Former Botswana Patriotic Front (BPF) president Biggie Ganda Butale has launched a fresh legal challenge against Attorney General (AG) Dick Bayford as he accusses him of unlawfully usurping Parliament’s constitutional law-making powers by removing sections of the Penal Code linked to same-sex relations.
Butale has filed an urgent application at the High Court seeking to invalidate Statutory Instrument No. 41 of 2026, issued by the Law Revision Commissioner, which deleted paragraphs (a) and (c) of section 164 of the Penal Code from the Laws of Botswana.
The application argues that the Attorney General, acting in his capacity as Law Revision Commissioner, exceeded his powers under the Revision of Laws Act by removing the provisions without an Act of Parliament repealing them.
Butale, a lawyer and former Member of Parliament, argues that the move amounted to an “impermissible usurpation” of Parliament’s authority under section 86 of the Constitution, which grants the legislature the power to make laws.
“The power to make laws referred to thereat includes the power to amend and/or repeal laws,” Butale states in his founding affidavit. “By promulgating the Instrument, the Commissioner has taken away the legislative responsibility of Parliament to reform the law by repealing sections 164(a) and (c).”
“The power to make laws referred to thereat includes the power to amend and/or repeal laws,” Butale states in his founding affidavit. “By promulgating the Instrument, the Commissioner has taken away the legislative responsibility of Parliament to reform the law by repealing sections 164(a) and (c).”
The dispute follows the landmark LGBTI rights case involving the decriminalization of consensual same-sex relations.
In 2019, the High Court ruled in favour of the Lesbians, Gays and Bisexuals of Botswana (LGBTI Botswana), declaring sections 164(a) and (c) of the Penal Code unconstitutional. The decision was later upheld by the Court of Appeal in 2021 in the case of Attorney General v Motshidiemang and Others. The judgments effectively rendered the provisions unenforceable, meaning that individuals could no longer be prosecuted under those sections. However, Butale argues that while he accepts the court judgments, the formal removal of the provisions from Botswana’s statute books should have been undertaken through Parliament.
He contends that Parliament had already started the process of amending the Penal Code when the Penal Code (Amendment) Bill, 2022 was introduced.
According to Butale, the Bill sought to delete sections 164(a) and (c), but was deferred in August 2023 after lawmakers debated whether the amendments should be done by Parliament or through the Law Revision Commissioner.
“Whilst the Bill stood as deferred and was still pending before Parliament, the Commissioner published the Instrument on 27 March 2026,” Butale states. “Effectively, the Commissioner achieved that which Parliament sought to do whilst the Bill was pending before it.”
The former MP argues that the Law Revision Commissioner’s powers are limited to removing provisions that have already been repealed by Parliament.
He insists that sections 164(a) and (c) had not been repealed and that the Commissioner could therefore not independently delete them.
“The Commissioner may only remove laws that have been repealed and it is only Parliament that may repeal the law,” Butale argues.
Butale has asked the High Court to declare Statutory Instrument No. 41 of 2026 unlawful and ultra vires the powers granted under the Revision of Laws Act.
He is also seeking an order reviewing and setting aside the instrument, with costs against the Attorney General.
Butale says his interest in the case is both personal and in the public interest, citing his previous role as an MP, cabinet minister and his current leadership role in the Botswana Republican Party (BRP).
He argues that removing the provisions without parliamentary debate deprived citizens and lawmakers of an opportunity to engage with the issue through the legislative process.
“I have a substantial interest in ensuring that the constitutionally mandated legislative powers of Parliament are not unduly derogated from by members of the executive,” Butale states.
