Date: 2015-07-19

In view of the submission of Saraki and his cohort, these are the relevant factual questions. Factual questions are not abstract. They are concrete and therefore require empirically verifiable answers. These questions are (i) Do Senate Standing Orders 2015, on which the emergence of Saraki and Ekweremadu as Senate "President" and Deputy Senate "President" is based, exist? (ii) If they exist, then who are the authors of Senate Standing Orders 2015? (iii) Were Senate Standing Orders 2015 authored by a non-existent Eighth Senate/or its leadership at the time Saraki emerged as Senate "President"? (iv) If the answer is yes, then who are the authors of Senate Standing Orders 2015? (v) If the answer is no, then is it factually and physically possible for a Seventh Senate that was rested Sine Die at a time before the day of the emergence of Saraki as Senate "President" birth Senate Standing Orders 2015? Can one give birth to something in advance, as Saraki's cohort seem to be claiming with reference to Senate Standing Orders 2015?

If an act is void, then it is in law a nullity. It is not only bad but also incurably bad. - Lord Dennning.

In legal reasoning, scholars of law and people generally often draw a distinction between legal positivism and Natural law. Legal positivists tend to pay more attention to the letters of the law, independent of any ethical goal, while those who defend the natural law position tend to defend the view that law cannot be divorced from ethics.

Despite this broad distinction between legal positivism and natural law, the process that purportedly led to the emergence of Dr. Abubakar Olubukola Saraki as the Eighth Senate "President" and Mr. Ike Ekweremadu as the Eighth Deputy Senate "President" would seem to blur the distinction between the defenders of legal positivism and natural law. Saraki's illegality and immorality help to show that the distinction often drawn between legal positivism and natural law, as I broadly put it, may not be as fundamental and total as it appears.

Lord Denning, the British law luminary and philosopher of law, as quoted by eminent Nigerian lawyer (who pays close attention to the rigour, depth, fine and subtle qualities of law and ethics) Mr. Jiti Ogunye, underscores the fact that if an act is void, then in law it is a nullity. A legal nullity is not only bad, according to Denning, it is "incurably bad". In other words, no one can rescue or cure its badness. A legal nullity is morally worthless and therefore should be thrown away. And that is the case with Saraki's purported emergence as Senate "President".

Even when Mr. Ogunye is not making a moral argument, his legal submission shows that there are two forms of immorality that are associated with the alleged emergence of Saraki as Senate "President". One form of the immorality preceded the illegality of the election of Saraki as Senate "President." This immorality is the coup against his alleged party - APC. This is the coup against the party's Change Mission. This immorality is also the coup against the Nigerian people whose Senate Saraki wants to preside over as Senate "President".

And characteristic of the treachery of coup plotters, Saraki has painted the scenario of a dusk action – how he knew he was going to be "kidnapped" and "prevented' from becoming the Senate "President", how he had to escape being "kidnapped" by "sleeping" in his car and arriving very early at the Senate on the day of his coup against his alleged party and the Nigerian people. For those of us - fairly older generation of Nigerians who were witnesses to coup plots in Nigeria by the military, Saraki's stories read like civilianised coup stories without the usual martial music, which often accompany coups! This shows what led Saraki desperately to rest the process of his emergence as Senate "President" on a legal void, which produces what Jiti Ogunye, in agreeing with Lord Denning, calls a legal nullity. And any legal nullity Lord Denning says is bad and incurably bad. This moral concept of "bad" as applicable to a law is the interface that joins those who will interpret the law from a strict legal positivist angle and those who will interpret the law from a natural law angle.

...whatever is erected on a legal void and legal nullity cannot stand. And this Saraki illegality has extended into a moral void, given its legal void. This is why those who said the Senate "election" had "held" and Nigeria should move ahead are morally and legally wrong. No country, which is law governing moves ahead on an illegality, a legal and a moral void. Moving head in this questionable circumstance will be morally and legally shaky.

Thus, philosophically speaking, an incurably bad act raises a question about the character of the owner of the act. It is going to be difficult for any lawful human community, any law governing country to allow their Senate to make laws on a legal void and legal nullity which are incurably bad. This is the second immorality which co-exists with law as pointed out by Lord Denning in matters of law generally and by Lawyer Jiti Ogunye in his account of the incurable illegality which is associated with the emergence of Saraki as Senate "President".

