Rectification or Reform? The SI 41 of 2026 Precedent

Statutory Instrument No. 41 of 2026, the Rectification of the Laws (Penal Code) Order, marks a significant development in Botswana's legal landscape. Published on March 27, 2026, it formally deletes paragraphs (a) and (c) of section 164 of the Penal Code, which previously criminalised consensual same-sex sexual acts. This administrative action by the Law Revision Commissioner follows landmark High Court and Court of Appeal judgments in 2019 and 2021, respectively, that declared these provisions unconstitutional. The instrument raises pertinent questions about the distinction between statutory "rectification" and legislative "reform," particularly when substantive legal changes, albeit judicially mandated, are effected through an administrative order rather than parliamentary enactment.

On March 27, 2026, Botswana's legal framework underwent a notable administrative adjustment with the publication of Statutory Instrument No. 41 of 2026, titled the Rectification of the Laws (Penal Code) Order. This instrument, issued by the Law Revision Commissioner, formally removed paragraphs (a) and (c) of section 164 of the Penal Code, provisions that historically criminalised "carnal knowledge against the order of nature" and related acts. This development is not merely a technical amendment; it represents the culmination of a protracted legal battle for LGBTQ+ rights in Botswana, aligning the written law with the constitutional pronouncements of the nation's highest courts.

The formal deletion of these colonial-era provisions, years after their judicial invalidation, prompts a critical examination of the mechanisms of legal change in Botswana. The core question that emerges is whether this act constitutes a straightforward "rectification" of an error, as implied by the instrument's title, or a delayed "reform" that bypasses direct legislative action. This distinction is crucial for understanding the interplay between the judiciary, the executive (through the Law Revision Commissioner), and the legislature, and has significant implications for the separation of powers and the principle of legal certainty within the Botswana legal system.

The provisions at the heart of SI 41 of 2026, specifically paragraphs (a) and (c) of section 164 of the Penal Code, were relics of Botswana's colonial past, criminalising consensual same-sex sexual acts and prescribing penalties of up to seven years imprisonment. These laws were challenged in the landmark case of *Letsweletse Motshidiemang v. State*, where the High Court of Botswana delivered a unanimous judgment on June 11, 2019. The High Court declared sections 164(a), 164(c), and 165 of the Penal Code unconstitutional, finding them to be in violation of the rights to privacy, liberty, and dignity, and discriminatory. The court also ordered the severance of the word "private" from section 167, which dealt with acts of gross indecency.

Following the High Court's decision, the Attorney-General appealed the ruling. However, on November 29, 2021, the Botswana Court of Appeal, in *Attorney General of Botswana v. Motshidiemang & Ors.*, upheld the High Court's judgment, thereby definitively decriminalising consensual same-sex sexual relations in Botswana. This made Botswana only the second country in Africa, after South Africa, to achieve such decriminalisation through a final court decision. The Court of Appeal notably distinguished its earlier 2003 decision in *Kanane v. State*, which had upheld section 164, by acknowledging a sufficient change in public attitude to warrant the striking down of the penal provisions.

The Law Revision Commissioner, a role held by the Attorney-General, is empowered under the *Revision of the Laws Act* (Chapter 01:03 of the Laws of Botswana) to prepare and publish editions of the Laws of Botswana. Section 12 of this Act specifically grants the Commissioner the authority to "rectify any clerical or printing errors appearing in the Laws of Botswana, or rectify in a manner not inconsistent with the powers of revision conferred by this Act any other error so appearing, or any other matter or omission requiring revision." This provision, particularly the phrase "any other matter or omission requiring revision," has been noted for its potentially broad scope.

The issuance of SI 41 of 2026 as a "Rectification of the Laws (Penal Code) Order" raises a fundamental legal debate concerning the distinction between rectification and reform. Rectification, in legal parlance, typically refers to the correction of minor errors, such as typographical mistakes, grammatical inconsistencies, or clerical omissions, that do not alter the substantive meaning or effect of a law. Conversely, legal reform involves substantive changes to the law, often reflecting shifts in societal values, policy objectives, or, as in this case, compliance with constitutional imperatives, and is traditionally the prerogative of the legislature.

In this context, the Law Revision Commissioner's action, while titled a "rectification," effectively implements a profound substantive change that decriminalises a category of human conduct. While the High Court and Court of Appeal had already declared sections 164(a) and (c) unconstitutional, their continued presence on the statute books created a disjuncture between the de jure and de facto legal positions. The Commissioner's order formally closes this gap, bringing the written law into alignment with the judicial pronouncements. However, the article excerpt notes that Parliament had "consciously deferred" these provisions, suggesting that a legislative process for their removal was not actively pursued or completed. This raises the question of whether the Commissioner's power under Section 12 of the *Revision of the Laws Act* is broad enough to encompass the deletion of provisions declared unconstitutional by the courts, or if such an act, despite its positive outcome, encroaches upon the legislative function of Parliament.

From a separation of powers perspective, the judiciary's role is to interpret and apply the law, including striking down unconstitutional provisions. The legislature's role is to enact, amend, and repeal laws. The executive, through bodies like the Law Revision Commissioner, typically ensures the orderly compilation and publication of laws. If the Commissioner's power to "rectify any other error so appearing, or any other matter or omission requiring revision" is interpreted to include the formal removal of judicially invalidated laws, it provides an efficient mechanism for maintaining legal coherence. This streamlines the process of updating the statute book to reflect constitutional realities, enhancing legal certainty and access to justice for citizens. Prior to this SI, despite the court rulings, the text of the Penal Code still contained the criminalising provisions, potentially causing confusion and perpetuating stigma.

Botswana's journey towards decriminalisation, initiated through judicial activism, places it among a growing number of African nations that have moved away from colonial-era anti-homosexuality laws. Countries like Angola, Seychelles, Mozambique, Sao Tome and Principe, and Lesotho have also undertaken similar reforms, either through legislative amendments or court decisions. The formal deletion via SI 41 of 2026 solidifies Botswana's position as a leader in human rights on the continent, demonstrating a commitment to aligning its laws with constitutional values and international human rights norms, even if the procedural route taken sparks academic debate.

The publication of Statutory Instrument No. 41 of 2026 represents a pivotal moment in Botswana's legal evolution, formally expunging discriminatory provisions from the Penal Code that had long been rendered unconstitutional by the courts. While the nomenclature of "rectification" for such a substantive change may invite academic scrutiny regarding the precise scope of the Law Revision Commissioner's powers and the boundaries of the separation of powers, the practical outcome is unequivocally positive. It ensures that the written law accurately reflects the constitutional rights affirmed by the High Court and Court of Appeal, thereby enhancing legal certainty and providing a clear message of non-discrimination to all citizens.

For legal practitioners, this development necessitates a thorough understanding of the updated Penal Code and the full implications of the *Motshidiemang* judgments. It reinforces the principle that judicial pronouncements on constitutionality have immediate and binding effect, and that statutory instruments can play a crucial role in formally aligning the statute book with such rulings. Practitioners should remain vigilant for any further legislative or administrative actions that clarify the procedural aspects of such "rectifications" or reforms, ensuring that Botswana's legal framework continues to evolve in a manner consistent with its constitutional commitments and human rights obligations.