1 hour agoButale sues Attorney General over illegal deletion of Penal Code

The dispute concerns Statutory Instrument No. 41 of 2026, issued by the Law Revision Commissioner; a role held by the Attorney General. Butale argues that the instrument effectively deleted paragraphs (a) and (c) of Section 164 of the Penal Code, which for decades criminalized same-sex relations.

In his court filings, Butale notes that although the High Court in 2019 and the Court of Appeal in 2021 declared these provisions unconstitutional, the method used to physically remove them from Botswana’s laws bypassed parliamentary authority. In a founding affidavit filed this month, Butale – an attorney with over 25 years of experience and President of the Botswana Republican Party (BRP) – asserts that the Attorney General exceeded his legal mandate. He contends that while the Law Revision Commissioner has the power to correct errors or remove laws that have been expressly repealed, he lacks unilateral authority to repeal laws.

“It is only parliament that may repeal the law,” Butale states in his affidavit, citing Section 86 of the Constitution, which vests the power to make, amend, and repeal laws solely in the National Assembly. He argues that by issuing the Statutory Instrument, the Commissioner circumvented the constitutional requirement for legislative oversight. The timeline outlined in the court documents suggests a strategic bypass of a stalled legislative process.

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After landmark court rulings struck down the sodomy laws, the government introduced the Penal Code (Amendment) Bill, 2022, specifically to delete the offending sections. Butale alleges that this move allowed the executive branch to achieve through a shortcut what it was hesitant to bring to a final parliamentary vote. Beyond the legal technicalities, Butale’s challenge is rooted in his roles as a Senior Pastor and former Cabinet Minister. He maintains that although the court rulings rendered the sodomy laws “inoperable” for criminal prosecution, formally removing them from the written law is a matter of significant public interest.

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