Butale challenges AG’s powers

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.