Biggie Ganda Butale, former minister, legislator, and president of the Botswana Republican Party (BRP), has delivered a clear message: the government has exceeded its authority, and he is prepared to challenge it in court to uphold constitutional limits.
Before Attorney General Dick Bayford sits a legal notice from Butale, who intends to contest the administrative removal of specific sections of the Penal Code, namely Section 164. Butale brings this notice in his personal capacity as a citizen deeply invested in the constitutional integrity of the legislative process and the proper exercise of statutory powers by state officials. His background as both an officer of the court and former member of parliament informs his stance.
The legal dispute focuses on Statutory Instrument No. 41 of 2026, published on March 26, which eliminated paragraphs (a) and (c) of Section 164 of the Penal Code—sections that had previously criminalized “unnatural offences.”
This move follows a landmark ruling by the Court of Appeal, which upheld the High Court’s decision declaring laws that criminalize consensual same-sex conduct unconstitutional. Botswana’s Penal Code, a relic of its British colonial past, had long outlawed ‘carnal knowledge of any person against the order of nature’ under Section 164 and criminalized attempts to commit such acts under Section 165. Convictions under these laws carried prison terms of up to seven years.
The constitutional battle began in September 2016 when Letsweletse Motshidiemang, a gay man, challenged Sections 164, 165, and 167 as unconstitutional. On June 11, 2019, the High Court in Gaborone ruled in his favor, striking down Sections 164(a) and (c) and 165 as violations of constitutional protections for liberty, privacy, dignity, and non-discrimination. The Court also modified Section 167, which criminalizes acts of gross indecency, removing the word “private” to narrow its scope.
Butale stresses that despite the Court of Appeal’s November 2021 declaration, the ruling does not automatically erase these provisions from the statute books. He argues that a law remains effective until Parliament formally repeals it through the democratic process established by the Constitution.
The government had already introduced Penal Code (Amendment) Bill No. 29 of 2022 to repeal these sections legislatively. Yet, the Bill was deferred by the Minister of Justice, Defence and Security in August 2023 for further scrutiny and remains pending before Parliament.
By circumventing this legislative path through an administrative order, Butale contends, the Law Revision Commissioner (Attorney General) has unlawfully usurped Parliament’s legislative authority, breaching the principle of separation of powers. He warns that such a precedent could empower administrative officials to delete laws based solely on court rulings without parliamentary approval.
“Section 9(m) of the Revision of Laws Act expressly limits the Commissioner’s power to correct errors to corrections that do not affect the meaning of any written law. This limitation is not incidental, it is the defining boundary between revision and reform. Any exercise of the Commissioner’s powers that affects the meaning of a written law exceeds the authority conferred and is accordingly ultra vires,” Butale asserted.
He is seeking several declarations from the High Court, including that the Rectification of the Laws Order is unlawful, unconstitutional, and void. He also requests an interim injunction to prevent the Attorney General from removing any other written laws based on judicial declarations of unconstitutionality without prior parliamentary enactment.
Butale has indicated his intention to formally launch the legal action once the mandatory one-month notice period expires, unless a satisfactory resolution is reached. He also reserves the right to include other co-claimants in the suit, such as Members of the National Assembly and leaders of registered political parties.