Rights group seeks to join challenge over deleted same-sex provisions, arguing Butale lacks legal standing and is pursuing an academic and political dispute.
Lesbians, Gays and Bisexuals of Botswana (LEGABIBO), an organisation that advocates for the rights of LGBTQ people, has applied to join Biggie Ganda Butale’s High Court challenge to the removal of Penal Code provisions that once criminalised consensual same-sex relations.
In an interlocutory application filed on 26 August, LEGABIBO launches a direct attack on Butale’s standing to bring the case and argues that the proceedings amount to an abuse of court process. The submissions are allegations before Justice William Moncho and have not yet been determined by the court.
STANDING CHALLENGED
Butale is challenging Statutory Instrument No. 41 of 2026, issued on 27 March, through which the Law Revision Commissioner deleted paragraphs (a) and (c) of section 164 from the published Penal Code. The provisions had already been declared unconstitutional by the High Court in 2019, a decision upheld by the Court of Appeal in 2021.
Butale accepts that the provisions are unconstitutional but argues that formally deleting legislation is Parliament’s function and that the Commissioner exceeded his powers.
LEGABIBO says he has failed to establish the legal interest required to challenge that decision. Addressing his reliance on his political career, future electoral ambitions and religious convictions, the organisation argues that these do not establish a current legal right affected by the Commissioner’s action.
The affidavit states: “Past membership of Parliament does not confer a continuing legal interest in powers presently vested in the National Assembly.”
On Butale’s plans to contest the 2029 elections, it adds: “His intended candidacy in 2029 is remote and contingent.”
POLITICAL CASE?
LEGABIBO goes further, describing the proceedings as “a sheer abuse of court process” and characterising Butale’s founding affidavit as revealing an “academic and purely political character.”
It argues that Butale has not shown that the Rectification Order imposed an obligation on him or deprived him of an enforceable legal right. According to the filing, the dispute instead concerns whether provisions already rendered inoperative should continue appearing in the Penal Code.
“The relief sought is academic,” LEGABIBO submits, adding that it would have “no lawful practical purpose for restoring invalid wording into the statute book.”
LEGABIBO also points to Butale’s political history, previous parliamentary and ministerial positions, intended 2029 candidacy and presidential ambitions, arguing that their inclusion supports an inference that the litigation has a significant political dimension.
It concludes: “Therefore, these proceedings are nothing short of sheer abuse of court process and are liable to be struck out with costs.”
The High Court must now determine LEGABIBO’s application to join the proceedings, while Butale is also facing a separate preliminary challenge from the State over his locus standi and whether his case discloses a sustainable cause of action.