Prominent attorney and political leader Biggie Ganda Butale has taken the Attorney General to the High Court, challenging the legality of a 2026 administrative order that removed the “unnatural offences” laws from the nation’s statute books without a final vote in Parliament.
The dispute concerns Statutory Instrument No. 41 of 2026, issued by the Law Revision Commissioner; a role held by the Attorney General. Butale argues that the instrument effectively deleted paragraphs (a) and (c) of Section 164 of the Penal Code, which for decades criminalized same-sex relations.
In his court filings, Butale notes that although the High Court in 2019 and the Court of Appeal in 2021 declared these provisions unconstitutional, the method used to physically remove them from Botswana’s laws bypassed parliamentary authority.
In a founding affidavit filed this month, Butale – an attorney with over 25 years of experience and President of the Botswana Republican Party (BRP) – asserts that the Attorney General exceeded his legal mandate.
He contends that while the Law Revision Commissioner has the power to correct errors or remove laws that have been expressly repealed, he lacks unilateral authority to repeal laws.
“It is only parliament that may repeal the law,” Butale states in his affidavit, citing Section 86 of the Constitution, which vests the power to make, amend, and repeal laws solely in the National Assembly.
He argues that by issuing the Statutory Instrument, the Commissioner circumvented the constitutional requirement for legislative oversight.
The timeline outlined in the court documents suggests a strategic bypass of a stalled legislative process. After landmark court rulings struck down the sodomy laws, the government introduced the Penal Code (Amendment) Bill, 2022, specifically to delete the offending sections.
However, during the Bill’s second reading on August 1, 2023, then Minister of Justice Machana Shamukuni moved to defer the debate. The Minister noted that several constitutional issues had been raised, including whether Parliament should act or if the Commissioner could handle the matter administratively. Despite the Bill remaining deferred and pending before Parliament, the Law Revision Commissioner proceeded to publish the deletion order in March 2026.
Butale alleges that this move allowed the executive branch to achieve through a shortcut what it was hesitant to bring to a final parliamentary vote.
Beyond the legal technicalities, Butale’s challenge is rooted in his roles as a Senior Pastor and former Cabinet Minister. He maintains that although the court rulings rendered the sodomy laws “inoperable” for criminal prosecution, formally removing them from the written law is a matter of significant public interest.
Butale, who has declared his intention to run for the presidency in 2029, argues that the administrative deletion denies citizens and religious groups the opportunity to lobby their representatives.
As a pastor for thirty years, he holds the belief that such acts are “against the order of nature” and asserts that even if courts strike down a law, the public deserves a legislative process where alternative constitutional measures might be proposed.
“The removal of these provisions… without parliamentary oversight directly affects me, because it denies myself and many others who share my views the opportunity to lobby parliament,” he says.
The High Court has been asked to declare the Statutory Instrument unlawful and to set it aside entirely. The Notice of Motion also demands that the Attorney General provide, within fourteen days, the full record of proceedings and reasons that led to the decision to publish the instrument.
Legal experts suggest the case will hinge on the interpretation of the Revision of the Laws Act. While the government may argue the Commissioner was merely updating the statute books to reflect court-ordered reality, Butale insists the Commissioner’s powers are strictly editorial and cannot be used to enforce court rulings; a responsibility that belongs to Parliament.