enforce their rights in front of a court. Additionally, the legislations represent the different values of the state. This forms and influences the people of a state. The inclusion of people with disabilities into everyday society is still in process. Granting legal equality is the most important step towards complete inclusion. People with disabilities must have the right to participate in society in every area. How can people with disabilities be accepted and included in the society if the law excludes them from practicing their fundamental rights? Especially the right to vote, the central pillar of democracies, must be ensured for everybody to achieve equality. Implementing equality in the legal framework is an important opportunity to include people with disabilities and raise awareness in the society.
The judgement of the High Court of Zambia was only a small step towards a better inclusion of people with disabilities, and it raised some attention. However, in my opinion, it definitely missed the opportunity to improve the situation for people with disabilities. The court did not postpone the election in 2011 even though it recognised the discrimination against people with disabilities and the limitation of their right. For the court it was more important to please the interests of the majority of the people and the politicians than to improve the legal framework towards a legislation without any kind of discrimination. It also failed to declare the articles and sections which are discriminatory unconstitutional and therefore void. The election in 2016 made clear that the judgement barely had an influence of the situation and only few improvements could have been observed.
Melanie Schwarzfischer is studying both the Bachelor’s program African Development Studies in Geography and the Bachelor’s program Geography in Bayreuth, Germany.