Butale takes Govt to court over Gay law removal

Former Tati East MP and lawyer, Biggie Ganda Butale has dragged the Government to court over the removal of provisions that criminalised consensual same-sex relations from Botswana's Penal Code, arguing that the changes were made unlawfully because Parliament was bypassed.In an application filed before the High Court in Gaborone on July 14, 2026, Butale is asking the court to declare Statutory Instrument No. 41 of 2026 unlawful and set it aside. He has also asked the court to order the Attorney General to pay the costs of the application.The Attorney General has been cited in two capacities - as the Government's principal legal adviser and as the Law Revision Commissioner.At the centre of the dispute is a Government Gazette published on March 27, 2026, in which Law Revision Commissioner Dick Bayford deleted paragraphs (a) and (c) of Section 164 of the Penal Code.Those provisions had criminalised what the law described as "unnatural offences," including consensual same-sex relations between adults.However, Butale stresses in his court papers that he is not challenging Botswana's landmark court decisions that decriminalised same-sex relations.The provisions were declared unconstitutional by the High Court in 2019 in a case brought by Letsweletse Motshidiemang.In 2021, the Court of Appeal upheld the ruling, finding that the provisions violated constitutional rights including liberty, dignity, privacy and protection from discrimination.Instead, Butale argues that his case is about how those provisions were later removed from Botswana's statute book.According to his affidavit, only Parliament has the constitutional authority to amend or repeal legislation.While the courts declared the provisions unconstitutional, they did not repeal them, meaning the Law Revision Commissioner had no power to delete them administratively.Court papers show that the Government itself appeared to share that view after the Court of Appeal ruling.In October 2022, the Government introduced the Penal Code (Amendment) Bill for Parliament to formally remove the provisions through legislation.Hansard extracts attached to Butale's application reveal that the Bill stalled in August 2023 when the Minister of Justice deferred its second reading after questions were raised over whether Parliament or the Law Revision Commissioner had the authority to remove provisions already declared unconstitutional by the courts.The affidavit states that the debate was fuelled in part by correspondence from Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), which argued that Parliament had no constitutional role once the courts had struck down the provisions and that the changes should instead be made administratively under the Revision of Laws Act.Although the Bill remained before Parliament, the Law Revision Commissioner later published Statutory Instrument No. 41 of 2026 removing the provisions from the revised laws.Butale argues that the Commissioner exceeded the powers granted under the Revision of Laws Act.He contends that the Act only allows the omission of laws that have already been repealed by Parliament, either expressly or by necessary implication.Since Parliament never repealed the provisions, he says they could not lawfully be deleted through an administrative process.He further argues that the Commissioner's actions unlawfully encroached on Parliament's exclusive constitutional role of making and amending laws.In support of his application, Butale sets out his public service record, saying he served as Member of Parliament for Tati East between 2014 and 2019 and held office as Assistant Minister of Trade and Industry before later serving as Assistant Minister of Health.He also states that he founded the Botswana Patriotic Front, later established the Botswana Republican Party, contested the 2024 presidential election and intends to contest a parliamentary seat in 2029 with the long-term goal of seeking the presidency.Butale is a pastor and former President of the Evangelical Fellowship of Botswana. His religious beliefs shape his opposition to the decriminalisation of same-sex relations.He argues that the administrative removal of the provisions denied him and others who share his views the opportunity to lobby Parliament for alternative legislative options, including possible constitutional amendments.The Notice of Motion requires the Attorney General to file the administrative record that informed the Commissioner's decision within 14 days of being served.The respondent has a further 14 days to indicate whether the application will be opposed and 21 days thereafter to file answering affidavits.No hearing date has yet been set.The case is expected to test an important constitutional question: whether laws declared unconstitutional by the courts can be removed from Botswana's statute book through an administrative process, or whether only Parliament has the power to formally repeal them.

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Butale takes Govt to court over Gay law removal