Butale challenges AG’s powers
Mpho Mokwape | Monday July 27, 2026 06:00
Butale is challenging the decision by the Law Revision Commissioner, who issued the statutory instrument under the Revision of Laws Act. He is asking the court to declare that the instrument was unlawful and beyond the powers granted to the Commissioner by law. The application is against the Attorney General of Botswana, who is cited in his capacity as the Law Revision Commissioner. Butale argues that the Commissioner acted outside his legal authority by removing the provisions without a formal repeal by Parliament.
The case follows earlier court decisions concerning section 164 of the Penal Code following a lengthy court case of decriminalisation of same-sex conduct in 2018 brought by a University of Botswana student. In 2019, the High Court ruled that paragraphs (a) and (c) of the section were unconstitutional. The decision was later confirmed by the Court of Appeal in 2021.
Section 164 of the Botswana Penal Code (Chapter 08:01) was titled “Unnatural offences.”
It provided that a person would be guilty of an offence if they: Section 164(a): “has carnal knowledge of any person against the order of nature”; Section 164(b): “has carnal knowledge of an animal”; or Section 164(c): “permits any other person to have carnal knowledge of him or her against the order of nature.” A person found guilty under section 164 was liable to imprisonment for a term not exceeding seven years.
In the legal challenge involving Biggie Butale, the dispute concerns paragraphs (a) and (c) of section 164, the parts dealing with sexual acts between people described in the law as being “against the order of nature.” Butale is not asking the court to reconsider the earlier judgments that found those provisions unconstitutional. His argument is about the process of removing them from the statute book, and whether that removal should have been done by Parliament rather than by the Law Revision Commissioner.
Section 164(b), which dealt with sexual acts involving animals, was a separate provision from the two paragraphs challenged in the case.
“I accept those judgments, and I am not asking the High Court to reconsider the findings made by the two courts. My argument is that the effect of the judgments was to make the provisions unenforceable, but they were not formally repealed by Parliament,” states Butale. According to his court papers, the legal issue is whether the Law Revision Commissioner had the power to remove the provisions from the published Laws of Botswana before Parliament completed the repeal process.
Butale argues that under the Revision of Laws Act, the Commissioner can only remove provisions from the published laws if they have already been repealed. He says the law allows removal where a written law has been repealed expressly, specifically, or by necessary implication. He argues that none of these circumstances existed when Statutory Instrument No. 41 of 2026 was issued.
The court papers state that there was no expressor specific repeal because Parliament had not passed legislation removing the provisions. Butale further argues that there was also no repeal by necessary implication because that happens only where a later Act of Parliament conflicts with an earlier law.“No such later Act existed because Parliament had not enacted any legislation repealing section 164(a) and (c),” he said.
The application explains that Parliament had already started dealing with the issue through the Penal Code (Amendment) Bill, 2022. The purpose of the bill was to remove the same provisions from the Penal Code. However, the bill was deferred during parliamentary proceedings in August 2023 after questions were raised about whether the amendments should be made through Parliament or through the Law Revision Commissioner.
Butale also argues that while the bill remained before Parliament, the Law Revision Commissioner published Statutory Instrument No. 41 of 2026 on27 March 2026, effectively removing the provisions before Parliament had completed its legislative process. He argues that this action amounted to the Commissioner performing a function that belongs to Parliament.
According to the application, section 86 of the Constitution gives Parliament the authority to make laws, including the power to amend and repeal existing legislation. Butale argues that the power to remove the provisions from the Penal Code could only be exercised by Parliament through the legislative process. He further argues that the Law Revision Commissioner’s role is limited to updating and publishing the laws after lawful changes have already been made. The Commissioner, according to Butale, does not have the power to repeal legislation or remove provisions that Parliament has not repealed.
The court papers acknowledge that the statutory instrument refers to section 12 of the Revision of Laws Act. However, Butale argues that relying on that section does not give the Commissioner the power to delete provisions where the requirements of the Act have not been met. He is asking the High Court to review and set aside Statutory Instrument No. 41 of 2026 and declare that the Commissioner acted unlawfully. Butale is also seeking an order that the Attorney General pays the costs of the application and any further relief the court considers appropriate.
The Attorney General has been called upon to provide the record of the decision-making process that resulted in the publication of the statutory instrument, together with any reasons supporting the decision.
The case will require the High Court to determine whether the Law Revision Commissioner acted within the powers granted by the Revision of Laws Act or whether the removal of the Penal Code provisions was a matter that could only be completed through Parliament.