This is Jiti Ogunye's legal submission. "First, by their own declarations and admissions, the organisers of the sham election on the floor of the Senate on the 9th of June, principally the Clerk of the National Assembly and his cohorts, claimed that they organised that election pursuant to the Senate Standing Orders, 2015, as amended, which purportedly provided that elections into the two offices shall be by secret ballot, instead of the open ballot as provided by Orders 72 and 73 of the Senate Standing Orders, 2011. As it has now become glaring, there was, in fact, no such Senate Standing Orders, 2015. As at the time of the dissolution of the 7th National Assembly, on the 4th of June, 2015, the operative Rules of the Senate were Senate Standing Orders, 2011. Between that dissolution and the inauguration of the 8th Senate on the 9th of June, the Senate was not in existence..."

Ogunye continued: "It was a period of interregnum. The Senate leadership of the Seventh Senate went with the dissolution of that Senate. Therefore, that leadership, acting alone, or in concert with the generality of the members of the 7th Senate could not have amended the Senate Rules to produce the Senate Standing Orders, 2015. By virtue of Order 110(5) of the Senate Standing Orders, 2011, two-thirds majority of the Senate shall decide proposed amendments and such amendments shall form part of the Rules of the Senate. This purported amendment is the act of forgery that is being alleged against David Mark, Ekweremadu and the Clerk of the National Assembly, which has now become the subject of police investigation."

Now let us put Mr. Ogunye's legal reasoning in layperson's terms. First, any lawful act must have a legal foundation in basic or secondary law. Second, the extant basic law for the election of the Senate President/Deputy President is Order 72 and Order 73 of the Senate Standing Orders, 2011. Third, Saraki and his group said Saraki and Ekweremadu were "elected" based on Senate Standing Orders, 2015 that purportedly amended Senate Standing Orders, 2011.

Thus, those who argue that the country should move ahead are wrong because legal and moral voids are incurably bad and they can only come from incurably bad sources. And besides the illegality, incurably bad sources will enact bad laws, which Nigeria as a country and the majority of Nigerians who fought for change cannot afford...

In view of the submission of Saraki and his cohort, these are the relevant factual questions. Factual questions are not abstract. They are concrete and therefore require empirically verifiable answers. These questions are (i) Do Senate Standing Orders 2015, on which the emergence of Saraki and Ekweremadu as Senate "President" and Deputy Senate "President" is based, exist? (ii) If they exist, then who are the authors of Senate Standing Orders 2015? (iii) Were Senate Standing Orders 2015 authored by a non-existent Eighth Senate/or its leadership at the time Saraki emerged as Senate "President"? (iv) If the answer is yes, then who are the authors of Senate Standing Orders 2015? (v) If the answer is no, then is it factually and physically possible for a Seventh Senate that was rested Sine Die at a time before the day of the emergence of Saraki as Senate "President" birth Senate Standing Orders 2015? Can one give birth to something in advance, as Saraki's cohort seem to be claiming with reference to Senate Standing Orders 2015?

Answers to these factual questions or failure to provide answers to these questions are the legal basis of the void upon which the emergence of Saraki as Senate "President" rests. Given the non-existence of Senate Standing Orders 2015 or given their forgery, this void is a legal nullity, a legal nullity which Lord Denning argued is incurably bad, and upon which Jiti Ogunye submitted that a legally elected 8th Nigerian Senate President does not exist before any known Nigerian law.

This is because whatever is erected on a legal void and legal nullity cannot stand. And this Saraki illegality has extended into a moral void, given its legal void. This is why those who said the Senate "election" had "held" and Nigeria should move ahead are morally and legally wrong. No country, which is law governing moves ahead on an illegality, a legal and a moral void. Moving head in this questionable circumstance will be morally and legally shaky.

Thus, those who argue that the country should move ahead are wrong because legal and moral voids are incurably bad and they can only come from incurably bad sources. And besides the illegality, incurably bad sources will enact bad laws, which Nigeria as a country and the majority of Nigerians who fought for change cannot afford, having successfully removed the previous PDP government of Goodluck Jonathan at the presidency and the PDP-controlled National Assembly, which were founts of badness and the stagnation Nigeria still suffers.

Nigerians must do the right thing; civilised, decent and law-governing people throw away incurably bad acts. Nigeria must lawfully throw away the present Abubakar Olubukola Saraki/Ike Ekweremadu illegal and un-ethical imposition in the Nigerian Senate.

Adeolu Ademoyo, aaa54@cornell.edu, is of the Africana Studies and Research Center, Cornell University, Ithaca, NY.