The legal battle between prominent Biggie Ganda Butale and the Government of Botswana has reached a crucial procedural milestone. In the latest development in the high-profile challenge against the administrative removal of sodomy laws, the Attorney General has formally approached the High Court to seek directions on how the case should proceed.
A Filing Notice dated August 5, 2026, reveals that the Respondent has submitted an “Application for Directions” under Order 28 of the court rules. This document was officially received by the High Court Civil Registry in Lobatse on the morning of August 6, 2026, and was served on Butale Corporate Law, the firm representing the applicant, the same day.
Presided over by Judge William Moncho, this case marks a significant constitutional confrontation over the separation of powers in Botswana. At its core is Statutory Instrument No. 41 of 2026, issued by the Law Revision Commissioner; a position held by the Attorney General. The instrument effectively removed paragraphs (a) and (c) of Section 164 of the Penal Code, which historically criminalized “unnatural offences.”
Butale, an attorney with over 25 years of experience and President of the Botswana Republican Party (BRP), argues that the Attorney General overstepped his legal authority. While the High Court in 2019 and the Court of Appeal in 2021 declared these provisions unconstitutional, Butale insists that the way they were removed from the statute books was unlawful.
In his founding affidavit, Butale states, “The Law Revision Commissioner lacks the unilateral authority to repeal laws,” citing Section 86 of the Constitution, which reserves the power to amend or repeal legislation solely for the National Assembly. He alleges the government took an administrative shortcut to bypass a stalled legislative process. Records show that the Penal Code (Amendment) Bill, 2022, which aimed to address these sections, was deferred in August 2023 and still awaits Parliamentary approval.
Beyond the legal details, Butale, who is also a Senior Pastor of 30 years and a former Cabinet Minister, argues that the administrative deletion denies citizens and religious groups their democratic right to lobby their representatives. He insists, “While the courts rendered the laws ‘inoperable’ for prosecution, the formal legislative process is essential for public discourse.”
The Applicant is now asking the High Court to declare the Statutory Instrument unlawful and to set it aside entirely. Additionally, Butale demands that the Attorney General provide a full record of the proceedings and the specific reasons behind the decision to publish the instrument.
With this Application for Directions filed, the court will determine the timeline and procedural framework for a case that could redefine the limits of executive power and legislative oversight in Botswana. The Attorney General’s legal team, led by João Carlos Salbany, and Mr. Butale’s representatives are expected to appear before Judge Moncho as the matter moves forward.