Botha was subponaed to appear before the commission in Cape Town on Friday morning, but he refused, prompting the commission to approach the attorney-general's office to enforce the law.
Commitee spokesman and Justice Minister Dullah Omar said at a press conference in Mafikeng, where the ANC is holding its national conference, that Botha should have honoured the subpoena of the TRC and answered questions put to him as former state president.
"By refusing to obey the subpoena, Mr Botha has defied the law and signalled he is above the law. We want to make it very clear that no person in our country, no matter what office such person occupies, is above the law," Omar said.
He welcomed the commission's approach to the attorney-general on charging Botha, adding: "Our view is that the law must take its course and that the attorney-general must ensure that this law is obeyed."
Omar said Botha had not been charged with any crime nor threatened with any charges, but was only asked to answer questions and disclose the truth about South Africa's apartheid past.
The whole basis of the truth and reconciliation process was that the truth should be disclosed and that there should be accountabily, and on that basis reconciliation could be established, the justice minister said.
Omar added: "There can be no reconciliation on the basis of suppresion of the truth."
ANC legal department head, Mathews Phosa, added it was disturbing that Botha wanted to be immune from co-operating with the TRC, even in the interest of nation building and reconciliation.