The government is facing a fresh legal showdown over the recognition of same-sex relations after former cabinet minister and leader of the Botswana Republican Party, Biggie Butale, served a formal notice of intended legal action against the Attorney General challenging the removal of anti-sodomy provisions from Botswana’s Penal Code.
In a statutory notice addressed to the Attorney General, Butale argues that the government unlawfully and unconstitutionally removed sections 164(a) and 164(c) of the Penal Code through what he calls an “administrative shortcut” that bypassed Parliament.
The controversial provisions, which criminalised consensual same-sex relations, were deleted through the Rectification of the Laws (Penal Code) Order, 2026, published on March 26 this year by the Law Revision Commissioner or Attorney General Dick Bayford.
Butale contends that while the Court of Appeal of Botswana declared the provisions unconstitutional in 2021, the ruling did not automatically repeal them from the statute books.
The legal challenge sets the stage for another politically explosive battle over LGBTQ rights in Botswana, nearly five years after the landmark Court of Appeal judgment that upheld the decriminalisation of same-sex relations.
“A declaration of unconstitutionality by a court does not constitute a repeal,” the notice states. “The provision remains on the statute book until Parliament, exercising its exclusive legislative powers under section 86 of the Constitution, enacts legislation to repeal it.”
The legal challenge sets the stage for another politically explosive battle over LGBTQ rights in Botswana, nearly five years after the landmark Court of Appeal judgment that upheld the decriminalisation of same-sex relations.
Butale argues that the Law Revision Commissioner exceeded powers granted under the Revision of Laws Act by deleting substantive criminal law provisions instead of merely correcting clerical or editorial errors.
“The deletion of operative criminal law provisions that have never been repealed by Parliament is neither a clerical error, a printing error, nor any other error susceptible of rectification,” the notice says.
The former legislator further argues that the move amounts to an unconstitutional usurpation of Parliament’s legislative authority.
“The deletion of paragraphs (a) and (c) of section 164 of the Penal Code by administrative order constitutes the exercise of a repealing power — a power exclusively vested in Parliament,” reads the notice.
Butale also warned that allowing the order to stand would create what he called a “constitutionally dangerous precedent” that could allow unelected officials to remove laws without parliamentary approval.
The notice reveals that Butale may broaden the case by joining Members of Parliament and leaders of opposition political parties as co-claimants before the matter is formally filed in court.
He intends to seek a declaration from the High Court declaring the Rectification of the Laws Order unlawful, unconstitutional and of no force or effect.
Among the relief sought is an interim court order restraining the Law Revision Commissioner from removing any law from Botswana’s statute books on the basis of court rulings without prior parliamentary repeal.
The legal notice was filed in terms of the State Proceedings Act, which requires a one-month notice before legal action can be instituted against the government.
It is understood that the challenge is expected to ignite renewed national debate over constitutionalism, separation of powers and LGBTQ rights in Botswana with political and legal observers anticipating a fierce courtroom battle over whether the executive branch overstepped its authority in implementing the Court of Appeal decision.
