Rectification or Reform? The SI 41 of 2026 Precedent

Statutory Instrument No. 41 of 2026, the Rectification of the Laws (Penal Code) Order, published on March 27, 2026, formally deleted paragraphs (a) and (c) of section 164 of Botswana's Penal Code. These provisions previously criminalised "carnal knowledge against the order of nature" and related acts. This administrative action by the Law Revision Commissioner follows landmark High Court and Court of Appeal judgments in 2019 and 2021, respectively, which declared these colonial-era provisions unconstitutional. The instrument raises critical questions for legal practitioners regarding the precise scope of the Law Revision Commissioner's powers under the Revision of the Laws Act, and the distinction between statutory "rectification" and substantive legislative "reform" when judicial pronouncements necessitate changes to the statute book.

On March 27, 2026, Botswana's legal landscape witnessed a significant 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 permitting such an act. The deletion of these provisions marks 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.

This development is not merely a technical amendment; it prompts a critical examination of the mechanisms of legal change in Botswana. The core question that emerges for legal professionals is whether this act constitutes a straightforward "rectification" of an error, as implied by the instrument's title, or a delayed "reform" that, while judicially mandated, bypasses direct parliamentary legislative action. Understanding this distinction is crucial for appreciating the interplay between the judiciary, the executive (through the Law Revision Commissioner), and the legislature in shaping the country's legal framework, and for anticipating future applications of such administrative powers.

The provisions at the heart of SI 41 of 2026, specifically paragraphs (a) and (c) of section 164 of the Penal Code (Cap. 08:01), were relics of Botswana's colonial past. These sections criminalised consensual same-sex sexual acts, prescribing penalties of up to seven years imprisonment. Their presence on the statute books, though prosecutions were rare, perpetuated stigma and discrimination against LGBTQ+ individuals.

The constitutional validity of these provisions was directly challenged in the landmark case of *Letsweletse Motshidiemang v The Attorney General*. In a unanimous judgment delivered on June 11, 2019, the High Court of Botswana declared sections 164(a), 164(c), and 165 of the Penal Code unconstitutional. The court found them to be in violation of the rights to privacy, liberty, and dignity, and discriminatory under the Constitution of Botswana of 1966. This decision was subsequently upheld by the Court of Appeal on November 29, 2021, which unanimously rejected the government's appeal. The Court of Appeal notably held that the criminalising provisions "serve only to incentivise law enforcement agents to become key-hole peepers and intruders into the private space of citizens" and that they had "been rendered unconstitutional by the march of time and change of circumstances."

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. In legal parlance, rectification 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. It is an equitable remedy aimed at ensuring a document reflects the true, original intention of the parties.

Conversely, legal reform involves substantive changes to the law, often driven by shifts in societal values, policy objectives, or, as in this case, judicial pronouncements of unconstitutionality. Such reforms are traditionally the prerogative of the legislature, requiring parliamentary debate and enactment. The Law Revision Act (Cap. 01:03) empowers the Law Revision Commissioner (who is the Attorney-General) to prepare and publish revised editions of the Laws of Botswana and to "rectify any clerical or printing error... 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" by order. Section 12 of the Act, in particular, grants the Commissioner broad powers to rectify errors by order.

The question then becomes whether the deletion of provisions that were declared unconstitutional by the highest courts constitutes a "rectification" within the spirit and letter of the Law Revision Act, or if it amounts to a substantive "reform" that should ideally have been effected through parliamentary amendment. While the administrative action aligns the statute book with the judicial precedent, thereby correcting an "error" in the sense that the provisions were no longer legally valid, the nature of the change is undeniably substantive. It removes criminal offences that had existed for decades. This administrative approach, while efficient, could be seen as blurring the lines of the separation of powers, particularly if the Law Revision Commissioner's powers are interpreted too broadly to encompass substantive legislative changes without direct parliamentary oversight, even when such changes are judicially mandated.

However, it can be argued that the Commissioner's action is consistent with the duty to ensure the published laws accurately reflect the current legal position, including the impact of judicial decisions. The courts had already rendered sections 164(a) and (c) null and void. The SI, therefore, merely formalises the legal reality established by the *Motshidiemang* judgments, preventing the continued publication of unconstitutional provisions as if they were valid law. In this light, it serves a crucial function in maintaining the integrity and accessibility of the Laws of Botswana, ensuring that the public and legal practitioners are presented with an accurate reflection of the law as it stands. This perspective views the deletion as a necessary administrative clean-up following judicial invalidation, rather than an independent act of legislative reform.

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. For practitioners, this instrument provides much-needed clarity, definitively removing the legal basis for prosecuting consensual same-sex sexual acts under sections 164(a) and (c) of the Penal Code. This administrative step ensures that the written law now unequivocally reflects the constitutional protections affirmed in *Letsweletse Motshidiemang v The Attorney General*.

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 for human rights and legal certainty in Botswana. Practitioners should remain vigilant regarding the interpretation and application of the Revision of the Laws Act, particularly concerning the extent to which administrative orders can effect changes following judicial pronouncements. This precedent may influence how future judicial invalidations of statutory provisions are formally incorporated into the Laws of Botswana, potentially streamlining the process of aligning legislation with constitutional imperatives.